Two Courts Uphold UPEPA Fee Awards After Voluntary Dismissals

Forbes

07-06-2025

The UPEPA is weathering appellate decisions just fine so far.
The Uniform Public Express Protection Act (UPEPA) in just a few years has become the most ubiquitous body of Anti-SLAPP law in the world. Like most other Anti-SLAPP laws, the UPEPA provides for a special motion to cause the dismissal at an early stage of meritless litigation which infringes upon a person's free speech and related rights. If the defendant in such a case wins the special motion and the offending cause of action is dismissed, then the defendant who brought the special motion must be awarded their attorney fees, expenses and costs in relation to the special motion. This provides a powerful deterrent to such meritless litigation being brought against them in the first place.
But what if, after the UPEPA special motion is brought, the plaintiff who brought the offending cause of action decides not to contest the special motion but instead just voluntarily dismisses it? In that instance, can the defendant who went to the trouble of preparing and filing the UPEPA special motion still be awarded attorney fees for their trouble?
The answer to this question was recently answered by two courts in different states (New Jersey and Kentucky) on two consecutive days, and which reached the same conclusion. We'll examine the opinions of those courts now. These opinions are Satz v. Keset Starr, 2025 WL 1522032 (N.J.App., May 29, 2025), and Johnson v. Kearney, 2025 WL 1536078 (Ky.App., May 30, 2025).
In the Satz case in New Jersey, the defendants circulated a flyer that advocated that the plaintiff get a religious divorce. The flyer contained an unfavorable photo of the plaintiff and suggested a protest outside of the home of the plaintiff's parents. The plaintiff sued the defendants for a variety of things related to the flyer and asked for $30 million in damages. When the plaintiff moved for default judgment, the defendants responded to the motion with request that the case be dismissed under the UPEPA. Ultimately, the court granted the defendants' motion and that same day the plaintiff voluntarily dismissed its complaint. The defendants then moved to reopen the case for the purpose of assessing fees, costs and expenses under the UPEPA. The trial court, however, refused to consider the defendants' request on the basis that there was no evidence that the plaintiff filed his action was either frivolous or intended to harass the defendants. The defendants appealed this ruling.
Now turning to the Johnson case in Kentucky, where two candidates in the 2024 Republican primary for state attorney were squabbling over an endorsement by the local Fraternal Order of Police. Ultimately, one candidate sued the other, and the other candidate (the defendant) filed a UPEPA special motion to dismiss. Concluding that the plaintiff had not acted in bad faith, the trial judge encouraged the plaintiff to voluntarily dismiss the complaint with prejudice to refiling. The plaintiff did dismiss the complaint and the judge refused to award the defendant fees, costs and expenses because the case had been dismissed. The defendant appealed this ruling.
The courts in both Satz and Johnson reached the same conclusion in the same way. Both courts determined that the outcome could be determined by interpreting the plain text of the UPEPA without the need to reference external sources.
The statutory interpretation of the UPEPA in these cases was very straightforward:
First, the UPEPA provides that a voluntary dismissal of a challenged cause of action does not affect the moving party's right to seek attorney fees, costs and expenses;
Second, the UPEPA deems a party's voluntary dismissal of a challenged cause of action ― while a UPEPA special motion is pending ― to establish that the moving party prevailed on special motion; and
Third, the UPEPA states that the award of such attorney fees, costs and expenses is mandatory where the moving party has prevailed on the special motion.
Therefore, where a cause of action has been voluntarily dismissed while a UPEPA cause of action is pending, the moving party is entitled to a mandatory award of attorney fees, costs and expenses despite the voluntarily dismissal. This was the ultimate ruling of both courts, which reversed the trial court and remanded the cases for the calculation of the attorney fees, costs and expenses to be awarded to the respective moving parties in each case.
The Satz opinion additionally noted that one reason for this outcome was to keep a party who brought an offending cause of action from simply dismissing the cause of action and then possibly re-asserting it later. This would defeat the purpose of the UPEPA to free the defendant from having to further litigate the cause of action.
The Johnson opinion commented on the fact that "good faith" by the party who filed the cause of action is not any defense to the UPEPA's mandatory award of attorney fees, costs and expenses ― it doesn't matter at all why that party brought the cause of action, only that it infringes upon protect rights.
ANALYSIS
