Latest news with #AntiSLAPP
Forbes
21 hours ago
- Politics
- Forbes
Two Courts Uphold UPEPA Fee Awards After Voluntary Dismissals
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 ( May 29, 2025), and Johnson v. Kearney, 2025 WL 1536078 ( 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.
New York Post
20-05-2025
- Politics
- New York Post
Associated Press moves to dismiss defamation claim from veteran who defeated CNN in court: ‘Without merit'
The Associated Press filed a motion to dismiss U.S. Navy Veteran Zachary Young's defamation lawsuit on Monday, insisting the complaint is 'without merit' and unjustly challenges the outlet's free speech rights. Young successfully sued CNN for defamation earlier this year after saying the network smeared him by implying he illegally profited when helping people flee Afghanistan on the 'black market' during the Biden administration's military withdrawal from the country in 2021. Advertisement When covering the trial in January, Associated Press media reporter David Bauder wrote that 'Young's business helped smuggle people out of Afghanistan.' Young's legal team has said that the Associated Press article 'went even further than CNN's falsehoods,' and updated the original complaint to include 40 AP articles that use the term 'smuggling' to describe criminal conduct. The court previously ruled that Young did nothing illegal, and he is seeking nearly $500 million in a defamation suit against the AP. The AP believes Young's suit should be tossed. Advertisement 'It is premised on the facially implausible contention that The AP made the exact same accusation—that Young had engaged in criminal activities in connection with his Afghan evacuations—that the Article made clear a jury had rejected in the CNN case,' AP's legal team wrote in the motion to dismiss. 'The AP now asks the Court to dismiss this lawsuit with prejudice under Florida's AntiSLAPP statute… which protect 'the rights of free speech in connection with public issues,'' the motion continued. 3 The Associated Press has filed a motion to dismiss U.S. Navy Veteran Zachary Young's defamation lawsuit. SOPA Images/LightRocket via Getty Images 'This is a classic SLAPP lawsuit – a 'lawsuit that lack[s] legal merit but threatens to chill speech by imposing crushing legal expenses.'' Advertisement The AP believes its reporting is protected by Florida's fair report privilege, which its legal team wrote 'safeguards the ability of the press to report about legal and other official proceedings.' In addition, the AP's legal team wrote that the article 'cannot be reasonably read as conveying anything defamatory' about Young or his company, Nemex Enterprises. 3 The organization claims the complaint is 'without merit' and unjustly challenges the outlet's rights of freedom of speech. CNN Young's attorney, Daniel Lustig, said the motion to dismiss was expected, and he expects the Navy veteran to prevail. Advertisement 'AP's position is that words don't mean what they mean. That was CNN's defense. Zachary Young spent nearly three years fighting that fiction and after a court ruled in his favor and a jury affirmed it, the matter should have ended. But now he's back in the same courtroom, facing the same defense, advanced by the same lawyers, insisting once again that a plainly criminal accusation doesn't actually accuse him of a crime,' Lustig told Fox News Digital. 'If this feels familiar, it's because it is. The only thing that's changed is the logo on the letterhead. AP called Mr. Young a human smuggler, broadcast it around the world, and now claim they meant it in a nice way. When he asked them to correct a single word, they refused,' he continued. 3 Young was able to sue CNN for defamation earlier this year as the network implied that he illegally profited helping people flee Afghanistan on the 'black market' while the military withdrawal took place under President Biden in 2021. AP The AP has referred to the lawsuit as 'frivolous' in past statements to the press. The motion was filed with the 14th Judicial Circuit Court in Bay County, Florida, the same court where Young prevailed against CNN. Young is seeking at least $18 million in economic loss, $50-75 million in reputational harm, $5-10 million in emotional distress and $300-350 million in punitive damages, according to a Notice of Filing.
