Last year Connecticut’s Governor signed into law a statute that now about 33 states have. Click here for an overview of the states’ laws. Click here for Connecticut's law's legislative history. SLAPP is a law that allows defendants in lawsuits to move to dismiss a lawsuit (or counterclaim) against them that is simply retaliation against them for filing their own lawsuit, or for engaging in other activity that the SLAPP statute protects. And it’s a fee-shifting statute that gives wrongfully sued parties another tool in the arsenal to fight back against lawsuits that may lack a real basis in the law. You see for the most part Connecticut follows the “American Rule” which means a party pays its own attorney’s fees in litigation.
What does “SLAPP” or “anti-SLAPP” mean? SLAPP is the acronym for Strategic Lawsuit against Public Participation. Lawsuits of this nature are strategically used to silence defendants for exercising their right of free speech, right to petition the government or right of association. Petitioning the government can be as simple as filing (the “petitioning”) a lawsuit in court (the “government”) on your own. With this law, a Connecticut defendant can file a “special” motion to dismiss a complaint (or counterclaim) if they feel their 1st Amendment rights, right to petition the government, or right to association are being infringed by the lawsuit (or counterclaim) filed against them.
For example, you have the right to file a lawsuit if you feel you have been legally wronged. When you file a complaint, it’s possible that the person you are suing will sue you back. If the basis of their countersuit against you is rested solely on the fact that you sued them, meaning they are retaliating against you for the simple fact you sued them, this law allows you to file a special motion to dismiss their claim. One can usually tell when a lawsuit or counterclaim is retaliatory - because it usually doesn’t pass the giggle test. It doesn’t make sense. Or it’s frivolous or lacks “probable cause.” This new Connecticut statute allows those parties to try to get rid of the lawsuit quickly because it really was just meant to “SLAPP” you in the face.
Only one Connecticut case has tested the new law. In Cronin v. Pelletier (click here to review the court docket), Judge Samuel Sferrazza dismissed a lawsuit under Connecticut’s SLAPP statute. You can read the court's decision here. The plaintiff had sued the defendant for libel (which is written defamation, a written false statement that damages or harms someone) for statements the defendant made in a letter he wrote opposing the plaintiff’s appointment to Eastern Connecticut State University’s board of directors. The defendant moved to dismiss the lawsuit under Connecticut’s SLAPP law, and Judge Sferrazza ruled that the plaintiff failed to establish probable cause that he would prevail on the libel claim. The plaintiff’s lawsuit was really meant to SLAPP the defendant for writing the letter, which the plaintiff had the right to do under the First Amendment.
The takeaway is to make sure your lawsuits are really intended to vindicate your rights, and not to get back at someone for suing you, or writing a letter for example. Small businesses, employees and executives may find the SLAPP statute useful. Let’s say when you worked for a company you signed a confidentiality agreement or non-solicitation or non-competition agreement. And let’s say your former employer is a bully, and even though you haven’t done anything to violate the agreement, your former employer sues you claiming you did. All you’ve done is try to earn a living, in a different area of business, basically exercising your “right to association” which is protected activity under the Connecticut SLAPP law. If the employer has no evidence you have violated the agreement, your attorney should consider filing a special motion to dismiss. It will quickly bring the dispute to a head and you may recover your own attorney’s fees if you win. We think the SLAPP law will be used in restrictive covenant litigation that lacks a factual basis when employers sue former employees without any evidence the former employee has violated any agreement, or to simply “shut up” the former employee.