Both of these appellate courts arrived at the result desired by the UPEPA drafting committee when we were writing the Act: In the event of a voluntary dismissal after a special motion has been brought, the moving party will still be entitled to mandatory attorney fees, costs and expenses.
There was considerable debate within the UPEPA drafting committee over this outcome, mostly due to something called the innocent violator.
Basically, the drafting committee realized that the cases which infringe upon protected expression could be divided into two categories. The first category is the classic SLAPP case which is intended to harass, punish, or retaliate, etc., against the speaker for the purpose of making them shut up. Recall that the acronym SLAPP stands for Strategic Lawsuit Against Public Participation. The 'Strategic' part of this is that the action would intended ― specifically designed ― to cause harm to the speaker by forcing them to incur legal costs in defense. This wrongful intent characterizes this first category of cases infringing protected expression.
The second category is exactly the opposite of the first: The second category is where the plaintiff who brought the cause of action had no intent to misuse the cause of action, but instead stumbled into an infringement of public expression because their counsel was lazy or careless, or the public expression issue was very technical and not easy to spot. This is the aforementioned innocent violator.
The drafting committee recognized that an innocent violator should be treated differently than somebody who intentionally brought abusive litigation. But how should that treatment differ? There were suggestions that a warning letter should be sent before the special motion was brought, that the innocent violator should be allowed to dismiss or reframe the infringing cause of action without penalty, or that attorney fees should not be assessed against an innocent violator. In their opinions, the Satz and Johnson courts discuss these things as well (although whether the plaintiffs in those cases could be characterized as innocent violators is somewhat dubious).
What was the solution?
The idea of a warning letter ― similar to that required before a Rule 11 motion for sanctions is brought ― seemed like a good one. But there were at least two problems with this solution. First, it would be a complete waste of time to have a warning letter sent to the first (abusive) category of violators, who at any rate didn't deserve a warning. Second, if a warning letter was sent and the action thereafter voluntarily dismissed before the filing of the special motion, then the defendant (speaker) compensated for the legal fees for having the letter written and such letters can be quite costly. Thus, the warning letter idea was rejected.
The next idea, being that the plaintiff should be allowed to voluntarily dismiss the infringing cause of action after the special motion was filed, was similarly rejected. Preparing and filing the special motion is costly, and if the plaintiff was simply allowed to voluntarily dismiss without any penalty, then the defendant could not be compensated for having to prepare and file the special motion. This was also a bad idea for the reason that a first category plaintiff engaged in abusive litigation could simply later re-file the same cause of action and cause the defendant the same trouble all over again. So this idea was rejected too.
The third idea was to not assess attorney's fees against an innocent violator. While this sounds at first like a good idea, it is actually a terrible one. The problem here is the UPEPA would first have to define what an innocent violation was, and that would draw into question the plaintiff's intent. The parties would then have to litigate the plaintiff's intent, which would tremendously exacerbate the very litigation that the UPEPA was supposed to have quickly and efficiently gotten rid of in the first place. That idea was quickly axed.
Where the UPEPA ended up is accurately described in the Satz and Johnson opinions: The plaintiff may voluntarily dismiss the cause of action that is the subject of the special motion, but that voluntary dismissal is treated as a resolution of the special motion in favor of the speaker and thus entitles the speaker to the mandatory award of attorney fees.
This is a suitable middle-ground solution. By voluntarily dismissing the special motion, the plaintiff cuts off the attorney fees incurred by the speaker at the special motion ― the speaker could not, for instance, ask for attorney fees to file a reply brief (since no opposition brief was filed) or to attend the hearing on the special motion (which is no longer necessary).
For those who would suggest that this outcome is harsh for an innocent violator, the bottom line is that if somebody is going to litigate in an area which might implicate protected expression issues, then they should be particularly careful. One who has stumbled into a violation of protected expression will not be rewarded by a 'get out of jail' card for their carelessness.
This is basically what the Satz and Johnson opinions conclude and in this respect they are both right on target.