Minchella Law Blog

What Defenses Can You Raise in an Anti-SLAPP Motion?

You can raise any defense to a lawsuit against you when you file a special motion to dismiss, which Connecticut calls a “special motion to dismiss.”  The moving party can argue that the plaintiff will not show probable cause that she will win her lawsuit because of a number of “special defenses” the moving party has, including the statute of limitations, laches, abandonment, accord and satisfaction, collateral estoppel, res judicata, fraud and immunity; basically any special defense available under Connecticut Rules of Court Section 10-50.  And, when sued for defamation, truth would be one of the defenses most commonly seen in a special motion to dismiss.

What is a SLAPP lawsuit? It’s when someone or some business sues you just to intimidate you.  I’ve been training my mind to consider an anti-SLAPP special motion to dismiss at the outset in cases we are defending. If you aren’t familiar with Connecticut’s anti-SLAPP statute, please read here, here, and here for some background.

Primer on Connecticut’s anti-SLAPP Law

Because Connecticut’s statute is only four years old now, the law is still developing. Other states, especially California, have a ton of SLAPP cases because California’s statute has been around so much longer.  California has a lot of SLAPP cases because anti-SLAPP motions come up often in defamation cases. California is home to so many celebrity figures who don’t like to be defamed.  In California SLAPP motions are “motions to strike” whereas in Connecticut we call them  “special motion to dismiss”)

Connecticut’s statute requires the Judge, in deciding a special motion to dismiss, to consider all defenses the party has to the other side’s claims.  An example might be the defense of truth to a defamation claim.

A Recent Connecticut Appellate Court Case

The Connecticut Appellate Court issued its first reported appellate decision on the mechanics of Connecticut’s anti-SLAPP statute in May.   It  ruled that a party filing a special motion to dismiss can raise res judicata and collateral estoppel as defenses.  Not surprising because a party must plead those two “defenses” as “special” defenses under Connecticut’s Practice Book or court rules.

The case involved an attorney suing (can you believe it!)  the Hartford Courant and its reporter for articles published about disciplinary proceedings against the attorney. The attorney had allegedly impersonated a police officer.  Ultimately the attorney won the disciplinary proceedings and sued the newspaper. But here, the lawyer had brought and lost two other lawsuits involving the same claims.  So, the Courant filed a special motion to dismiss at least under the law of res judicata and collateral estoppel and won.

The appellate court agreed with the lower court. It held that because the issues in the lawsuit against the Courant were substantially identical to the issues litigated in the other two cases, the Courant couldn’t be sued again. And that’s why the Court granted the Courant’s special motion to dismiss under Connecticut General Statutes 52-196a.

The attorney made another claim that the appellate court rejected out of hand.  But I think this one will come up again.  He argued that the summary process under Connecticut’s anti-SLAPP statute violated his constitutional right to a jury trial.  Connecticut’s anti-SLAPP statute has an abbreviated procedure that can dispose of the case without a jury trial and the plaintiff didn’t like not getting to a jury.  The appellate court said sorry not sorry, you lose on that argument also.

Be on the Lookout to File a Special Motion to Dismiss

The takeaway is to hire an attorney if someone sues you because of what you said or wrote on an issue of public concern (very broad definition), or because you sought the government assistance (petitioned the government), or even because you belong to a specific political party.  The attorney can determine what defenses you might have. And a special motion to dismiss stops the case in its tracks. If you win your motion, the other side has to pay your reasonable attorney’s fees.  Read here for some information on when the opposing party has to pay your attorney’s fees.  It’s worth it to be vindicated and make the other side pay!

Picture of Anthony R. Minchella

Anthony R. Minchella

Tony represents Fortune 50 financial services companies, retail giants, and small and large specialty products companies in employment litigation, trade secret and non-competition litigation, and unfair trade practice issues. When acting as local counsel, Tony, an adjunct professor of law on Connecticut Civil Procedure at Quinnipiac Law School, helps lead counsel navigate the nuances of Connecticut state and federal court practice. Tony graduated magna cum laude from Quinnipiac University School of Law. He passed the New Jersey, New York and Connecticut bar exams and then moved on to careers with large and small firms which led to his boutique litigation practice.

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