SLAPPed around

SLAPP is a term we hear entirely too often, simply because the procedure it describes is used entirely too often. Let Michael Bates explain:

In a Strategic Lawsuit Against Public Participation, a plaintiff seeks to punish the defendant for expressing his opinion or stating a fact he doesn’t like aired publicly by subjecting him to a costly legal process. The SLAPP plaintiff can achieve his objective — silencing criticism — even if he ultimately loses his case in court. The cost in time, money, and anxiety of defending the lawsuit will deter the defendant from future criticism and may also deter others from speaking out.

This sort of behavior is intolerable, and we can expect more of it — in some of those other states, maybe. Oklahoma, meanwhile, is discouraging it:

The Oklahoma Citizens Participation Act authorizes a special motion to dismiss to be filed and heard early in the process. The motion must be filed within 60 days after the suit is filed, and discovery is suspended until the court rules on the motion. The hearing on the motion must be held within 60 days of its filing, (The time may be extended to 90 or 120 days under special circumstances, but 120 days is the limit.) After the hearing, the court has 30 days to rule.

The defendant must first establish that the suit is based on, relates to, or is in response to his exercise of his freedom of speech, freedom to petition government, or freedom of association.

In response, the plaintiff must establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” The defendant can obtain dismissal of the case if he can establish “by a preponderance of the evidence each essential element of a valid defense” to the plaintiff’s claim.

What makes this different from an ordinary motion to dismiss is that the judge can go beyond “the four corners” of the complaint. The court doesn’t have to take the plaintiff’s charges at face value.

If the court dismisses the case, the court is required to award court costs, reasonable attorney fees, and legal expenses as well as sanctions “sufficient to deter the party who brought the legal action from bringing similar actions.”

If the motion to dismiss is “frivolous or solely intended to delay,” the court may award costs to the plaintiff.

The Act was signed into law by Governor Fallin last week, after passing both houses with not a single Nay vote. Typically for Oklahoma legislation, it goes into effect on the first of November.







1 comment

  1. jsallison »

    30 April 2014 · 7:42 pm

    And failing a motion to dismiss, how about ‘loser pays’?

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