Monday, July 19, 2004

New Anti-SLAPP legislation

So buried in this year's amendments to the Condo and Homeowner's Association statutes is a whole new anti-SLAPP provision that has intro language about homeowners association, but seems to be applicable to any "lot owner."
It expands the existing anti-SLAPP statute (that only applies to gov't entities) to prohibit suits by pretty much any government or business entity raised "solely" because of someone's statements in a land use or related matter.  It provides for expedited hearings and treble damages.  
Two big problems with the statute.  First, it probits suits based "solely" on the defendant parcel owner's presentation before a government entity.  Essentially, this requires the person sued to demonstrate an intent or mental aspect to the suit that may be impossible to prove.  How would you show that there wasn't any other possible reason for the suit?  Which leads to the second problem - it provides for mandatory awards of attorney's fees to the prevailing party - so if you sue to dismiss under the statute and fail, you're liable for attorney's fees. 
Given the risk, and the availability of fees under 57.105, it seems to mee that this might be useful just to expedite a motion to dismiss, but only if you think you've got a good smoking gun on intent - demand letters or statements on the record from the other side.   Without some smoking gun, the best use of the statute is for citing the public policy statements in it in a closer case to give the judge an additional reason to dismiss. 
Here's the text in MS Word format 

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