Yahoo
20-05-2025
- Business
- Yahoo
Associated Press moves to dismiss defamation claim from veteran who defeated CNN in court
The Associated Press filed a motion to dismiss U.S. Navy Veteran Zachary Young's defamation lawsuit on Monday, insisting the complaint is "without merit" and unjustly challenges the outlet's free speech rights. Young successfully sued CNN for defamation earlier this year after saying the network smeared him by implying he illegally profited when helping people flee Afghanistan on the "black market" during the Biden administration's military withdrawal from the country in 2021. When covering the trial in January, Associated Press media reporter David Bauder wrote that "Young's business helped smuggle people out of Afghanistan." Young's legal team has said that the Associated Press article "went even further than CNN's falsehoods," and updated the original complaint to include 40 AP articles that use the term "smuggling" to describe criminal conduct. The court previously ruled that Young did nothing illegal, and he is seeking nearly $500 million in a defamation suit against the AP. Navy Veteran Seeks Nearly $500 Million In Defamation Lawsuit Against Associated Press The AP believes Young's suit should be tossed. "It is premised on the facially implausible contention that The AP made the exact same accusation—that Young had engaged in criminal activities in connection with his Afghan evacuations—that the Article made clear a jury had rejected in the CNN case," AP's legal team wrote in the motion to dismiss. Read On The Fox News App "The AP now asks the Court to dismiss this lawsuit with prejudice under Florida's AntiSLAPP statute… which protect 'the rights of free speech in connection with public issues,'" the motion continued. "This is a classic SLAPP lawsuit – a 'lawsuit that lack[s] legal merit but threatens to chill speech by imposing crushing legal expenses.'" The AP believes its reporting is protected by Florida's fair report privilege, which its legal team wrote "safeguards the ability of the press to report about legal and other official proceedings." In addition, the AP's legal team wrote that the article "cannot be reasonably read as conveying anything defamatory" about Young or his company, Nemex Enterprises. Navy Veteran Who Proved Cnn Defamed Him Sues Associated Press, Says He Was Falsely Painted As 'Smuggler' Young's attorney, Daniel Lustig, said the motion to dismiss was expected, and he expects the Navy veteran to prevail. "AP's position is that words don't mean what they mean. That was CNN's defense. Zachary Young spent nearly three years fighting that fiction and after a court ruled in his favor and a jury affirmed it, the matter should have ended. But now he's back in the same courtroom, facing the same defense, advanced by the same lawyers, insisting once again that a plainly criminal accusation doesn't actually accuse him of a crime," Lustig told Fox News Digital. "If this feels familiar, it's because it is. The only thing that's changed is the logo on the letterhead. AP called Mr. Young a human smuggler, broadcast it around the world, and now claim they meant it in a nice way. When he asked them to correct a single word, they refused," he continued. Cnn Defamation Juror Would Have Awarded Navy Veteran 'Up To $100 Million' Before Settlement Was Reached The AP has referred to the lawsuit as "frivolous" in past statements to the press. The motion was filed with the 14th Judicial Circuit Court in Bay County, Florida, the same court where Young prevailed against CNN. Young is seeking at least $18 million in economic loss, $50-75 million in reputational harm, $5-10 million in emotional distress and $300-350 million in punitive damages, according to a Notice of article source: Associated Press moves to dismiss defamation claim from veteran who defeated CNN in court
Forbes
20-05-2025
- Politics
- Forbes
Iowa Adopts The Uniform Public Expression Protection Act (UPEPA)
Front shot of Iowa Capitol in Des Moines. getty On May 19, 2025, the Iowa governor, Kim Richards, signed into law the Uniform Public Expression Protection Act (UPEPA) which makes Iowa the 12th state to have done so. This gives Iowa an A-grade Anti-SLAPP law to protect the free speech and related rights of Iowa citizens. The full Iowa UPEPA may be found here. Reviewing the Iowa UPEPA, it seems to be a pretty clean enactment ― I could not easily spot any significant non-uniform provisions in my first cursory review of the new statute. Prior to the adoption of the UPEPA, Iowa had no Anti-SLAPP law at all. This meant that Iowa citizens were exposed to having meritless lawsuits brought against them to silence their free speech rights, or retaliate against them for having done so, through the use of the litigation process itself. The UPEPA allows for an early dismissal of such cases and for an award of attorney's fees to make the defendant in such a case whole. Passage of uniform acts like the UPEPA do not happen on their own. To the contrary, a great deal of work is put into the legislative process by a number of folks, including the local state sponsors of the bill, the floor managers, various proponents of the legislation who submit written materials and testify before committees, and of course the legislators themselves. Behind the scenes, the enactment of the UPEPA in all the states so far has largely been because of the impetus provided by Kaitlin Wolff, the Legislative Program Director of the Uniform Law Commission, who has done yeoman's work in getting the UPEPA passed, including testifying herself at hearings on the UPEPA, rounding up witnesses to testify before the various judicial committees, and putting the spurs to the local ULC legislative liaison to push the UPEPA to their legislators. We on the UPEPA drafting committee may have given birth to this Anti-SLAPP law which is now bringing greater protections for free speech to literally millions, but it was Kaitlin Wolff who nurtured it to enactment and is overdue for recognition and kudos. The UPEPA has proven to be a wonderful out-of-the-box tool for states like Iowa that did not have previously have any Anti-SLAPP legislation at all, as well as for states which had defective Anti-SLAPP laws which required a full replacement instead of merely an overhaul. As I recently wrote in my article, Free Speech Rights: Anti-SLAPP Laws Of The U.S. Ranked By Quality (March 26, 2025), less than one-third of the states have no Anti-SLAPP law at all and slightly less than one-fifth of the states have very poor Anti-SLAPP laws. But these numbers are now slowly decreasing due to the enactment of the UPEPA. It is entirely possible that before this decade ends, the states with no or poor Anti-SLAPP laws will be reduced to only a handful. And that is a very good thing for free speech rights of all Americans.
