The SLAPP Back

by Patrick Lane on April 3, 2018

gregblackwellIn 2014, the Oklahoma legislature enacted the Oklahoma Citizen’s Protection Act, 12 O.S. §§ 1430, et seq. The Act is similar to several enacted all over the country which are commonly referred to as Anti-SLAPP statutes.  

The acronym stands for Strategic Litigation Against Public Participation.  These statutes, as discussed in detail below, protect citizens from the threat of litigation for exercising rights given by the United States and Oklahoma Constitutions.


The Purpose Behind Anti-SLAPP Acts

The Supreme Court of Minnesota recently summarized the general policy underlying Anti-SLAPP statutes as follows:

[Constitutionally protected] rights are threatened by SLAPP suits, which are generally filed in order "to use litigation to intimidate opponents' exercise of rights of petitioning and speech," even when, as is often the case, the party filing the suit does not care whether it actually prevails. Leiendecker v. Asian Women United of Minn., 848 N.W.2d 224, 228 (Minn. 2014).

Oklahoma's Anti-SLAPP Act protects against lawsuits filed in response to a party's exercise of the right of free speech, right to petition or right of association. 12 O.S. § 1432(A). This protection is far reaching considering the breadth of these rights.

For example, the exercise of the right to petition includes documents submitted in or pertaining to judicial proceedings, such as pleadings or lis pendens.

 

An Anti-SLAPP Motion to Dismiss

The Act provides for a specific mechanism to defeat SLAPP suits early in litigation before the litigation machinery is fully engaged by use of a motion to dismiss. A motion to dismiss under the Anti-SLAPP statutes is unlike other motions to dismiss provided for by Oklahoma law in that the burden is not on the moving party.  

Anderson v. Wilken, 2016 OK CIV APP 35, ¶ 4, 377 P.3d 149, 151.  All the moving party is required to show is that the case relates to one of the rights enumerated in 12 O.S. §1432(A).  Id.; see also, Steidley v. Cmty. Newspaper Holdings, Inc., 2016 OK CIV APP 63, ¶ 3, 383 P.3d 780, 782.

Once that showing is made, the plaintiff bears the burden in resisting dismissal. In order to satisfy this burden, the plaintiff must establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.”  12 O.S. § 1434(C).

In the event a plaintiff is able to establish, with the required evidence, a prima facie case, the case must nevertheless be dismissed where a defendant shows it can prove a valid defense. 12 O.S. § 1434(D). Where the plaintiff’s burden is not carried or where a defendant establishes a defense to the claims, the lawsuit must be dismissed – Section 1434 is not permissive but mandatory.

 

Prevailing Party Fees and Costs

Oklahoma’s anti-SLAPP statutes, like similar statutory schemes in other states, provide for an award of costs and attorney fees to a defendant who prevails on a motion to dismiss.

The law mandates that a court award a prevailing “movant, court costs, reasonable attorney fees, other expenses and sanctions ‘as the court determines sufficient to deter the party who brought the legal action from bringing similar actions…’” Steidley v. Cmty. Newspaper Holdings, Inc., 2016 OK CIV APP 63, ¶ 3, 383 P.3d 780 (quoting 12 O.S. § 1438(A)).

 

Real World Example

In All Steel Carports, LLC, Plaintiff, v. Larry D. Perry, Defendant, District Court of McClain County, State of Oklahoma, Case No. CJ-2017-137, the plaintiff sued the defendant, a disabled veteran, for erecting a sign on his property.  

The sign offers for sale a car port-storage unit combo that the defendant purchased new from one of the plaintiff’s dealers. The defendant experienced problems from the outset of the construction of the car port on his property.  

Furthermore, the car port leaked when it rained.  The sign he posted contained statements of fact and opinion, which the defendant was free to offer under the First Amendment of the United States Constitution, as well as Article 2, section 22 of the Oklahoma Constitution.

In response to the sign, the plaintiff filed suit alleging claims for defamation and wrongful interference. The litigation team from Ball Morse Lowe successfully obtained an Anti-SLAPP dismissal from the trial court. 

The Oklahoma Constitution expressly provides the right of free speech, right to petition and right of association to the citizens of this state.  The lawful exercise of these constitutionally protected rights cannot serve as the basis for a lawsuit.

For more information about the protections of the Oklahoma Citizen's Protection Act, also known as the Anti-SLAPP Act, contact Ball Morse Lowe's Litigation Team.  

 

Topics: Litigation