Strategic lawsuit against public participation, or SLAPP, is a legal strategy dating back to the 1960s by large corporations and political figures to suppress those speaking out against them.
“SLAPP lawsuits were never intended to be successful on their legal merits,” says Andrew Stebbins, Partner and Head of the Defamation Practice Group at Buckingham, Doolittle & Burroughs, LLC. “The intent is to effectuate a settlement from those who do not have the resources to defend themselves, leading to the person agreeing to stop saying what they had been saying about the person, entity or corporation that filed the lawsuit.”
That practice led to anti-SLAPP laws, which aim to provide defendants in speech-related lawsuits the ability to challenge the validity of the accusations against them at a much earlier stage in litigation.
“These laws were designed to allow litigants to have an early way out of a lawsuit that was filed for an improper purpose,” says Christina Williams, an Attorney at Buckingham, Doolittle & Burroughs, LLC. “The common perception is that this is strictly a defamation remedy for defamation lawsuits. But in the new Ohio statute, it applies to any claims that involve a person’s freedom of speech.”
Smart Business spoke with Stebbins and Williams about anti-SLAPP laws, and when and how businesses might encounter them.
In what situations would a business face anti-SLAPP laws?
A business owner would encounter anti-SLAPP laws through a speech-related legal claim that they file over a negative review or something negative that was said by a person or media entity (notably, disputes involving speech between competitors are not subject to this statute in Ohio law). When such a suit is filed by a business, the defendant is likely to file an anti-SLAPP lawsuit, which would compel the plaintiff to prove their case has merit in an expedited process before it could proceed to trial.
To show that the claim should be reviewed under the anti-SLAPP law, the defendant has to prove their statements fall within the free speech rubric of protected activities. If that burden is met, then the plaintiff has to show that their claim has merit with enough evidence to support every component of the claim — that the statement is false or defamatory, and the plaintiff has been hurt by it. If the case meets the standards, then it’s not a SLAPP lawsuit and it can proceed.
What does the anti-SLAPP process involve?
An anti-SLAPP challenge starts when the party claiming they are the target of a SLAPP — typically the defendant — submits a written motion to the court explaining why the case is a SLAPP. The defendant — or party seeking the dismissal — must ask for dismissal, in writing, within 60 days of being served with the complaint. Then, the plaintiff gets an opportunity, in writing, to rebut the defendant’s argument and show why the case has merit. Next, the court will hold an oral hearing where the parties argue their positions before the judge. The hearing has to be held within sixty days of when the defendant files their initial motion. Then the court has to make its decision about whether or not to grant or deny the motion within 60 days of having the hearing.
If the plaintiff passes the anti-SLAPP hurdle and the motion is denied, the plaintiff still has to present evidence and proof of damages to a jury or a judge at trial. Prevailing in the anti-SLAPP stage only allows the lawsuit to move to trial.
If a plaintiff loses an anti-SLAPP motion, the case is over and the court is required to enter an award of attorney’s fees to the defendant. If the plaintiff wins, the court can order the defendant to pay the plaintiff’s attorney’s fees, but it’s not required.
How should businesses approach such situations?
Companies must evaluate any potential defamation or speech-related claim and present them in the strongest way. Otherwise, they could lose the motion, the case, and be compelled to pay attorneys fees to the defendant. So, before pursuing legal action, consult with an attorney who has experience dealing with speech and defamation statutes.
Anti-SLAPP laws are not a bar to pursuing meritorious claims. If somebody is hurting or attacking the business, or spreading false statements, the company can and should pursue legal action against them. Anti-SLAPP laws are just another aspect that must be navigated when pursuing speech and defamation lawsuits. ●
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