Anti-SLAPP Law Modernized: The Uniform Public Expression Protection Act

By Jay Adkisson

A phrase-by-phrase examination of the Uniform Public Expression Protection Act, including insights as to why the drafting committee of the Uniform Law Commission chose particular drafting language for what is hoped will become a uniform Anti-SLAPP law throughout the United States.

• Language: English
• Publisher: BookBaby
• Release date: Mar 4, 2022
• ISBN: 9781667834672

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COPYRIGHT AND LIBRARY OF CONGRESS INFORMATION

© 2022 by Jay D. Adkisson. All right reserved. No part of this work may be reproduced in whole or in any part without the express written permission of the author; however, the author does grant in advance the rights of use of reasonable parts of this work by the courts, litigants, and for noncommercial legal research and educational purposes. No claim is made to the text, prefatory notes, or reporter's comments of the Uniform Public Expression Protection Act, which is subject to the copyrights and other rights of the Uniform Law Commission, and which is reprinted herein with the express permission of the Uniform Law Commission.

ISBN: 978-1-6678346-7-2

ACKNOWLEDGMENTS

The author wishes to thank Carl A. Berthold, Jr., for his efforts in editing this work.

Of course, this book would not have been possible but for all those who had a hand in giving birth to the Uniform Public Expression Protection Act itself, and whom the author warmly thanks.

The then-Executive Director of the Uniform Law Commission, Liza Karsai and Pennsylvania Commissioner Lisa Jacobs encouraged and assisted with my submission of the idea for a uniform Anti-SLAPP statute to the ULC's Scope & Program Committee. The Chair of Scope & Program, Carl Lisman, who was also the ULC's President, guided my submission through the preliminary Study Committee process and also later participated substantively in Drafting Committee meetings and debates.

Lane Shetterly, Commissioner from Oregon, as the Chair of the Drafting Committee deserves accolades for his ability to both reconcile opposing viewpoints and ultimately to make firm decisions about divided issues, in addition to his deft handling of the UPEPA through the final approval process. Professor Robert T. Sherwin from Texas Tech's Law School, who served as the Reporter, similarly provided yeoman service in politely shooing away the worst ideas while negotiating with James Concannon, Commissioner from Kansas, who represented the Style Committee but also contributed important substantive points. Thomas S. Hemmendinger from Rhode Island as the Division Chair also made numerous material contributions and kept the Drafting Committee focused. Laura L. Prather from Texas, who served as the main American Bar Association Advisor to the Drafting Committee, kept us advised of the issues surrounding Texas' revision of its Anti-SLAPP statute so that we could avoid those, and also served as our unwavering bulkhead to keep issues of intent out of the final draft.

The following Commissioners who served on the Drafting Committee each have their own fingerprints all over the final adopted version — there is scarcely a provision within the UPEPA that does not compel me to recall their particular insights and suggestions —being Jerry L. Bassett from Alabama, James Bopp Jr. from Indiana, Effie V. Bean Cozart from Tennessee, Elena Duarte from California, Leon M. McCorkle from Ohio, William J. Quinlan from Illinois, V. Lowry Snow from Utah, and D. Joe Willis from Oregon. Events progressed smoothly thanks to the work of Kaitlin D. Wolff, the Legislative Program Director for the ULC, who spent many long hours researching the Anti-SLAPP laws of the states, helped to shepherd the UPEPA through the adoption process, and even now is heading up enactment efforts nationwide.

No acknowledgment would be complete without recognizing the unsung heroes of the Drafting Committee, that being the four attorneys from California who provided tremendous substantive input: Thomas R. Burke of San Francisco, who proved to be a walking encyclopedia of Anti-SLAPP law, Stanley W. Lamport, Ben Sheffner, and Ashley H. Verdon, the latter three from Los Angeles, and all who provided critical insight into the development and foibles of California's Anti-SLAPP law.

If I have omitted somebody from this acknowledgment, such was not intentional and — just as with the inevitable errors to be found herein — the responsibility for such is mine and mine alone.

— Jay D. Adkisson, Henderson, Nevada, 2022

ABOUT THE AUTHOR

Jay D. Adkisson is a managing partner of the law firm of Adkisson Pitet LLP and is admitted to practice law in Arizona, California, Nevada, Oklahoma and Texas. A 1988 graduate of the University of Oklahoma College of Law, with honors, and a member of the Oklahoma Law Review, Jay has twice been an expert witness to the U.S. Senate Finance Committee and is currently the Forbes.com contributor on wealth preservation issues. Jay has also served as an ABA Advisor to the drafting committees of the Uniform Voidable Transactions Act, the Uniform Protected Series Act, the Uniform Registration of Canadian Money Judgments Act, and the Uniform Public Expression Protection Act. He has also served as the Chair of the American Bar Association Committees on Captive Insurance and on Insurance and Financial Products. His books include Asset Protection Concepts & Strategies (McGraw-Hill 2004), Adkisson's Captive Insurance Companies (iUniverse 2007), and The Charging Order Practice Guide (Am.Bar.Assoc. 2018). Jay is an honorary member of the California Association of Judgment Professionals, a Hall of Fame member of the National Association of Estate Planning Councils, and a Fellow of the American College of LLC and Partnership Attorneys. His law practice is in the area of creditor-debtor law and captive insurance litigation.

