California SLAPP Law

What is the purpose of an anti-SLAPP motion?

Contrary to the seeming belief of some attorneys, the purpose of is anti-SLAPP motion is not just to recover attorney fees. Of course you should seek attorney fees after a successful anti-SLAPP motion, but the purpose of the motion is to extract your client from a wrongful and harassing lawsuit as quickly as possible.

Indeed, in a perfect world, when your client was served with a SLAPP, you would contact opposing counsel, instruct them on the error of their ways, and get a dismissal without ever having to bring an anti-SLAPP motion. In the real world, that’s not normally a viable option. Putting the opposition on notice that they have filed a SLAPP could afford them the opportunity to amend in order to change the nature of the action. Your effort to avoid further litigation could actually result in your client being trapped in an action that could have been disposed of with the anti-SLAPP motion.

However, after the anti-SLAPP motion is filed, the negotiations to end the action can begin. I have been successful in this effort on at least two occasions that I recall. I contacted opposing counsel, informed him of the attorney fees that had been incurred to date, and afforded the opportunity to settle the matter for the payment of those fees and costs before the case went any further.

I recognize that this approach is antithetical to many attorneys, who view an anti-SLAPP motion as an opportunity to run up the attorney fees. However, if the matter can be resolved early on, even before significant attorney fees are incurred, then that is always in the best interests of the client.

If opposing counsel fails to see the wisdom of a dismissal and elects instead to go to war, there is still a perfect opportunity for negotiation after a successful anti-SLAPP motion. After a successful motion, the Plaintiff is truly looking down the barrel of the fee gun. Before bringing a motion for attorney fees, Plaintiff’s counsel can again be afforded the opportunity to avoid any additional attorney fees by paying the attorney fees and costs generated to that point. Again, if Plaintiff agrees, this extracts your client from the action as quickly as possible, and eliminates any need to pursue collection of the attorney fees. Perhaps more importantly, a settlement will avoid the chance of a protracted and costly appeal.

Settlement demands throughout the anti-SLAPP process are therefore an excellent idea. But as with most things related to the anti-SLAPP process, I encountered an attorney who has found a way to subvert even the settlement process.

In a recent case, my client’s former counsel filed what was clearly a SLAPP action, and was met with the predictable anti-SLAPP motion. I was brought in to oppose the anti-SLAPP motion, but on reviewing complaint, it was clear that there was no viable basis for an opposition. I advised client to dismiss the case immediately in order to turn off the attorney fee meter. What I witnessed next was one of the more extreme examples of a money grab I have ever seen from opposing counsel.

I was contacted by defense counsel, who, as I suggested above, said that my client should settle the case and avoid any additional attorney fees by doing so. However, the attorney provided a ridiculous number for the attorney fees that allegedly had been earned thus far, and was additionally seeking money in exchange for not filing a SLAPPback. Incredibly, he was demanding a seven-figure settlement.

In a rather entertaining conversation, I said:

I’m very familiar with SLAPPback actions. Indeed I publish the website SLAPP-back.com. But in my many years of pursuing anti-SLAPP motions, I have seen almost no viable SLAPPback actions. The problem is that in the case of a typical anti-SLAPP motion, brought early in the action as occurred in this case, there are simply no damages to recover beyond the attorney fees which are already ordered in conjunction with the anti-SLAPP motion. Unless your client is going to come to court and make some ridiculous and implausible claim that he suffered emotional distress damages as a result of being served with an action that was almost immediately dismissed, how is he going to prove damages beyond the attorney fees he incurred?

“Well, it did bother him that he was sued by your client,” was all opposing counsel could utter.

Unable to settle the matter, the defendant went forward with his motion for attorney fees on the anti-SLAPP motion. I opposed the motion and successfully reduced the requested fees in a significant amount. As anticipated, the SLAPPback action, that opposing counsel was claiming would garnish close to a million dollars, never came.

Do what’s best for the client. Negotiate an early dismissal, even if it does mean far less in attorney fees. And don’t sabotage those settlement negotiations by making ridiculous demands.