NEW HOPE FOR ANTI-SLAPP BILL
The New Jersey Assembly has overwhelmingly passed a bill that would protect people who speak out on public issues from baseless lawsuits meant to intimidate them into silence.
The legislation, A-603, targets SLAPP suits, the shorthand for what are known as Strategic Lawsuits Against Public Participation.
SLAPP suits, which often occur in the context of opposition to real estate development projects, pitting people from the community against a wealthy corporation, are meant to deter opposition because of the high cost of defending them, even if they are eventually thrown out for lack merit or withdrawn once the developer or other SLAPP plaintiff has succeeded in quelling critics.
In a leading New Jersey case on SLAPP suits, LoBiondo v. Schwartz, decided in 2009, the Court referred to scholarly articles that defined the problem as “a nationwide trend in which large commercial interests utilized litigation to intimidate citizens who otherwise would exercise their constitutionally protected right to speak in protest against those interests.” The “goal of such litigation was not to prevail, but to silence or intimidate the target, or to cause the target sufficient expense so that he or she would cease speaking out.”
A-603 would provide a quicker and clearer path to early dismissal of SLAPP suits, before the legal fees and costs had a chance to mount.
It defines a “SLAPP lawsuit” as “intended to deter or suppress the desire of any citizen to act in furtherance of the right of public advocacy on issues of public interest.” Such issues are those “related to: health or safety; environmental, economic, or community well-being; the government; a public figure; or a good, product or service in the marketplace” and exclude statements directed to the speaker’s commercial interest and other private interests.
SLAPP suits are often framed as claims for defamation, tortious interference with business or contract, civil conspiracy or abuse of process, nuisance or constitutional or civil rights violations, according to the A-603.
Under the bill, SLAPP suit defendants would file papers asking that the case be dismissed and those requests would be expedited to “the extent possible “in order to dispose of the case quickly in order “to prevent the unnecessary expense of protracted litigation.”
They would bear the initial burden of presenting prima facie evidence that the case is a SLAPP suit.
Once they make that showing, the burden would shift to the purported SLAPP plaintiff to show that they have evidence to support their claims, are likely to prevail, and that the SLAPP defendant caused them “actual compensable harm” and has no legal or factual basis to have the case thrown out.
The filing of a motion to dismiss a case on the basis that it is a SLAPP suit stays all discovery and proceedings in the case until the motion is decided but the judge, for “good cause,” can allow limited discovery that will assist in deciding the motion.
A defendant who succeeds in getting a case thrown out as a SLAPP suit would be entitled to the costs incurred in the litigation, including legal fees. To deter a repetition, an additional sum could be awarded as sanctions against the plaintiff. An earlier version of the bill prescribed a $10,000 sanction but the current version does not set a specific amount and leaves it up to the judge.
On the other hand, those who try and fail to get a case thrown out as a SLAPP suit would have to pay the other side’s costs and legal fees if the court finds that the request was frivolous or solely intended to cause unnecessary delay. But they do not risk sanctions and the fact that they failed could not be used against them later in the litigation or otherwise affect the standard of proof.
The bill also blocks those SLAPP suit filers from evading costs by pulling the suits after a request to dismiss has been submitted but before it has been decided. Judges must still award the fees and costs of filing the application to dismiss, “as appropriate.”
A-603 also specifically authorizes use of the common law tort for malicious abuse of process as the basis for “SLAPP-back” actions or claims against those who bring SLAPP suits and lays out the elements of such a claim: malice, absence of probable cause and a “special grievance” suffered by the claimant, such as interference with liberty or property or “severe and permanent economic damages.”
Not every non-meritorious suit aimed at public expression is covered by the bill. Civil actions by government entities to enforce laws protecting public, safety health and welfare would be exempted, as would SLAPP-back suits and claims against those engaged in selling or leasing of goods or services based on statements of fact made for marketing purposes or directed to potential buyers.
Though A-603 had strong support, with 69 of the Assembly’s 80 members voting in favor and only three “no” votes (there was one abstention and seven not voting), its prospects remain uncertain.
Twice before, the Assembly has approved similar legislation, which then died because no Senate bill passed.
The first time was in June 2005, when 79 Assembly members supported A-1077, and no one voted against it. A Senate counterpart was filed in December of that year but did not get a committee hearing.
