NEW RULES - SLAPP

On November 10, Governor Andrew M. Cuomo signed legislation amending the Civil Rights Law provisions which are aimed to deter abusive "strategic lawsuits against public participation," known as SLAPPs, viz., frivolous litigation brought by affluent plaintiffs who have the ability to spend large sums of money by using expensive and time-consuming litigation to obstruct those exercising their right to free speech.

"SUMMARY OF PROVISIONS OF BILL: 

Section 1 of the bill would amend section 70-a of the Civil Rights Laws to provide that costs and attorney's fees "shall be recovered upon a demonstration that a SLAPP suit was commenced or continued without a substantial basis in fact or law and could not be supported by a substantial argument for the extension, modification, or reversal of existing law."

Section 2 of the bill would amend section 76-a of the Civil Rights Law to define an "action involving public petition and participation" to include a claim related to: 

i. Any communication in a place open to the public or a public forum in connection with an issue of public interest; or ii. Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition. The bill also specifies that "public interest" should be broadly construed.

Section 3 of the bill contains a stay of discovery and pending hearings or motions once a motion to dismiss a SLAPP action has been made pursu- ant to CPLR 3211 (a)(7). 

Section 4 specifies that the act shall take effect immediately.

JUSTIFICATION:

Section 76-a of the Civil Rights Law was originally enacted by the Legislature to provide "the utmost protection for the free exercise or speech, petition, and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern." L. 1992 Ch. 767. However, as drafted, and as narrowly interpreted by the courts, the application of Section 76-a has failed to accomplish that objective. In practice, the current statute has been strictly limited to cases initiated by persons or business entities that are embroiled in controversies over a public application or permit, usually in a real estate development situation. By revising the definition of an "action involving public petition and participation," this amendment to Section 76-a will better advance the purposes that the Legislature originally identified in enacting New York's anti-SLAPP law. This is done by broadly widening the ambit of the law to include matters of "public interest", which is to be broadly construed, e.g. anything other than a "purely private matter". 

Additionally, the principal remedy currently provided to victims of SLAPP suits in New York is almost never actually imposed. The courts have failed to use their discretionary power to award costs and attorney's fees to a defendant found to have been victimized by actions intended only to chill free speech. By an award of costs and fees, the Legislature had originally intended to address "threat of personal damages and litigation costs . . . as a means of harassing, intimidating, or punishing individuals, unincorporated associations, not-for-pro- fit corporations and others who have involved themselves in public affairs." L. 1992 Ch. 767. This amendment to Section 70-A of the Civil Rights Law makes clear that a court "shall" impose an award of costs and fees, but only if the court fords that the case has been initiated or pursued in bad faith. Together, the two amendments will protect citizens by encouraging only meritorious litigation."