The Connecticut Anti-SLAPP Statute: A Tool To Protect Constitutional Rights And Freedoms Of Defendants

Published date05 November 2020
Subject MatterGovernment, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Terrorism, Homeland Security & Defence, Trials & Appeals & Compensation
Law FirmMorrison Mahoney LLP
AuthorMs Michelle Napoli

Connecticut's anti-SLAPP ("Strategic Lawsuit Against Public Participation") statute-Conn. Gen. Stat. ' 52- 196a, effective January 1, 2018-was enacted to protect parties from frivolous lawsuits aimed at curtailing the exercise of certain federal and state constitutional protected rights. Connecticut joined a number of other states in enacting anti-SLAPP litigation to prevent private parties from bringing meritless lawsuits aimed at deterring individuals from the exercise of free speech, free association and freedom to petition government in areas of public concern whereby litigation is designed to burden the defendant and discourage the exercise of these constitutional freedoms. Thus, anti-SLAPP statutes are created and utilized to "enable early disposition without having to incur protracted and costly litigation." Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728 (2003). The "quintessential" SLAPPs are "generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights to punish them from doing so." Duracraft Corp. v. Holmes Prod. Corp., 691 N.E.2d 935, 940 (Mass.1998) (quoting Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816-17 (Cal.App.2d 1994)).

In Connecticut, the anti-SLAPP statute is designed to protect parties from meritless lawsuits seeking to subject a defendant to litigation arising as a result of defendant's exercise of the right to free speech, the right of association, and the right to petition the government on a matter of public concerns. Matters of public concern include, "issue[s] related to (A) health or safety, (B) environmental, economic, or community well-being, (C) the government, zoning and other regulatory matters, (D) a public official or public figure, or (E) an audiovisual work." Conn. Gen. Stat. ' 52-196a.

Importantly, the statute provides a procedure mechanism for the filing of a motion to dismiss by a defendant requiring the court to conduct an expedited hearing and restraining discovery while the motion is pending. "The purpose of Connecticut's anti-SLAPP statute is to protect parties from meritless lawsuits designed to chill free speech, among other rights." Pacheco Quevedo v. Hearst Corp., No. FSTCV195021689S, 2019 WL 7900036, *1 (Conn. Super. Ct. Dec. 19, 2019). Thus, the anti-SLAPP statute can be an effective tool when utilized properly to dismiss frivolous lawsuits seeking tort remedies from a defendant whose actions represent the exercise of freedoms protected by the state and federal constitution.

Importantly, however, the statute provides express exceptions for claims which are outside the scope of the anti-SLAPP statute. While claims such as emotional distress, libel, and defamation are included within the purview of this statute, the special motion to dismiss is not applicable to common law claims asserting losses from bodily injury or wrongful death. The statute specifically states:

[T]his section shall not: (1) Apply to an enforcement action . . . brought in the name of the state or a political subdivision of the state by the Attorney General; (2) affect or limit the authority of a court to award sanctions, costs, attorney's fees or any other relief available . . ., court rule or other authority; (3) affect, limit or preclude the right of a party filing a special motion to dismiss to any defense, remedy, immunity or privilege otherwise authorized by law; (4) affect the substantive law governing any asserted claim; (5) create a private right of action; or (6) apply to a common law or statutory claim for bodily injury or wrongful death, except the exclusion provided in this subdivision shall not apply to claims for (A) emotional distress unrelated to bodily injury or wrongful death or conjoined with a cause of action other than for bodily injury or wrongful death, or (B) defamation, libel or slander. The provisions of this subdivision shall not prohibit a plaintiff who brings a claim for bodily injury or wrongful death from filing a special motion to dismiss a counterclaim under the provisions of this section.

As this state and the nation find themselves in a period of increased exercise of its citizens in the right to free speech, free association and petitioning the government on matters of public concerns, there will undoubtedly be an increase in litigation which may avail defendants of the anti-SLAPP statute in Connecticut as a means of seeking an expedited dismissal of meritless lawsuits. Accordingly, claims representatives and defense counsel should familiarize themselves with Connecticut's anti-SLAPP statute and precedents from other jurisdictions in order to protect their clients against such claims.

This article explores the history of anti-SLAPP litigation and its enforcement in our courts.

THE HISTORY BEHIND CONNECTICUT ANTI-SLAAP STATUTE'S PREDECESSORS

Although Connecticut's anti-SLAPP statute is relatively new-having been in effect for a little over two years-other states, including California, have well-developed precedents on this claims and should be consulted for guidance.

