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New York State Looks to Broaden anti-SLAPP Statute Adding Additional Tool to the Defense Litigator’s Arsenal

Author: Amy Chambers

Guest Editor: Raymond K. Wilson Jr.

April 6, 2020 3:06pm

Anti-SLAPP statutes provide procedural mechanisms to deter meritless lawsuits meant to chill speech or petitioning activity, otherwise known as “Strategic Lawsuits Against Public Participation” or “SLAPP” suits.  In essence, these lawsuits are used to burden the defendant with the cost of a legal defense until the defendant abandons whatever speech gave rise to the lawsuit.  In response to these types of lawsuits, many jurisdictions developed anti-SLAPP laws, which permit the defendant to quickly dispose of cases that arise from protected activity, and obtain attorney fees and costs upon successfully doing so.

New York’s anti-SLAPP statute is quite limited in scope and effect as compared to other states, such as California.  For example, in California, defendants may file an anti-SLAPP motion (special motion to strike) in any action arising from any act by a “person in furtherance of the person’s right of petition or free speech…in connection with a public issue.”[1]  If the defendant’s motion is successful, the plaintiff is required to pay the defendant’s attorney fees.[2]

In contrast, the New York anti-SLAPP statutes are quite narrow, and only offer protection against SLAPPs brought by individuals or entities seeking permits or applications from a government body.  Additionally, even if a defendant in New York can establish the suit arises from protected activity, the court is nor required to award legal fees, as the imposition of attorney fees and costs is merely discretionary rather than mandatory.[3]

New York Senate Bill S52 looks to amend New York’s anti-SLAPP laws to offer broader protections and mandatory sanctions.  The proposed changes to the statute would bring it more in line with states like California.   For example, California defines protected activity to include “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.”[4]  In contrast, the current New York anti-SLAPP laws protects only those defendants who speak out about a matter related to a government application.

Under Senate Bill S52, protected activity is defined as “(1) any communication in a place open to the public or a public forum in connection with an issue of public concern; or (2) any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition,” thus essentially mirroring the California definition.

Takeaway

If Senate Bill S52 passes, insured defendants and their counsel defending against claims in New York state courts will have an additional tool in their belt when handling claims involving issues related to protected speech and activity.  For instance, in the employment context, employers may be able to use an anti-SLAPP motion to quickly dismiss complaints, filed by employees, and arising from adverse employment actions, such as legally mandated investigations and write ups.

Defense litigators and their clients should also expect to see a surge in appellate cases related to anti-SLAPP motions should Senate Bill S52 become law.  Despite the passage of California’s anti-SLAPP statutes in 1992, the California appellate courts continue to routinely issue opinions regarding the interpretation of the law.  Given Senate Bill S52’s similarity to California’s statute, litigators and appellate counsel can look for guidance from California’s court opinions when interpreting the law if it should pass.

We will continue to monitor the progress of Senate Bill S52 and provide updates as the law changes.

 

[1] Cal. Code Civil Proc. § 425.16(b).

[2] Cal. Code Civil Proc. § 425.16(c).

[3] N.Y. Civ. Rights Law §70-a(1)(a)

[4] Cal Code Civil Proc. § 425.16(e)(3)

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