A number of law bloggers have posted recently (as noted by Colin Samuels at the link referred to in my previous post) in support of a federal statute to deal with the problem of lawsuits known as “strategic lawsuits against public participation”–SLAPP suits. Ken at Popehat explains, and does so very well (except for his recurring bad habit of using dirty words — made family-safe here! — for no @%*! good reason):
Last week Marc Randazza touted Congressman Steve Cohen (D-TN)’s Citizen Participation Act, a federal anti-SLAPP statute. It’s been boosted elsewhere as well. Randazza is absolutely [neato] on First Amendment issues — he has more fun than should be legal eviscerating opponents of free speech. I was happy to hear his call to make March “National SLAPP month,” and remain happy even after Patrick explained to me that it doesn’t mean I actually get to hit anyone. But I’m not entirely with Marc on Rep. Cohen’s bill.First things first: for those not in the know, an anti-SLAPP statute protects litigants from meritless and/or frivolous lawsuits attacking protected speech. The statutes differ substantially among the few jurisdictions that have them, but they all share the same core idea: when plaintiffs sue defendants for certain types of speech, defendants should be able to force the plaintiff to convince a judge that they have a case before they force defendants to incur ruinous litigation costs. Some anti-SLAPP statutes are vigorous and effective, like California’s. I’m very fond of California’s anti-SLAPP statute, under which a judge recently ordered a plaintiff to pay my client nearly $35,000 in attorney fees. Other states, however, have narrow, weak, or ineffective anti-SLAPP statutes — take Maryland, for instance. Many jurisdictions have no anti-SLAPP statutes at all. There’s no existing federal anti-SLAPP statute, though federal courts have sometimes applied state anti-SLAPP statutes to pendant state claims or state claims in diversity cases.
Ken is right: There are some serious problems with anti-SLAPP laws. I have been so under water that I haven’t had the chance to respond to the original email that went out urging that we post on this topic, and the movement sort of moved on without me (amazingly!). But while so many of my clients have been wrongly harmed, or even destroyed, by what could definitely be described as SLAPP suits — which in theory this new law would “solve “– at least one of them has been beat up pretty good by misapplication of the California version of this law, too. All of which goes to show just how “solutions” consisting of more law so often end up doing exactly the opposite of what they were meant to do.
In the one particular case where this happened, my client — the “famous” S & L Vitamins, here sued under another business name, “Body Source” — was the defendant in a case brought by California Tan, a maker of indoor tanning salon goop. This was the first “tanning lotion case” in that series of litigations in which the tanning lotion companies threatened to file, or in this case did file, complaints that were rafts of specious intellectual property claims meant to stop S & L from competing with the companies’ “authorized” distributors, despite their legal right to do so (and despite the fact that it was these distributors who were selling them the stuff in the first place).
In other words, for those of you who are not regular readers and hence already sick of the topic, these cases were nothing more or less than a business strategy to financially break companies that had the temerity to sell merchandise online without permission of the manufacturer. Eventually these companies ended up being owned by one big fat one now called, quite ironically for the Dark Lords of indoor self-immolation, New Sunshine LLC. And eventually they found that judge who was willing to shut S & L Vitamins down under a unique theory of liability (i.e., aggravated filing of legal arguments the Court does not understand). But in 2004, this process was just beginning.
Creative as ever, among our counterclaims in the “Cal-Tan” case was a charge that the plaintiff was — as ultimately all the tanning lotion companies under this umbrella did — using meritless trademark infringement actions, and the threat of them, as a form of unfair competition itself. This is not, as demonstrated below, a novel proposition under the cases; and as a matter of common sense, it is pretty self-evident.
Plaintiff’s California Ãœber Alles response, however, was to go out and hire a specialty law firm that handles mainly SLAPP cases, substitute them into the case for the general counsel, and make a motion to dismiss, and for sanctions, under California’s SLAPP statute based on this counterclaim.