IMPORTANT CHANGES TO OREGON'S ANTI-SLAPP STATUTE (ORS 31.150) go into effect January 1, 2010.

Has your client been SLAPPed by a "Strategic Lawsuit Against Public Participation?" Have you been surprised by a Defendant's Special Motion to Strike? The 2009 Legislature made many changes to Oregon's Anti-SLAPP law which was first adopted in 2001 and modeled after the then-current version of the California statute.

If a claim (or counter-claim) in a suit is based on Defendant's use of language or other forms of expression--whether that claim is for defamation, interference with business or other commercial claims, intentional infliction of emotional distress, violations of consumer protection laws, or a number of other types of claims--the Defendant may make a Special Motion before any further pleading. Generally, the Motion must be made within 60 days of service of the pleading. Discovery is immediately stayed.

ORS 31.150 requires the court to engage in a two-step process in reviewing the Defendant's Special Motion to Strike:

1. Does Defendant meet the threshold burden of showing that the Plaintiff's claim arises from Defendant's "right of free speech in connection with a public issue or an issue of public interest" (the "arising out of" prong)?
2. If so, then does Plaintiff show "that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case?" ORS 31.150(3).

See, Staten v. Steel, 222 Or App 17, 29, 191 P3d 778 (2008). Both grants and denials of Special Motions will now immediately be appealable as limited judgments. A prevailing Defendant is entitled to attorney's fees; a prevailing Plaintiff is not.

There is very little appellate guidance on this statute in Oregon. There are serious Oregon Constitutional questions about the interplay between the new procedural burdens, lack of discovery and Constitutional guarantees. Consider the issues in a per se defamation case: Plaintiff has a common law right to hold Defendant strictly liable for false, injurious words (Oregon Constitution, Article I, § 8), to have a remedy for injury to reputation and to have Defendant's credibility and motives assessed by a jury (Oregon Constitution, Article I, §§ 10 and 17). Yet the anti-SLAPP statute gives procedural advantages to the Defendant who has injured another through speech, denies discovery to Plaintiff and allows the court to review “evidence” in a dispositive manner only weeks after the suit is filed.

If you are defending a claim that is based on your client's expression, you must consider making a Special Motion at the earliest time.

If you are filing a defamation, trade disparagement or false light claim you know the law of defamation is already complicated. The Special Motion procedure means you now must gather as much evidence as possible on each element of a claim before filing suit. An allegation based on "information and belief subject to discovery" will not survive the burden of "presenting substantial evidence" at this intial stage.

Prepare for this expedited Special Motion hearing and make your best and most complete record for appeal on these complex issues. Consultation on ORS 31.150, defamation, Oregon Constitutional issues. Linda Williams, linda@lindawilliams.net

We are gathering pleadings and trial court opinions for our Oregon Anti-SLAPP Resource Center pages, now under construction..