Yesterday the Appeals Court issued a decision that was probably correct, but disappointing.  The gist of it is that we have a law in Mass that if you get sued for “public participation,” you can file a motion to dismiss and make the big bully pay your legal fees.  The idea is that people with deep pockets (like Wal*Mart) shouldn’t be able to use the legal system to intimidate their political opponents (like local people who oppose building a new Wal*Mart).  These suits are called SLAPP suits, for Strategic Lawsuit Against Public Participation.  The idea of the SLAPP suit isn’t necessarily to win–it’s to distract your detractors, divert their resources from activism to litigation, and make them shut up.

What happened in Connolly v. Sullivan is almost an archetypal case of a SLAPP suit.  A developer buys two lots and wants to build condos.  The defendant and the neighbors get together to plan how they will stop the development.  They make public statements that they are doing this.  The developer sues for $5 million and a court order to shut them up.  This happened in November 2008.  In December, the defendant filed an anti-SLAPP motion to dismiss and recover their fees, and in January, before the court ruled, the plaintiff said “forget about it, I’m dropping the suit,” and did so.

A year later, they are still arguing about who pays the defendant’s legal fees.  The problem is that the statute says you get fees only if the court grants your anti-SLAPP motion.  And the court didn’t have a chance to rule on the anti-SLAPP motion before the plaintiff withdrew their suit.    To quote from the decision:

In this case, the judge did not “grant” the special motion to dismiss. Instead, she properly ruled the motion moot in light of the voluntary dismissal, and thus costs and fees were not permitted under the anti-SLAPP statute.

Despite the anti-SLAPP statute’s clear language, the defendant invites us to graft language onto it in order to permit recovery of costs and fees in these circumstances. We decline to do so because “we do not ‘read into the statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose. [internal citations omitted]

Alright, legislature: ball’s in your court.  Put an end to this new strategy of abusive litigation by amending the anti-SLAPP statute to include this scenario.  By filing and withdrawing, this SLAPP plaintiff is able to do exactly what the legislature sought to deter–distract some activists and divert their resources from public participation to litigation.  As soon as they file their notice of voluntary dismissal, the suit is dismissed without prejudice (they can re-sue later), and their defendants are stuck with the costs.

There’s an easy solution: amend the statute to say that if a notice of voluntary dismissal comes after an anti-SLAPP “special motion to dismiss,” the court must go on to determine whether the suit was a SLAPP suit.  If so, award fees and costs to the defense, and enter an order dismissing the suit with prejudice (meaning the plaintiff can’t re-sue later).

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Posted by AndyCowan on February 24th, 2010 :: Filed under In the News, Law for the Layman
Tags :: old fashioned beatdown, SLAPP, Tactics and Trial Strategies, the wealthy and their wealthy lawyers, things that are wrong
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