Common Examples of SLAPPs

Posted on December 16, 2011 by Adrianos Facchetti

Potential clients and attorneys often ask me what kinds of claims are typically subject to an anti-SLAPP motion. The correct answer is that regardless of the label given a claim, it may still be subject to Code of Civil Procedure 425.16 if it arises from petitioning or free speech activity. Having said that, in general terms, there are some common claims and factual scenarios that give rise to a SLAPP. 

Claims that often trigger anti-SLAPP protection are defamation, malicious prosecution, abuse of process, and business torts like intentional interference with prospective business advantage and intentional interference with contract. While any cause of action may be subject to the statute, including breach of contract, for example, those are the most common claims.

Factual scenarios that come up often are the following:

  • Claims based on previous litigation activity: I often see cases that arise from litigation activity. To the average lawyer, they may not be obvious as SLAPPs. For example, a suit for defamation based on an unsuccessful restraining order; or a breach of a covenant not to sue, both of which are subject to the statute. 
  • Claims based on consumer conduct: An increasing number of lawsuits arise from negative consumer reviews, for example. These kinds of lawsuits are generally brought by professionals like dentists, doctors, lawyers, and psychiatrists who depend upon their online reputation to generate leads. While each case is different, some patterns emerge. Usually the former client or patient is dissatisfied with services they've received, so they post a critical review on sites like RipOffreport, Yelp, CitySearch, and other such sites.The professional will then bring suit for defamation, intentional interference with prospective economic advantage, and intentional infliction of emotional distress. Sometimes these posts are the work of competitors, but this is rare in my experience. Usually it is because the professional has not satisfied two critical needs of the customer: to be heard and understood. 
  • Community Speech: Another common category of SLAPPs involves speech regarding what I call community issues. These may arise either offline or online and will typically involve speech about a public official, like a city councilman, or speech about a proposed redevelopment project.

While SLAPPs come in different varieties, there are certain patterns like the ones mentioned above. Before filing a lawsuit, you should know whether it is potentially subject to an anti-SLAPP motion because of the consequences of the motion: dismissal and possible hefty attorneys' fees.

 

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Is A Public Figure's Sex Life A Matter of Public Interest Under the Anti-SLAPP Statute?

Posted on December 1, 2011 by Adrianos Facchetti

Political and sports figures have recently argued that their sex lives are not a matter of public interest. Consider, for example, Herman Cain: in response to allegations from Ginger White that she had a decade-plus affair with him, Mr. Cain's attorney, Lin Wood, said that those kinds of allegations have no place in public discourse and that Cain would not discuss them.

David Beckham, too, insisted in his lawsuit for libel against In Touch magazine that the story about his alleged sexual interaction with a prostitute was not a matter of public interest.

So the question is whether a political candidate's or a world famous athlete's sex life is a matter of public interest. The answer is not so simple and can be argued both ways. Under the first prong of the anti-SLAPP statute, it can contended, under fairly recent authority, that a public issue is anything in which the public is interested. Applying that standard to Beckham's case, one can definitely make a strong argument that the allegations about his sexual dalliances with a prostitute is a matter of public interest. After all, Beckham is internationally recognized as a sex symbol. And there had been previous stories of his alleged marital infidelity. It could also be contended, however, that a public figure's sexual encounters are private and therefore not a matter of public interest. The essence of that argument is that even public figures have some level of privacy to which their entitled. Unfortunately for Beckham, in his case, the District Court determined that the anti-SLAPP statute applied, so his case was dismissed. Apparently he has appealed that decision.

The same analysis could be applied to Mr. Cain's situation as well. Assume he files suit against Ms. White for defamation. She could then file an anti-SLAPP motion. As in the Beckham situation, White could argue that there were previous stories of Cain's alleged inappropriate relationships with women. But unlike Beckham, Cain was never known as a sex symbol nor did he promote himself as such. 

The most interesting aspect of these stories is the idea that any person, let alone a public figure, could lose all right to privacy. No California court has squarely decided this issue in the anti-SLAPP context, but it's only a matter of time.

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