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April 28, 2014 Via Email and U.S. Mail Skeaveney@Pasenate.Com Correspondence from: Marc J. Randazza, Esq. [email protected] Reply to Las Vegas Office MARC J. RANDAZZA via Email or Fax Licensed to practice in Massachusetts California Nevada April 28, 2014 Arizona Florida Via Email and U.S. Mail RONALD D. GREEN Licensed to practice in [email protected] Nevada JASON A. FISCHER Senator Lawrence Farnese, Jr. Licensed to practice in Florida Pennsylvania State Senate California U.S. Patent Office 1802 S. Broad Street Philadelphia, PA 19145 J. MALCOLM DEVOY Licensed to practice in Nevada Re: Senate Bill 1095 CHRISTOPHER A. HARVEY Licensed to practice in California Dear Senator Farnese: A. JORDAN RUSHIE Licensed to practice in Pennsylvania I was recently able to attend the Pennsylvania Legislature’s meeting in New Jersey Philadelphia, Pennsylvania on April 24, 2014, and provide testimony regarding D. GILL SPERLEIN your proposed anti-SLAPP law, SB 1095. SLAPPs, or Strategic Lawsuits Against Licensed to practice in California Public Participation, are a problem I have seen not only in Pennsylvania, but throughout the nation. I practice First Amendment law nationally, and my firm ALEX J. SHEPARD Licensed to practice in and I have been active in defending SLAPP suits filed in Pennsylvania, California California, New York, Florida, Arizona, and Nevada. We use anti-SLAPP statutes when they are available, and found them to be to the decisive benefit of defendants in spurious defamation actions. www.randazza.com I have attached my curriculum vitae to expand upon my qualifications for discussing Pennsylvania’s proposed anti-SLAPP law. In the course of my firm’s Philadelphia work, we have seen numerous anti-SLAPP statutes that work exceptionally well 2424 East York Street Suite 316 and should be models for other states. Among them are the anti-SLAPP laws of Philadelphia, PA 19125 California, Washington, Oregon, and Nevada. In contrast, there are anti-SLAPP Tel: 215.385.5291 Fax: 215.525.0909 laws that are so narrow and rigid in application that they may as well not exist at all. Illinois’ anti-SLAPP law is an unfortunate example of this. Until October 1, Las Vegas 2013, so too was Nevada’s. I was able to assist Nevada in adopting a new anti- 3625 S. Town Center Dr. Suite 150 SLAPP law that incorporated the best elements of California and Washington’s Las Vegas, NV 89135 laws, and hope to assist Pennsylvania in doing the same. Tel: 702.420.2001 Fax: 305.437.7662 1. Immunity From Suit, Rather Than Mere Immunity From Liability Miami 2 S. Biscayne Boulevard Suite 2600 While SB 1095 grants “immunity” to successful movants, the bill appears to Miami, FL 33131 provide immunity from liability, instead of immunity to suit. This issue was Tel: 888.667.1113 Fax: 305.397.2772 addressed in Englert v. MacDonnell, 551 F.3d 1099, 1106-07 (9th Cir. 2009), San Francisco 345 Grove Street San Francisco, CA 94102 Tele: 415.404.6615 Fax: 415.404.6616 Ltr. Re SB 1095 April 28, 2014 Page 2 of 5 where the United States Court of Appeals for the Ninth Circuit concluded that Oregon’s anti-SLAPP statute provided immunity from liability, but not immunity from being sued – as a result, an unsuccessful anti-SLAPP motion could not be appealed until the end of trial. (Oregon has since amended its anti-SLAPP statute, Oregon Revised Statutes § 31.150, to remedy this problem.) Requiring a case to proceed to the end of trial before a defendant can obtain appellate review is contrary to the purpose of any anti-SLAPP statute. Other states’ anti-SLAPP statutes, including California, Oregon, and Nevada, allow for an immediate appeal of any order denying an anti-SLAPP motion. This ensures that a movant will have appellate review of a trial court’s decision denying their anti-SLAPP motion before being subjected to the expenses of litigation. Adding language to SB 1095 that allows for an expedited interlocutory appeal of any order denying an anti-SLAPP motion will ensure that the law fulfills its true purpose and protects defendants from dubious lawsuits brought in retaliation to exercising their First Amendment rights. 2. Protection For All Speech About Matters of Public Concern – Not Just Petitioning the Government SB 1095 protects speech “on issues of public interest in connection with enforcement or implementation of government action related to an issue of public interest.” The anti-SLAPP statutes for California, Washington, Oregon, Nevada, Texas, and the District of Columbia have all embraced broader definitions of the speech covered by the statute, with beneficial results. Restricting the application of SB 1095 to speech in connection with government action severely limits the reach of the proposed anti-SLAPP law, and prevents it from being used in the consumer realm where it is most needed. As written, SB 1095 would not protect an individual sued for posting a true – but critical – review of a restaurant that gave food poisoning to dozens of people on Yelp.1 Broadening the scope of protected speech will allow the anti-SLAPP law to reach its potential and offer protections where they are needed most. Providing protection to speech made to the government is important, but fails to encompass the full range of scope that needs protection from retaliatory and baseless litigation. Adopting a broad interpretation of what speech constitutes a matter of public concern, without limiting it to speech made to petition the government, will ensure that this proposed statute fulfills its intended purpose. 