California was the first state to enact an anti-SLAPP statute and many courts refer to the California statute and case law when ruling on motions to dismiss. See Jarrow Formulas, 31 Cal. 4th at 728 (noting that most of the decisions applying anti-SLAPP statutes are in California courts). In fact, in creating their own anti-SLAPP Statutes, most states, including Connecticut, have modeled their statutory language from California's statute. See Graves v. Chronicle Printing Co., 67 Conn. L. Rptr. 442, 2018 WL 6264070, *5 (Conn. 2018); see also Tennenbaum v. Ariz. City Sanitary Dist., 799 F. Supp. 2d 1083, 1088 (D. Ariz. 2011) (Arizona); Boley v. Atlantic Monthly Grp., 950 F. Supp. 2d 249, 255 (D.D.C. 2013) (District of Columbia); Buckley v. DIRECTV, Inc., 276 F. Supp. 2d 1271, 1274 (N.D. Ga. 2003) (Georgia); Macris v. Richardson, 2010 Guam 6, 2010 WL 1872862 *4 (Guam 2010) (Guam); Hytel Grp., Inc. v. Butler, 405 Ill. App. 3d 113, 122 (2d Dist. 2010) (Illinois); Brandom v. Coupled Prod., LLC., 975 N.E.2d 382, 386 (Ind. Ct. App. 2012) (Indiana); Thomas v. City of Monroe La., 833 So. 2d 1282, 1286 (La. Ct. App. 2d Cir. 2002) (Louisiana); Bradbury v. City of Eastport, 72 A.3d 512, 517 (Me. 2013) (Maine); Nev. Rev. Stat. ' 41.665(2) ("[T]he plaintiff must meet the same burden of proof that a plaintiff has been required to meet pursuant to California's [anti-SLAPP] law as of July 8, 2015."); Pagre v. Parsons, 249 Or. App. 445, 461 (2012) (Oregon); Pennsbury Village Assocs., LLC v. McIntrye, 608 Pa. 309, 320 (2011) (Pennsylvania); Serafine v. Blunt, 466 S.W.3d 352, 386 (Tex. App. Austin 2015) (Texas); Felis v. Downs Rachlin Martin PLLC, 2015 VT 129, 133 A.3d 836, 848 (Vt. 2015) (Vermont).

PROCEDURAL REQUIREMENTS IN CONNECTICUT

There are several procedural requirements which must be followed if a defendant wants to avail themselves of the remedies afforded under the anti-SLAPP statute. These procedural requirements include a time limitation on the filing of the motion to dismiss, restriction on amendments to the complaint, strict requirements directed to the court for conducting a hearing on the motion to dismiss, a limitation on the evidence to be considered at the hearing including defenses which may be raised by the defendant, a strict limitation on discovery which may be conducted, and a requirement that the court rule on the motion as soon as practicable. Perhaps, of equal importance is that the statute permits the successful party to recover costs and reasonable attorney's fees as a result of prosecuting the motion to dismiss.

1. Time Limitations

The Connecticut statute holds that a party filing a special motion to dismiss must do so within thirty days of the return of the complaint or filing a counterclaim. Conn. Gen. Stat. ' 52-196a(c). Despite this express limitation, the court may exercise its own discretion in considering motions filed beyond the 30 day time period. Conn. Gen. Stat. ' 52-196a(c) ("The court, upon a showing of good cause by a party seeking to file a special motion to dismiss, may extend the time to file a special motion to dismiss."). Similarly, in other jurisdictions courts have permitted the filing of anti-SLAPP motions to dismiss after the express statutory time period expired. See Karnazes v. Ares, 244 Cal. App. 4th 344 (2d Dist. 2016); Trapp v. Naiman, 218 Cal. App. 4th 113 (4th Dist. 2013), review denied, (Oct. 2, 2013); Chitsazzadeh v. Kramer & Kaslow, 199 Cal. App. 4th 676 (2d Dist. 2011); South Sutter, LLC v. LJ Sutter Partners, L.P., 193 Cal. App. 4th 634 (3d Dist. 2011); Platypus Wear, Inc. v. Goldberg, 166 Cal. App. 4th 772 (4th Dist. 2008), review denied, (Dec. 10, 2008) (holding that it was an abuse of discretion for the trial court to require the lawyer to explain why he did not apply earlier to file an anti-SLAPP motion); lsen v. Harbison, 134 Cal. App. 4th 278 (3d Dist. 2005) (holding that the plaintiff is not required to show the delay caused prejudice). Such discretion in considering a late filed motion may be exercised even without filing an application. Chitasazzadeh, 199 Cal. App. 4th at 676.

Accordingly, courts tend to be liberal in considering a motion to dismiss which was not filed within the strict time period set forth in an anti-SLAPP statute. Thus, even if it is beyond the initial thirty-day time period, defendants should file a motion to dismiss and request the court take the motion under consideration.

2. Staying Discovery

Generally, filing an anti-SLAPP motion stays all discovery. Conn. Gen. Stat. ' 52-196a(d). The statute provides that "[t]he court shall stay all discovery upon the filing of a special motion to dismiss. The stay of discovery shall remain in effect until the court grants or denies the special motion to dismiss and any interlocutory appeal thereof." ' 52-196a(d) ("The stay of discovery shall remain in effect until the court grants or denies the...

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