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.