I have taken a keen interest in Connecticut’s new SLAPP statute and written about it here. I was scheduled to moderate a panel discussion recently at the Raymond E. Baldwin Inn of Court recently but an out-of-state deposition kept me from doing it. So I need another dose of the special motion to dismiss. Connecticut business litigators and employment litigators should become familiar with the Connecticut SLAPP statute and advise clients who are considering bringing “close call” cases about the risk under the statute, because if the case is thin, and is based on the target defendant’s “protected activity” under the law, you will surely face a special motion to dismiss. If your client loses that motion the Court has to award attorney’s fees to the party that filed the motion.
Another Connecticut Superior Court Judge has weighed in on SLAPP since the last time I wrote about Connecticut’s SLAPP law. You can read the case here. Just as a refresher, the statute allows a party being sued to file a “special motion to dismiss” in response to a claim. The special motion to dismiss is supposed to be filed no later than 30 days after the complaint, cross claim or counterclaim is “returned” to court, which is the same as the filed date, although the judge can extend that time. Although the statute doesn’t specify, you probably need to file your motion for extension of time within the initial 30 days and establish “good cause” for the extension.
The special motion to dismiss is supposed to lead to an evidentiary hearing (which means the judge hears witnesses and views documentary evidence), though presumably the court can decide the matter on the pleadings and supporting documents. The party filing the motion has to show, by a preponderance of the evidence (a fact is more likely true than not), that it is being sued because of its protected activity under the statute. This protected activity includes the exercise of free speech rights on a matter of public concern, the right to petition the government (generally or that is likely to encourage legislative attention concerning a matter of public concern), or the right of association under the state or federal constitutions on a matter of “public concern.” The language is broad and mark my words will cause problems.
In this recent opinion authored by Judge John Farley, a very well-respected appellate attorney in his days of practice, the plaintiff sued some local Connecticut newspapers and a police officer for defamation of character (among other claims). The newspapers published statements about the plaintiff in articles covering an investigation into conduct that led to the plaintiff’s arrest and subsequent guilty plea to a single count of risk of injury. The plaintiff represented himself in the lawsuit, and fought a special motion to dismiss filed against him. To his credit, he successfully defended the newspaper defendants’ motion.
The newspaper defendants argued that their articles represented the exercise of their right to free speech on a matter of public concern, namely the investigation into the defendant’s conduct, his arrest and later guilty plea. Plaintiff first challenged the timeliness of the newspaper defendants’ motion because it was not filed on time. Judge Farley disagreed and decided the motions on their merits. Ultimately, after an exhaustive analysis of the underlying merits of the plaintiff’s claims, the court dismissed all of the claims against the police officer and most of the claims against the newspaper defendants finding that, for various reasons (including statute of limitations issues) the plaintiff would not prevail. However, three counts against the newspaper defendants survived, meaning the plaintiff gets to engage in discovery and the wonderful world of litigation.
We will see if either the newspaper defendants or the police officer file a motion for attorney’s fees – the statute allows a successful movant to recover its attorney’s fees in connection with the special motion to dismiss.
The special motion to dismiss under Connecticut’s SLAPP law will become a vehicle to challenge the merits of cases early on. I expect decisions to really start to flow from our superior courts in 2019, and I would bet a case heads to our appellate courts within the next 12-24 months.