Law would en­able peo­ple to slap down SLAPP suits

The Dallas Morning News - - NOTEBOOK - THE WASHINGTON POST CHRISTO­PHER EL­LIOTT [email protected]­liott.org Christo­pher El­liott is a con­sumer ad­vo­cate, jour­nal­ist and co-founder of the ad­vo­cacy group Trav­el­ers United.

If you’ve never heard of a strate­gic law­suit against pub­lic par­tic­i­pa­tion (SLAPP), con­sider your­self lucky.

I hadn’t ei­ther un­til a knock at my door seven years ago. A process server pushed an en­ve­lope into my hand. “You are be­ing sued,” a no­tice at the top of the doc­u­ment pro­claimed. I felt my pulse quicken.

SLAPP law­suits most of­ten take the form of a defama­tion suit and are sur­pris­ingly com­mon. They are meant to bur­den in­di­vid­u­als with the cost of a le­gal de­fense un­til they stop their crit­i­cism. They af­fect trav­el­ers dis­pro­por­tion­ately, in large part be­cause trav­el­ers’ opin­ions have the power to af­fect the for­tunes of a ho­tel.

Last year, for ex­am­ple, roughly 2,500 TripAd­vi­sor users re­moved their re­views be­cause they were be­ing ha­rassed by busi­nesses they had rated, ac­cord­ing to the site. It’s not known how many dis­rupted re­views re­sulted in law­suits.

The Speak Free Act, which is ex­pected to be con­sid­ered by Congress in early 2017, al­lows any per­son against whom a SLAPP suit has been filed to make a spe­cial mo­tion to dis­miss the law­suit.

Pro­po­nents say a new anti-SLAPP law is needed on the fed­eral level be­cause only a patch­work of state laws ex­ist, and they of­fer un­even pro­tec­tion against these friv­o­lous le­gal com­plaints.

The Speak Free Act would al­low trav­el­ers to quickly end these suits be­fore they run up le­gal bills. Sup­port­ers say the law would also en­cour­age con­sumers to of­fer hon­est re­views with­out fear of ret­ri­bu­tion.

“Some­times, busi­nesses will threaten friv­o­lous defama­tion law­suits as a way to cen­sor crit­i­cism,” says Mark Grabowski, an in­ter­net law pro­fes­sor at Adel­phi Univer­sity. “The busi­ness knows it has no chance of win­ning the law­suit, but merely wants to in­tim­i­date cus­tomers, ri­vals and oth­ers from ex­press­ing neg­a­tive opin­ions about the busi­ness.”

That was cer­tainly my ini­tial re­ac­tion when I was sued. I didn’t want to write another word about the travel agency that claimed I had de­famed it. But my lawyer ad­vised me to cover every de­tail of the suit, ar­gu­ing that the bright glare of pub­lic­ity would make the law­suit dis­ap­pear.

He was cor­rect. And af­ter sev­eral months of back and forth, the suit was dropped.

I’m not alone. Con­sider what hap­pened to Michelle and Robert Du­chou­quette, who were sued for defama­tion, busi­ness dis­par­age­ment and a breach of con­tract this year by a Dal­las-area pet-sit­ting busi­ness. The Du­chou­quettes had hired Pres­ti­gious Pets to care for their two dogs while they were on va­ca­tion. But they were un­happy with the ser­vice and left a one-star re­view on Yelp.com.

Pres­ti­gious Pets claimed that the cou­ple’s re­view vi­o­lated a nondis­par­age­ment agree­ment they signed when they hired the com­pany and sued for $200,000 to $1 mil­lion in dam­ages. A court has dis­missed the law­suit.

“There’s no deny­ing that these types of law­suits serve to pun­ish those who speak out by plac­ing on them the heavy bur­den of costly civil lit­i­ga­tion,” says Nan­nina An­gioni, a la­bor and em­ploy­ment at­tor­ney with the Los An­ge­les law firm Kae­dian.

“To me, these law­suits tend to send a clear mes­sage: ‘Talk ill of us, and we will sue you — and it doesn’t mat­ter if we win or not be­cause ei­ther way, you’ll be stuck with the le­gal bills.’ ”

So how would the anti-SLAPP bill work? A lot like the 28 other anti-SLAPP laws in the coun­try, in­clud­ing one in Washington, D.C. If some­one thinks that the com­plaint against them is a SLAPP suit, they can file a spe­cial mo­tion, usu­ally at the be­gin­ning of the case. That mo­tion would force the plain­tiff to prove that the case has at least some merit and that the speech is not pro­tected by the Con­sti­tu­tion.

“If this is demon­strated, the bur­den shifts to the bringer of the suit to show that there is a rea­son­able prob­a­bil­ity of win­ning the case and is not com­pletely friv­o­lous in na­ture,” ex­plains Oz Cz­er­ski, an Orlando, Fla., at­tor­ney who spe­cial­izes in First Amend­ment law and writes the en­ter­tain­ment law blog thewiz­ard­oflaws.com.

Aside from pro­tect­ing con­sumers from friv­o­lous suits, why is a new law needed?

“Pas­sage of the Speak Free Act would have pos­i­tive ef­fects for all trav­el­ers — those who write re­views and those who rely upon travel re­views in de­cid­ing how to spend their money,” says Brad Young, as­sis­tant gen­eral coun­sel for TripAd­vi­sor, one of the com­pa­nies back­ing the bill.

Un­til the bill passes, le­gal ex­perts say you need to be care­ful.

You could be faced with a SLAPP suit “even if you post an hon­est re­view,” warns Ni­cole Wil­liams, an at­tor­ney in the Dal­las of­fice of Thomp­son & Knight, which rep­re­sented the Du­chou­quettes.

What about anony­mous re­views?

“Con­sumers may be sur­prised to know that even if they post com­ments on a pub­lic site anony­mously or un­der a pseu­do­nym, there is still a le­gal mech­a­nism for a com­pany or in­di­vid­ual to learn their real iden­tity and bring suit against them,” says Michael Ni­borski, a part­ner in the Los An­ge­les of­fice of the law firm Pryor Cash­man.

Even if the case has no merit — and SLAPP cases sel­dom do — it could be months or years be­fore it’s re­solved. Enough time to scare the aver­age con­sumer into si­lence and score a vic­tory for a busi­ness in­tent on con­trol­ling its im­age.

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