The issue lay dormant in the legislature until July 2014, when Joseph Lagana, a Democratic Assemblyman from Bergen County, sponsored A-3505. It passed the Assembly 68-4 in February 2015.
But it had no Senate counterpart and died when the session ended.
Lagana reintroduced the identical measure as A-603 in January 2016, the start of the current session and it quickly cleared the Assembly Judiciary Committee in a March 2016 vote.
By the time it reached the Assembly floor a year later, however, it had been extensively reworked.
Many of the changes were prompted by objections from the Administrative Office of the Courts, or AOC, whose opposition reportedly helped block prior bills.
Daniel Phillips, the AOC’s Legislative Liaison, articulated its concerns at the October 2014 hearing before the Assembly Judiciary Committee on last session’s A-3505.
Phillips agreed that the use of lawsuits to censor, silence and intimidate people who want to speak out on public issues is not an appropriate use of the justice system and supported “some measure to try to curtail that.”
He pointed out that it is not clear to the courts on filing which cases are SLAPP suits, though they are generally defamation matters.
He blamed the demise of the 2005 bill on the inability to compromise on staying discovery on the filing of a motion to dismiss a SLAPP suit. Because discovery is needed to determine the validity of the claim, the AOC favored a different approach, comparable to what was done with medical malpractice cases, where certificates of merit must be filed early on to avoid dismissal. He thought that model could also work for SLAPP suits, in conjunction with the statute and court rule regarding frivolous litigation.
He also raised concerns about a possible explosion of litigation, as occurred in California after it enacted an anti-SLAPP law and said the shifting of the burden of proof on filing a motion for a SLAPP dismissal was a policy measure rather than a procedural one that should be dealt with in the statute.
The current bill addresses the AOC concerns with its provisions for limited discovery, burden of proof and exemptions.
As of now, no companion bill to A-603 has been introduced in the Senate but a knowledgeable source says that is expected to happen soon.
New Jersey Appleseed, which supports A-603, has successfully defended people hit with SLAPP suits and has helped mold the law in New Jersey to afford greater protection against SLAPP litigation.
For example, it won sanctions against a lawyer and a developer who brought frivolous lawsuit against a citizen who spoke out against a development project at a local municipal board hearing and won a favorable settlement for community activists from the Fund for a Better Waterfront, who were sued in retaliation for speaking out about the environmental impact of blasting practices by Stevens Institute of Technology at a construction site in Hoboken.
The Hoboken case established that statements of public concern are constitutionally protected and not considered defamatory when they rely on information debated within the scientific community and confirmed that corporations cannot make claims based on the assertion that they are victims of “invasion of privacy,” or are being portrayed in a “false light.” Further, NJ Appleseed defeated “prima facie tort” as a catch-all cause of action that could be used against SLAPP activists and community groups trying to exercise their legitimate rights of expression.
NJ Appleseed has just agreed to take on the defense of a SLAPP suit brought by Jane Jannarone, a member of the state Pinelands Commission who voted on Feb. 24 to approve a highly controversial pipeline through the New Jersey Pinelands. Jannarone sued 14 individuals who allegedly defamed her by posting negative comments about her and her support for the pipeline on the Facebook page for her real estate business, based in Vineland.
She asserts that they damaged her reputation as a realtor which will lead to loss of income and have caused her “extreme mental anguish and distress.” There is also a count for tortious interference with prospective economic advantage.
Among the alleged comments cited in the complaint were that Jannarone was on her cell phone during the public hearing on the pipeline and thus, “I would not trust her to listen to your concerns,” and accusations that she is “rude and unprofessional, a “terrible person” running a “horrible company,” a “piece of ?!!!!!,” a “sellout” a “greedy cunt,” a “disgrace” who cares “about nothing more than the mighty dollar” and a “shill for the gas company and Chris Christie.” One defendant allegedly paraphrased The Rolling Stones song, “Sympathy for the Devil,” substituting the lyric about a man with “wealth and taste” with a reference to Jannarone as someone who “stole the pinelands soul and faith.”
Appleseed will be representing 12 of the defendants in the case, Jannarone v. Mendel, CUM-L-206-17, which was filed on March 20 in Cumberland County Superior Court.