3. Avoid Making the Statute So Strict That it Becomes Unusable Illinois’ current anti-SLAPP statute, the Citizen Participation Act (“CPA”) has been in effect since 2007, and is confoundingly useless. Like the proposed law in SB 1095, Illinois’ CPA is limited to speech made in connection with advocating to or petitioning the government. Among the CPA’s many shortcomings are its requirements that the speech at issue must be only “genuinely aimed at procuring favorable government action,” and the Illinois Supreme Court’s interpretation of the law to not even apply absent evidence that plaintiff brought the suit with an improper intent. Sandholm v. Keuker, 962 N.E. 418 (Ill. 2012). The result of Illinois’ precedent in interpreting the CPA has been to 1 A similar situation recently arose in Las Vegas, where a popular restaurant served tainted meat to dozens of people. If Nevada lacked a robust anti-SLAPP statute, it is likely that the restaurant may have sued its critics without fear of legal consequence – a tactic I have seen used by other large companies and professionals, such as dentists and doctors. Ltr. Re SB 1095 April 28, 2014 Page 3 of 5 make the statute useless. The Illinois Supreme Court’s standards for applying the statute are impossible to meet and, worse, unsupported by the statute. The people of Illinois would be better off without any anti-SLAPP statute – at least then, they could lobby to have one created, rather than be saddled with the useless one they have. SB 1095 seems to be on the right track in this regard. As mentioned elsewhere in this letter, it is important to make the standard for granting an anti-SLAPP motion as easy as possible, without any inquiry into the plaintiff or defendant’s intent. As seen in Illinois, any such inquiry can be used to render the anti-SLAPP statute completely useless. To ensure that the statute is useful, the inquiry should be kept as simple as possible: If the underlying conduct is a valid exercise of First Amendment freedoms, and the plaintiff cannot show a reasonable likelihood of prevailing in the action, the anti- SLAPP motion is granted. This test is found in the anti-SLAPP statutes for California, Washington, Oregon, Nevada, and Texas. Such a standard dispenses with any subjective inquiries that can be used to significantly change and undermine the anti-SLAPP statute’s application. While SB 1095 comes close to this goal, an effective anti-SLAPP statute is dependent on simplicity and ease of implementation. 4. SB 1095 Should Include Mandatory Fee-Shifting and Statutory Minimum Damages As written, SB 1095 provides trial courts with the discretion, but not the obligation, to award damages, costs, and attorneys’ fees to a prevailing party. This is inconsistent with other anti-SLAPP statutes and does not go far enough. California, Washington, Oregon, Nevada, Texas, and the District of Columbia all require an award of attorneys’ fees and costs in favor of a successful movant. Some states go above and beyond mere fee-shifting: Washington requires an award of $10,000 in favor of a successful anti-SLAPP movant, R.C.W. 4.24.525(6)(a)(ii), while Nevada allows a court to award up to $10,000 in damages in favor of a successful movant under NRS 41.670(1)(b). The reason for making these damages mandatory is twofold. First, requiring a plaintiff who files meritless litigation in order to suppress First Amendment-protected expression will discourage such undesirable lawsuits. By having an effective anti-SLAPP statute, the problem of abusive litigation in retaliation against public participation will cure itself – potential plaintiffs will fear the financial cost of having their own action dismissed. (To say nothing of the obloquy.) Second, requiring a plaintiff to pay the costs and fees for a successful motion will incentivize defendants to bring these motions, and incentivize attorneys to represent these defendants. In states such as California, where an award of costs and fees is mandatory, skilled attorneys compete to represent defendants in SLAPP suits. Such a result is a boon for the public, the courts, and the legal profession. In contrast, refusing to require courts to award costs and attorney’s fees to a successful anti-SLAPP movant is a double disincentive.
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