A SLAPP — or a Strategic Lawsuit Against Public Participation — is, broadly defined, a lawsuit against people or groups who speak out about a matter of public concern. SLAPPs are primarily aimed at stifling criticism or other negative speech by burdening the speaker with the significant costs associated with defending against the lawsuit. In response to a growing number of SLAPPs and the lack of a process for the judiciary to quickly dispose of SLAPPs, a number of states have adopted so-called anti-SLAPP laws or procedures that, depending on the state, offer the targets of SLAPPs various protections, such as a means to secure an early dismissal of the claim or awards of attorneys’ fees and costs or other monetary relief.
Until 2015, Washington was among the states that had a strong anti-SLAPP statute — RCW 4.24.525 — that provided for an early special motion to strike a SLAPP and significant monetary remedies, including recovery of attorneys’ fees and costs. But in May 2015, the Washington Supreme Court in the case of Davis v. Cox held that the relevant portion of Washington’s anti-SLAPP statute violated the right to a trial by jury by requiring the trial court, in deciding a special motion to strike, to resolve factual issues without a trial.
More than six years later, effective July 25, 2021, Washington again has an anti-SLAPP statute with the adoption of the Uniform Public Expression Protection Act (“UPEPA”). The UPEPA retains many of the elements from Washington’s prior anti-SLAPP statute, albeit often in modified form. Following is a brief breakdown of the UPEPA based on the statutory language, though it remains to be seen how the act will be applied in practice.
UPEPA Key Provisions
Section 2 – Scope
- Applies to claims based on a person’s:
- communication in a legislative, executive, judicial, administrative, or other governmental proceeding;
- communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding;
- exercise 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.
- Does not apply (with exceptions to these exceptions) to certain types or targets of claims, including a claim:
- asserted against a person primarily engaged in the business of selling or leasing goods or services if the cause of action arises out of a communication related to the person’s sale or lease of the goods or services;
- based on a common law fraud claim;
- brought under the Washington Consumer Protection Act, RCW 19.86.
Section 3 – Special Motion for Expedited Relief
- Special Motion – Like the prior anti-SLAPP statute, the UPEPA allows a party to file a “special” motion for expedited relief to dismiss a claim to which the act applies (i.e., a claim that comes within the scope described above in Section 2).
- Timing – Generally, the special motion to dismiss must be filed within 60 days after the moving party is served with a pleading that asserts a cause of action to which the UPEPA applies.
- Pre-Filing Notice – Unlike the prior anti-SLAPP statute, the UPEPA requires the moving party to provide written notice to the responding party of its intent to file a motion under the act at least 14 days before filing the motion. Notably, however, failure to provide this pre-filing notice does not preclude the moving party from filing the motion but it does preclude the party from recovering its attorneys’ fees if it prevails on the motion.
Section 7 – Dismissal of Cause of Action in Whole or In Part
- With respect to the special motion, the UPEPA provides that the court shall dismiss a claim subject to the act with prejudice if either:
- the responding party fails to establish a prima facie case as to each essential element of the cause of action; or
- the moving party establishes either that (a) the responding party failed to state a claim upon which relief can be granted or (b) there are no genuine issues of material fact and it is entitled to judgment as a matter of law.
- Unlike the prior anti-SLAPP statute, the UPEPA explicitly addresses a voluntary dismissal of the claim at issue and such a dismissal’s impact on a motion under the act. Specifically:
- if a claim is voluntarily dismissed without prejudice (i.e., the claim can still be re-filed), that dismissal does not impact the moving party’s right to a ruling on a motion under the UPEPA or to seek costs and attorneys’ fees under the act;
- if a claim is voluntarily dismissed with prejudice (i.e., the claim cannot be re-filed), that dismissal establishes that the moving party prevailed on a motion under the UPEPA for purposes of the section providing for recovery of costs and attorneys’ fees.
Section 6 – Proof
- The UPEPA limits the materials the court can consider in deciding a motion to dismiss under the act to the pleadings, the motion briefs, and any evidence that could be considered in ruling on a motion for summary judgment. The UPEPA departs from the prior anti-SLAPP statute which, problematically, allowed the court to consider “supporting and opposing affidavits stating the facts upon which the liability or defense is based” (i.e., potentially disputed facts).
Section 5 – Hearing
- The UPEPA generally requires a motion under the act to be heard no later than 60 days after the motion is filed (in contrast to the 30-day deadline in the prior anti-SLAPP statute).
Section 8 – Ruling
- The UPEPA requires the court to rule on the motion within 60 days after the hearing, departing significantly from the prior anti-SLAPP statute which required a decision within 7 days.
Section 10 – Costs, Attorneys’ fees, and Expenses
- Similar to the prior anti-SLAPP statute, the UPEPA provides that the court “shall” award court costs, reasonable attorneys’ fees, and reasonable litigation expenses related to a motion under the act in the following circumstances:
- to the moving party if it prevails on the motion; or
- to the responding party if it prevails on the motion and the court finds that the motion was not substantially justified or was filed solely with intent to delay the proceeding.
- The UPEPA does away with the additional penalty ($10,000) that was required in the prior anti-SLAPP statute.
Section 4 – Stay
- The UPEPA provides for a broad stay of all proceedings between the parties — including discovery — through decision on a motion under the act and until expiration of the time for the moving party to appeal the decision. Additionally, unlike the prior anti-SLAPP statute, the UPEPA explicitly extends the stay until the conclusion of any appeal from the decision on a motion under the act.
Section 9 – Appeal
- Like the prior anti-SLAPP statute, the UPEPA provides the moving party with a right to appeal an order denying a motion under the act. But unlike the prior statute, the UPEPA requires an appeal to be filed within 21 days of the order (which differs from the general 30 day deadline for notices of appeal to be filed).
Section 11 – Construction
- The UPEPA specifies that it must be “broadly construed and applied to protect the exercise of the right of freedom of speech and of the press, the right to assemble and petition, and the right of association, guaranteed by the United States Constitution or the Washington state Constitution.”
Section 13 – Transitional Provision
- The UPEPA applies to a civil action filed, or a claim asserted in a civil action, on or after the act’s effective date (July 25, 2021).