Let’s start with a basic premise – even the greatest lawyer ever born (Clarence Darrow? Johnnie Cochran? This guy?) cannot prevent a lawsuit from being filed against you. When you contact your lawyer about a new policy, or a liability waiver, or some action you want to take or not take, you will ask them, “is this legal?” And of course, the answer will be complicated. But what they are really trying to do is a combination of two things: 1) Make the likelihood of a lawsuit against you as small as possible, and 2) Make winning any lawsuit that gets filed as easy, quick, and inexpensive as possible. Because here is the real truth: Anyone can file a lawsuit for anything at any time. There are a few exceptions to this, and the ramifications of doing so can be significant, but this is generally the truth. Your attorney usually does not have the power or ability to stop some wingnut from walking to the courthouse, writing some mean things about you, paying the filing fee, and starting a case.
Your attorney will advise you on actions to take that will make that lawsuit less likely. But this post is about how to make that lawsuit easier to get rid of.
When you get sued, the first thing you can usually do is file a motion to dismiss, sometimes called a demurrer. This motion is typically the fastest way to get rid of a lawsuit, and what is says is that the suit itself fails to state a claim on which relief can be granted. What that means is that even you take every single fact set out in the complaint as absolute undisputed gospel, the plaintiff (party who filed the case) still can’t win. Maybe they are in the wrong court. Perhaps they are alleging facts that aren’t illegal. Possibly they have sued the wrong party. Whatever it is, we shouldn’t waste any more of the court’s time with this case because it can’t possibly win. When your attorney advises you on how not to get sued, they are often thinking about this very motion. How can we make sure that if a plaintiff sues you, and alleges all the facts and actions you have taken, there still will not be a cause of action?
Because it is such a dramatic and final remedy, and because the bar is so high, motions to dismiss are rarely granted and usually easy to overcome. All the plaintiff must do is stir up even one small “genuine issue of material fact,” and the case will proceed. Despite you and your attorneys’ best efforts and intentions, you are going to go through litigation. You are going to discovery, and possibly depositions, and more costs and legal fees. You may need to notify your insurance carrier. It is a major pain, and you know you did nothing wrong!
However, for certain types of these nuisance lawsuits, there is a relatively new remedy, and an even better way to get rid of them than the motion to dismiss. It is called an anti-SLAPP motion.
A SLAPP is a “Strategic Lawsuit Against Public Participation.” In simplest terms, it is a lawsuit designed to somehow chill your first amendment right to free speech. As we know, the First Amendment provides: “Congress shall make no law abridging the freedom of speech.” So private parties are usually allowed to restrict or limit speech upon other private parties. For example, the First Amendment protects your right to call your local senator, representative, or judge a moron, but it does not prohibit your private employer from firing you for doing so. Similarly in the context of a lawsuit: while the government cannot arrest you for expressing a certain opinion, a private party may be able to sue you. And if you made the statements alleged, it may be a long and complicated effort to get rid of the lawsuit, even if you ultimately win.
Enter the anti-SLAPP motion. In Washington, DC the authority for it is found at DC Code Title 16, Chapter 55. The special motion to strike, or anti-SLAPP motion, is filed right at the outset of the case, and claims that the lawsuit is filed solely to chill otherwise permissible free expression. Did your community get hit with a defamation suit for filing a lien? That could be a SLAPP suit. Did an owner file suit over something contained in the condominium meeting minutes? That might be a SLAPP suit. Are you facing a claim for something that was contained in one of your recorded bylaw amendments? There could be an anti-SLAPP claim there too. In short, anyplace where a plaintiff tries to use the courts to stop or inhibit free expression (or profit from the exercise thereof) could be a great opportunity to utilize an anti-SLAPP motion.
Now, as with most new areas of law, the anti-SLAPP statutes and the cases interpreting them vary wildly by jurisdiction. In California, where I went to law school (go Toreros!), the anti-SLAPP statute has existed for nearly thirty years, and there are myriad decisions interpreting it. In DC, there is a growing body of law on the statute (followed by this excellent blog); whereas in Maryland there are only a small handful of cases that have even addressed it (and the statute seems to be worded a bit weaker than most). But the common thread is clear – these statutes are being enacted and utilized to make sure that private citizens are not having their free speech rights infringed by other private parties utilizing the court system. And there is a very clear correlation between these laws and the (often challenged) actions of community associations.
If your community association (or you personally) find yourselves on the wrong end of a lawsuit, and the actions you allegedly took were speech, communication, or expression, talk to your lawyer about filing an anti-SLAPP motion right away.
One last benefit: many anti-SLAPP statutes have prevailing party attorneys’ fee provisions. So if you win, you may not only save yourself time, but money as well.