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https://jayadkisson.com

ABOUT THE EDITOR

Carl A. Berthold Jr is and associate attorney with the law firm Adkisson Pitet LLP and is admitted to practice law in California. Carl received his legal education from Loyola Law School, Los Angeles with a concentration in corporate law. During law school, Carl directly counseled clients in need through bankruptcy via Loyola Law School’s Consumer Bankruptcy Clinic. Prior to obtaining is JD, Carl received his Bachelor’s degree from Louisiana State University where he also worked for a prominent plaintiff’s personal injury firm that focused on catastrophic injury, wrongful death, and medical malpractice. Carl has experience defending a wide range of clientele ranging from municipalities to Fortune 100 companies to individuals. As well as being an integral part of litigation teams and developing/implementing new litigation strategies to defend consumer warranty cases in California, specifically consumer warranty cases involving fraud and misrepresentation claims. Currently, Carl practices general business litigation and personal injury.

TABLE OF CONTENTS

I. INTRODUCTION

II. OVERVIEW

Phase One — Applicability: Does The Challenged Cause Of Action Fall Into A Protected Area Of Speech Of Conduct?

Movant's Motion and Opening Brief

Respondent's Opposition Brief

Phase Two — Prima Facie Viability: Even If The Respondent's Cause of Action Falls Within The Scope Of Protected Speech Or Conduct, Can The Respondent Show That It Has A Good Case Nonetheless?

Phase Three — Legal Viability: Can The Movant Show That The Cause Of Action Has Nonetheless Failed As A Matter Of Law?

Concluding Thoughts

III. Scope And Applicability

Inclusions Of Scope — § 2(b)

Inclusion Of Expression Made Within A Governmental Proceeding

Inclusion Of Expressions Made About An Issue In A Governmental Proceeding

Inclusion Of Constitutionally-Protected Expressions

Exclusions From Scope § 2(c)

Exclusion Of Causes Of Action Against Governmental Actors

Exclusion Of Expressions By Governmental Actors In An Emergency

Exclusion For Certain Commercial Speech

Conclusion

IV. The Special Motion

V. The Automatic Stay

The General Rule Relating To The Stay

Discretionary Enlargement Of The Stay

Duration Of The Stay

Discovery During The Stay For The Special Motion

Exception To The Stay For Costs, Fees and Expenses

Exception To The Stay For Voluntary Dismissal By The Respondent

Exceptions To The Stay For Unrelated Motions And Motions Relating To Imminent Threats To Public Health Or Safety

VI. The Hearing

VII. Proof And Evidence

VIII. Analysis And Dismissal

Phase One: Applicability — Is The Cause Of Action Within The Scope of § 2?

Burden On The Movant: Establish Cause Of Action Falls Within Scope

Burden Shifts To The Respondent: Establish Cause Of Action Not Within Scope

Phase Two: Factual Viability — Can The Respondent Make Out A Prima Facie Case?

Phase Three: Legal Viability — Will The Movant Prevail Anyway?

Voluntary Dismissal Prior To The Hearing

IX. Appeals

Appellate Rights Of The Movant

Appellate Rights Of The Respondent

X. Costs, Attorney's Fees and Litigation Expenses

Where The Result Is Mixed

Sanctions Against Counsel

XI. Construction And Uniformity

XII. Applicability In Federal Court

XIII. SLAPPBack

Appendix: The Uniform Public Expression Protection Act

I. INTRODUCTION

Here we consider the Uniform Public Expression Protection Act (UPEPA, pronounced You-Pep-Uh), adopted by the Uniform Law Commission (ULC) in 2020, which was drafted for the purpose of providing a consistent body of Anti-SLAPP law among the states. Although I was an American Bar Association (ABA) adviser to the drafting committee, the commentary in this and the following articles represents my viewpoint and mine alone — not those of the ABA, the ULC, or anybody else. Other folks who were involved in this project, many of them admittedly smarter than I, more experienced with this subject matter, or frequently both, might and probably will disagree with my commentary on some points — and perhaps on a few points quite vigorously. Again, this is my own unofficial commentary, based on my own sometimes faulty memory and notoriously poor note-taking, and should be so digested.

