A very powerful weapon exists in Oregon law in the form of an anti-SLAPP motion. The anti-SLAPP motion can tilt the tables against the deep pocket company, and can put a quick end to certain frivolous claims. “SLAPP” stands for “strategic lawsuits against public participation.” The statute is designed to provide for easy dismissal of actions brought against someone, where the substance of the claim relates to the person (whether a human person or a legal entity) participating in a privileged manner in public issues. Thus the statute is directly concerned with protecting free speech rights in the context of public issues.
The Oregon anti-SLAPP law is found at ORS 31.150 through 31.155. In order to be subject to the statute, the civil action must arise out of:
“(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;
(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or
(d) 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.” (ORS 31.150(2)).
If such a claim is brought, then the defendant may bring a special motion to strike the claim, under the anti-SLAPP statutes. In order to support such a motion, the defendant has the burden of establishing that the claim arises out of a statement, document or conduct described above. (ORS 31.150(3)). If the defendant meets that burden, then the plaintiff can avoid dismissal by establishing that there is a probability that the plaintiff will prevail on the claim by putting forth substantial evidence supporting the plaintiff’s prima facie case. Id.
A defendant that prevails on a special motion to strike is entitled to its reasonable attorney fees and costs. (ORS 31.152(3)). The court is to enter a judgment of dismissal if the motion is granted, and a limited judgment denying the motion if the motion is denied. (ORS 31.150(1)) Discovery is stayed until the judgment is entered, although the court has discretion to allow specified discovery to proceed upon motion and for good cause. (ORS 31.152(2)) If the court finds that the special motion to strike was frivolous, or was filed solely to cause delay, the court shall award reasonable attorney fees and costs to the plaintiff. (ORS 31.152(2)).
The motion is considered a motion to dismiss under the rules of civil procedure (ORCP 21A), but is not subject to ORCP 21F which in other contexts requires mandatory joinder of certain motions. (ORS 31.150(1)). In deciding the motion, the court is to consider the pleadings and supporting and opposing affidavits. (ORS 31.150(4)). The special motion to strike must be filed within 60 days of service of the complaint, or in the court’s discretion, any later time. (ORS 31.152(1)).
There are many contexts in which the anti-SLAPP law can be used. While the potential situations are limitless, some examples of uses are listed below:
- In the Oregon case of Neumann v. Liles the law was used to strike a libel claim that alleged defamation arising out of a Google review of a business that was posted online. That case demonstrates that it can be used for defamation claims arising out of online reviews;
- It would be applicable to certain claims for slander of title;
- It could be used for a supervisor’s counterclaim for defamation in response to being sued for sexual discrimination;
- Various forms of defamation claims brought by former employers;
- Various forms of claims brought by developers to stifle opposition;
A defendant that is facing a claim arising out of public statements it made (or other public conduct it did) should consider whether a special motion to strike under Oregon’s anti-SLAPP law would be appropriate. It is a very powerful weapon.
This article is for general information only, and should not be interpreted or construed as legal advice. Beaverton attorney Brad Schrock is knowledgable about first amendment issues and special motions to strike under the anti-SLAPP law. You may contact Brad Schrock at (503) 626-3087.