Recent Developments in the Application of anti-slapp Statutes in Sports and Entertainment Disputes

Transcription

1 Recent Developments in the Application of anti-slapp Statutes in Sports and Entertainment Disputes Felix Shafir & Mark A. Kressel Horvitz & Levy LLP Burbank, California Tel.:

2 California s anti-slapp Statute

3 Definition of a SLAPP Ø A SLAPP is a strategic lawsuit against public participation. Ø SLAPPs are lawsuits or claims brought primarily to chill the valid exercise of the constitutional rights of free speech and petition for redress of grievances.

4 Introduction to California s anti-slapp law Ø Summary judgment motions in reverse. Ø The moving party must show the lawsuit is a SLAPP. Ø The opposing party must then show he or she has a probability of prevailing on the challenged claims. Ø Parties have a right to immediately appeal. Ø The prevailing defendant is entitled to its reasonable fees.

5 The anti-slapp motion as a tool in the litigation arsenal Ø Between fiscal years 2010 and 2014, parties filed a total of 2,051 anti-slapp motions in the trial court or roughly 410 anti-slapp motions per year on average. Ø From fiscal years 2010 to 2014, appellate courts decided between 105 and 123 appeals per year from orders granting or denying anti-slapp motions. Ø Trial courts are more likely to be reversed for denying an anti-slapp motion than for a variety of other rulings.

6 Prong One: Does the anti-slapp statute apply? Ø The anti-slapp statute applies to claims that are based on an act in furtherance of the defendant s right of petition or free speech. Ø The key question is whether the core injuryproducing conduct alleged by the challenged claim was a protected activity.

7 The four categories of protected activities Ø Ø Ø Ø any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest

8 Applicability to the entertainment and sports industries Whether the anti-slapp statute applies to activities connected to the entertainment and sports industries typically turns on whether the challenged claims are based on activities connected to an issue of public interest.

9 Issues of public interest Ø Any issue in which the public is interested. Ø Issues covered by the media. Ø Topic of interest to a sufficiently large enough number of people. Ø Person or entity in the public eye. Ø Combination of these.

10 The illegality exception If the defendant concedes, or the evidence conclusively establishes, that the activities were illegal as a matter of law.

11 Demand letters and cease-and-desist letters Ø Prelitigation communications including demand letters can constitute criminal extortion and therefore fall outside the anti-slapp law s protection. Ø The key distinction between whether these communications are protected or legal often turns on if the letter mainly threatens to file a civil lawsuit or instead threatens to report criminal activities to government authorities.

12 Anti-SLAPP law s applicability to the sport s industry Ø Defamation suit against web sites and blogs devoted to MMA fighting that published interviews claiming an MMA trainer was a thief because of what he charged for training camps. Ø Suits by former professional and college football players against video games (Madden NFL and NCAA Football) claiming use of avatars with their stats violates athletes right of publicity.

13 Prong Two: The Probability Test Ø If the defendant shows the anti-slapp statute applies, the burden shifts, requiring the plaintiff to show he or she has a probability of prevailing on his or her claims. Ø Courts are divided over who bears the burden to prove or defeat an affirmative defense.

14 California s anti-slapp Statute in Federal Courts

15 California s anti-slapp law generally applies in California federal courts Ø In California federal courts, defendants may file anti-slapp motions to challenge California state-law claims. Ø Does not apply to federal causes of action in the Ninth Circuit.

16 But not all of California s law applies in California federal courts Ø Discovery Ø Timing Ø Amendments

17 Anti-SLAPP Laws in Other States

18 The growing number of anti-slapp laws in other states Today, 29 states have anti-slapp laws: Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Vermont, and Washington. Washington, D.C., and Guam have anti-slapp statutes too.

19 New York s anti-slapp law generally New York s anti-slapp law allows defendants in actions involving public petition and participation to obtain dismissal or summary judgment unless the plaintiff can demonstrate that the cause of action has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law.

20 The different scope of the California and New York anti-slapp laws Ø New York s law applies only to an action involving public petition and participation. Ø This concept is limited to include only those actions brought by a public applicant or permittee and which are materially related to any efforts of the defendant to report on, comment on, rule on, challenge or oppose such application or permission. Ø A public applicant or permittee is narrowly defined to mean any person who has applied for or obtained a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body, or any person with an interest, connection, or affiliation with such person that is materially related to such application or permission.

21 New York and California law both extend beyond statements made to government bodies Ø The necessary challenge to a permit or an application may be made via the press or in public protests rather than directly to a government agency. Ø But New York law covers a far narrower range of statements than does California s anti-slapp law.

22 Other differences between New York s and California s anti-slapp laws Ø Interpretation: broad vs. narrow Ø Discovery stay Ø Attorney fees Ø Plaintiff s burden under prong two

23 The New York anti-slapp law s broader remedies Ø Recovery of both compensatory and punitive damages. Ø Imposes test resembling actual malice standard where the claim hinges on whether the statement is true or false.

24 Federal anti-slapp Legislation

25 The push for a federal anti-slapp law Ø A federal anti-slapp bill was introduced last year: H.R. 2304, known as the SPEAK FREE Act. This stands for: Securing Participation, Engagement, and Knowledge Freedom by Reducing Egregious Efforts Act. Ø The House of Representatives referred H.R to the House Judiciary Committee in May 2015, which in turn referred the bill to the Subcommittee on the Constitution and Civil Justice in June Ø The Subcommittee on the Constitution and Civil Justice recently held a hearing on H.R in June You can watch the hearing, and get access to the materials filed in support of and in opposition to the bill, at: examining-h-r-2304-speak-free-act/

26 What the federal anti-slapp bill does Ø Would allow a defendant to file a special motion to dismiss to dismiss a SLAPP suit in federal court. Ø Defines a SLAPP as any claim that arises from an oral or written statement or other expression by the defendant that was made in connection with an official proceeding or about a matter of public concern.

27 Removing SLAPPS to Federal Court Ø A new removal provision will allow a defendant to remove to federal court a civil action in a State court that raises a claim defined as a SLAPP by the federal bill. Ø The grounds for removal under this removal provision need not appear on the face of the complaint but may be shown in the petition for removal.

28 The federal anti-slapp bill s exemptions Ø Commercial speech Ø Public interest claim[s] Ø Exception to these exemptions for any claim against any person or entity based upon statements or conduct concerning the creation, dissemination, exhibition, advertisement, or other similar promotion of journalistic, consumer commentary, dramatic, literary, musical, political, or artistic works, including motion pictures, television programs, or articles published online or in a newspaper or magazine of general circulation.

29 H.R s similarities to California anti-slapp law Ø Immediate appeal Ø Attorney fees Ø Broad construction

30 How H.R currently differs from California law Ø California s law protects four broad categories of lawsuits. Ø Federal anti-slapp bill currently applies only to an oral or written statement or other expression by the defendant that was made in connection with an official proceeding or about a matter of public concern. Ø Federal anti-slapp bill expressly defines what constitutes a matter of public concern : 1. health or safety 2. environmental, economic, or community well-being 3. the government 4. a public official or figure 5. a good, product, or service in the marketplace

31 Ques%ons?