First we must understand the problem that UPEPA is meant to solve, which are lawsuits brought by a party that doesn't care so much about winning as about punishing the other party with legal fees, legal expenses, and emotional harassment so long as the litigation may be made to last. These sorts of abusive lawsuits were traditionally known as strike suits but in more modern times they have become known as SLAPP suits, with the acronym meaning Strategic Lawsuit Against Public Participation.

A very common scenario is where a journalist writes an article which, although perfectly true, displeases somebody very wealthy. To try to force a retraction of the article, the wealthy person brings a defamation lawsuit against the journalist with the threat of bankrupting the journalist with legal fees. Another common scenario is where former best friends and lovers are now embroiled in a bitter divorce, and one of the ex-spouses files a defamation lawsuit against the other to try to force a better settlement. These are just a couple of examples out of a wide range of scenarios where bad people bring abusive litigation to try to extort an innocent party lacking the economic power to fight back.

Why has such abusive litigation so infested our legal system? The first answer is that the courts have generally done a terrible job in either identifying at any early stage or ultimately redressing such litigation — and almost never preventing the harm in the first place. The second answer is that procedural rules themselves are amenable to being abused, so long as the abusive party is able to draft a pleading that can withstand an ordinary motion to dismiss (or demurrer in some states). Meeting this pleading standard is not at all difficult since the courts are required, by other arcane procedural rules, to presume that what the abusive party has pled is actually true, even if it has not the slightest connection with Planet Reality. In other words, abusive litigation can survive and thrive because of a legal loophole which rewards crafty — though dishonest — drafters who use the court's own rules in their favor and then sit back smiling because the court's cannot effectively deal with their junk before it has wrought its intended harm.

The answer to this came not from the courts, which for centuries have shown a remarkable ability to utterly ignore their own most obvious and serious failings, but through the state legislatures which passed Anti-SLAPP statutes. The effect was to force on the courts by way of legislative fiat the necessary remedy to this sort of abusive litigation. This point, that Anti-SLAPP statutes represent an instance of forced judicial reform cannot be emphasized enough. Early iterations of Anti-SLAPP laws were sometimes initially met by the courts with some variant of the legislature really doesn't mean that, and the legislatures then had to re-draft their statutes to include so-called purposes clauses to essentially tell the courts that they really did. The legacy of this struggle is found in the UPEPA when we get to § 11's mandate to expansive interpret parts of the Act to protect parties from abusive litigation.

A quick bit is necessary about the process by which UPEPA was adopted. The UPEPA drafting committee consisted of a diverse collection of folks who volunteered a great deal of their time and effort, and in some cases no insubstantial travel and lodging expenses. Their experience with Anti-SLAPP laws ranged from a few who had almost no experience with this body of law specifically but were simply very good lawyers, to a few who were undoubtedly among the contemporary experts in the field. The rest (including Yours Truly) were somewhere in the middle.

The most important thing to know on this point is that the committee members individually and as a whole proceeded with the singular motivation to simply create the best uniform legislation that could be created — there were no hidden agendas or self-motivations pulling the UPEPA one way or the other on any issue. Although the committee contained at least a few hardcore Republican conservatives and probably an equal number of hardcore Democratic liberals, with (again) most of us being somewhere in the middle, there was never anything like an ideological struggle or the pulling of UPEPA one way or the other. Persons who may claim later that the UPEPA evinces some sort of ideological bent by the drafting committee members in any direction, other than their collective belief that Anti-SLAPP laws generally are a good thing, would be utterly wrong.

To the extent that there was any external pressure, it came in the form of concerns about the so-called enactability. It is not enough that the final drafting product be good, or even perfect if such a thing is even possible, but that it also be amenable to passage by the state legislatures when the time came. These concerns were identified by considering the history of enactment and later amendment of the existing Anti-SLAPP acts nationwide. In particular, the Texas experience was most telling, because while the UPEPA drafting committee was engaged in its work, the Lone Star State was itself going through a big brouhaha to amend its relatively new Act (and which amendments were adopted by the Texas legislature before UPEPA reached its final form).

Within these concerns of enactability, those of the trial lawyers nationwide were probably given the greatest weight, but not because of any particular substantive issue. Instead, it was recognized that the trial lawyers in many states have a very powerful and energetic lobbying presence which could impede the enactment of UPEPA should they so choose. The trial lawyers' concerns fell into three buckets. First, that any legislation not seek to limit the right to jury trials found in the federal and states constitutions. Second, that the legislation not alter the so-called American Rule by which in most cases each party bears its own attorney's fees. Third, that certain types of cases be excluded from the ambit of Anti-SLAPP laws. As drafted, the UPEPA met these first two concerns without much trouble, but as to the third it was determined to exclude from UPEPA's scope only a minimum of types of cases, and leave the consideration of further exclusions to the enacting legislatures since such exclusions tend to be only local in importance anyway.

Here it should be