Forbes
09-05-2025
- Politics
- Forbes
Another Victory For Free Speech: Montana Adopts Uniform Public Expression Protection Act
The Montana legislature has given its citizens a quality Anti-SLAPP law in the form of the Uniform ... More Public Expression Protection Act. The Treasure State of Montana has adopted the Uniform Public Expression Protection Act ("UPEPA"). The UPEPA passed the Montana House by a vote of 96-1 and in the Senate by a vote of 50-0. This follows the similar unanimous passage of the UPEPA in Ohio and Idaho and speaks volumes for the quality of the UPEPA as an out-of-the-box Anti-SLAPP law for states not having an Anti-SLAPP law or looking to replace a bad one. Peter Russo of the Institute for Free Speech put out a statement that: "This achievement represents years of advocacy and marks a dramatic improvement in Montana's free speech landscape. As you may recall from our previous report, Montana was among the worst states for SLAPP vulnerabilities. The 2015 case against the Billings Gazette - sued merely for filing a public records request about potential mishandling of public funds - demonstrated precisely why these protections were so urgently needed. "We extend our deepest gratitude to State Representatives Tom Millett (R-Marion) and James Reavis (D-Billings) for their bipartisan sponsorship, Governor Gianforte for signing it into law, and all our coalition partners - the ULC, press organizations, civil liberties groups, and grassroots activists - who worked tirelessly across party lines to make this possible. "With this legislation, Montana has transformed from having the weakest anti-SLAPP protections in the nation to joining the ranks of the strongest defenders of free speech in America." Montana's adoption of the UPEPA now makes 11 states which have adopted the UPEPA. This means that the UPEPA now constitutes just over one-third of all the Anti-SLAPP laws in the United States. Of the remainder, 28 states and territories (including the District of Columbia and Guam) have their own organic Anti-SLAPP laws, and 15 states and territories have no Anti-SLAPP laws at all. This legislative term, the UPEPA has been introduced in the legislatures of 10 other states and apparently is close to passage in a couple of those states. Fingers crossed. I have not seen the final bill signed into law in Montana, but I have been told that the UPEPA was passed with only minor amendments. We'll have to wait to see what those are. As I have previously mentioned, some minor variations by the states which have adopted the UPEPA are actually welcomed, as those states can then act as test tubes to see what works or doesn't. These experiences will be important at some distant time when a revised UPEPA will be considered. For those not familiar with the UPEPA, it is an Anti-SLAPP law that protects freedom of expression and other constitutional rights by essentially moving summary judgment from its normal habitat at the end of litigation to the start of the litigation so that meritless cases are disposed at the outset. While some other states have Anti-SLAPP laws that are as effective in doing this (and, in fact, the UPEPA was modeled after some of those laws, predominantly California and Texas), the UPEPA quite uniquely offers the additional benefit of uniformity of interpretation. This latter benefit allows the courts of the UPEPA states to rely on the each other's court decisions as needed. As 2025 has been a good year for UPEPA adoptions, we'll hope that the good fortune continues.
