SLAPP Suits Get SLAPPed Back

Picture this. Your client has a legitimate claim and negotiations are fruitless so you file a lawsuit. Then, the defendant files a creative counterclaim that you know has no real legitimate basis.

So why did they file it? To SLAPP your client, that's why.

Merchants and businesses have figured out that they can sometimes get what they want by using (some say abusing) the very system that the consumer is using: the Courts.

A socially unhealthy way to silence critics of any endeavor is to hit them with a lawsuit that can tie them up, both their time and their resources. Such lawsuits have been called a Strategic Lawsuit Against Public Participation ("SLAPP") and the purpose is nothing more than intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.

Fighting a SLAPP lawsuit is not easy and not cheap, and that is often the very purpose of filing it.

Winning the lawsuit is often not real goal of a SLAPP lawsuit at all. The merchant's goals are accomplished if the consumer-defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons their own cause in exchange for having the SLAPP lawsuit dropped. A SLAPP may also intimidate others from taking the same course.

Well, finally there's a new case that says you can slap back. It comes out of New Jersey and may provide some relief to this sort of vindictive and abusive lawsuit. The case is James LoBiondo Jr v Grace Schwartz, decided May 14, 209, Case A-86/87-07. In a long-running series of lawsuits between the parties, the high court has now made it clear that people who file SLAPP lawsuits can get SLAPPed back.

LoBiondo says that the common law cause of action for malicious use of process can be a legitimate claim by a SLAPP suit victim. In some states it's called abuse of process. To win such a claim the victim has to prove a complaint was filed without probable cause, that was caused by malice, that ended in favor of the victim, and that the victim suffered "a special grievance." That last part is a little puzzling, but the Court indicates it will use some flexibility to determine what a special grievance may be.

The right of free speech or to petition the government, if actually infringed, will satisfy the special grievance element of the claim, according to the Court.

The advice of counsel defense is available to defend a SLAPP suit but when asserted, the victim may also sue the attorney too, but there is the additional need to prove the attorney's primary motive was an improper one.

The New Jersey Court adopted the Restatement 3rd of the Law Governing Lawyers and the Restatement 2nd of Torts to lay out the principles and elements of the claims the victim can use.

The bottom line is that SLAPP suits have been used by some parties to intimidate and plaintiffs and prospective plaintiffs from asserting their rights and now the Courts are finding such lawsuits can trigger abuse of process claims back against the abuser. That's only fair.

The purpose of the law should not be to provide the rich and powerful with a means to silence their critics. Such abusers of the legal system should themselves become the target of "SLAPP-back" lawsuits until they stop.

Ronald Burdge
Helping consumer advocates win cases since 1978.