The “SLAPP” back: Uniform Public Expression Protection Act revives Washington SLAPP protections
September 2, 2021 • Brian C. Nadler
On July 25, 2021, Washington’s new anti-SLAPP statute went into effect. “SLAPP” stands for “Strategic Litigation Against Public Participation.” In other words, the statute is meant to deter meritless lawsuits used to silence or chill the exercise of free speech. The new statute, at Chapter 4.25 RCW, is the Uniform Public Expression Protection Act (UPEPA).
Washington previously had an anti-SLAPP statute on the books. However, the Washington Supreme Court invalidated that prior statute as enacted because it found those provisions violated the protected right to a trial by jury. This new statute replaces the invalidated one and works to resolve the issues with the prior statute.
The UPEPA applies to a claim asserted in a civil action against a person based on any one of the following 3 categories:
(1) "[C]ommunications in a legislative, executive, judicial, administrative, or other governmental proceeding";
(2) "[C]ommunication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding"; and
(3) "[E]xercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Washington state Constitution, on a matter of public concern."
As with most laws, the UPEPA contains some exemptions. As a non-exhaustive list, this includes certain public agency statements made in an official capacity, public agency statements to enforce a law to protect against an imminent threat to public health or safety, claims against a person’s communication in the sale or lease of goods or services, insurance claims, no-contact and antiharassment orders, consumer protection act claims, certain negligence claims, and claims under federal law.
The first three exemptions are inapplicable when the claim arises “from any act of that person, whether public or private, related to the gathering, receiving posting, or processing of information for communication to the public”, for artistic works, or “communication, gathering, receiving, posting, or processing of consumer opinions or commentary, evaluations of consumer complaints, or reviews or ratings of businesses.”
A defendant may now file a “special motion for expedited relief” to dismiss all or part of these claims against them within 60 days of being served with a pleading violating the anti-SLAPP statute. In ruling on this motion, the court must consider “the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment under superior court civil rule 56.”
Importantly, this special motion stays all other proceedings in the case, including discovery. This is critical because when it comes to litigation, oftentimes it’s the process itself that can allow for abuse. Being sued is very expensive and takes up a lot of time, regardless of the outcome. Parties can spend tens or hundreds of thousands of dollars before even getting to the trial itself. The anti-SLAPP statute provides a way to avoid that.
The UPEPA requires the court dismiss all or part of a claim if (1) the moving party establishes the chapter applies; or (2) the responding party fails to establish, under one of the enumerated exemptions, that this chapter does not apply; and either (3) the responding party fails to establish a prima facie case as to each essential element of the cause of action; or (4) the moving party establishes either that (a) the responding party failed to state a cause of action upon which relief can be granted, or (b) there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the cause of action.
The enforcement mechanism for an anti-SLAPP motion which makes it particularly important is this: a successful movant is entitled to their attorneys’ fees and costs, assuming it provided the proper 14-day statutory notice before filing the motion. Conversely, the respondent can only get fees and costs if the court determines that the “motion was not substantially justified or filed solely with intent to delay the proceeding.” And the movant is entitled to an appeal if the court denies the motion either in whole or in part.
Ultimately, this change presents a way to deal with parties that seek to use lawsuits in a manner which abuses the court system to try and chill the speech of others. However, it also raises a new caution to parties seeking to sue and that is to make sure they avoid the potential pitfalls raised by the re-implementation of this statute.
Brian Nadler focuses his practice on appeals and dispositive motion practice in state and federal court. His practice also involves assisting trial counsel in reviewing appellate strategy and preserving issues for appeal. He has experience briefing cases on a wide range of issues, working to interpret technical issues for a more generalist audience of judges. Brian has briefed cases in the state and federal courts of appeals. Brian has experienc...