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New York Anti-SLAPP Rules Strengthened

By Robert R. Boeche, Partner and Andrew Steiger, Law Clerk of Shustak Reynolds & Partners, P.C. posted on Monday, April 19, 2021.

Robert R. Boeche II

Robert R. Boeche II


Location: San Diego, California
Phone: (619) 696-9500 (Ext. 122)
Direct: (619) 546-5502
Email: [email protected]

New York State passed new anti-SLAPP laws on November 10, 2020.[1] The term “SLAPP” is an acronym that stands for “Strategic Lawsuit Against Public Participation.” These laws help prevent plaintiffs from curtailing the free speech of another person by “burying them” in meritless litigation. As of this writing, anti-SLAPP laws are on the books in 30 states.[2] Those state laws provide differing levels of protection. New York is replacing a 1992 law in light of decades of experience and experimentation by other state legislatures.

Old Rule

The previous New York anti-SLAPP statute had two main deficiencies.[3] First, the old definition of “public petition and participation” applied too narrowly. [4] Its scope was limited to lawsuits filed against defendants who challenge, report, or comment on zoning changes, permits, or other public permissions. The old definition also limited anti-SLAPP protection to communications within that same vein of public petition, and did not adequately encompass communications made via the internet or social media. Second, the old rule did not designate a remedy for successful defendants of SLAPP suits.[5]

New Rule

The new anti-SLAPP statutes resolve both issues by adopting an analogous regime to the gold standard developed in California, and exported in whole or in part to at least 11 states and counting.[6]

The updated statutes broaden the scope of the existing rule, allowing new kinds of lawsuits to qualify for special procedural treatment.[7] Now cases involving “any communication in a place open to the public or a public forum in connection with an issue of public interest” may implicate New York state anti-SLAPP protections. If a suit falls within the extremely broad scope of the new anti-SLAPP statute, then the defendant may use the special procedural mechanism known as an anti-SLAPP motion to petition for rapid dismissal at the outset of litigation. The burden then shifts to the SLAPP plaintiff to prove that the suit is supported by a “substantial basis in the law,” otherwise the motion will succeed, the case will be dismissed, and the SLAPP plaintiff will suffer consequences.

The new law has teeth the old law lacked.[8] The new anti-SLAPP motions happen at the outset of litigation, greatly reducing the time and cost needed to conclude a SLAPP suit. An anti-SLAPP motion also automatically stays the expensive discovery process, deferring it until the motion is decided and preventing the SLAPP plaintiff from using discovery to burden or harass the defendant. Perhaps most critically, SLAPP defendants need not bear the costs of litigation forever, as the new statute provides for mandatory fee and cost shifting. That means a defendant in a dismissed SLAPP suit is always entitled to recover his or her attorney fees and costs of suit.

Between the special motion to dismiss, and the mandatory fee and cost shifting, the new anti-SLAPP rule makes it riskier for wealthy parties to throw their economic weight around to silence a less pecunious party. Parties considering litigation in New York state should beware of its new anti-SLAPP rules and work proactively with their attorney to ensure their legal strategy takes it into account.

Shustak Reynolds & Partners, P.C. focuses its practice on securities and financial services law and complex business disputes. 
We represent many broker-dealers, registered representatives, investment advisors, investors and businesses. 
Attorney Robert R. Boeche can be reached in the firm’s San Diego office at (619) 696-9500.







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