Oregon is now entering its fourteenth year of anti-SLAPP litigation under a decidedly robust statute (ORS 31.150 to .155). Courts broadly apply the statute’s two-step “special motion to strike” not only to claims that arise out of statements made to government or in government proceedings, but also to all statements made “in a place open to the public or a public forum in connection with any issue of public interest,” and even, under a “catch all” provision, to any civil claim, including crossclaims or counterclaims, that arises out of: (1) any conduct; (2) in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech; (3) in connection with a public issue or an issue of public interest. “Public issue” and “issue of public interest” have themselves been broadly construed.
Oregon’s special motion is to be made within 60 days of service of a complaint, but it may be made at any later time in the court’s discretion. The special motion is treated procedurally as a motion to dismiss, which means that it must be made before an answer to the claim in question is filed. All discovery is immediately stayed upon filing, except that for good cause shown a court may allow specific, limited discovery.
If a moved-against claim falls under the special motion to strike, a claimant (usually plaintiff) can defeat the motion only by presenting substantial evidence regarding each element of the claim’s prima facie case. Recent court decisions have emphasized, however, that courts are not to “weigh” competing evidence in determining whether a claimant has satisfied the burden. If the court denies a special motion to strike, it must promptly enter a limited judgment. This allows immediate appeal, which must be taken by Oregon’s intermediate appellate court. If the movant prevails at trial or on appeal, reasonable attorney fees and costs are mandatory. On granting a special motion, the court enters a judgment of dismissal without prejudice. The legislature has instructed courts that Oregon’s anti-SLAPP statute is “to be liberally construed in favor of the exercise of the rights of expression…” ORS 31.152(4).
During 2014, state and federal courts have provided additional direction about the workings of Oregon’s anti-SLAPP statute. The following are this year’s key developments. Note that, as described below, the Oregon Supreme Court may issue its first decision interpreting the anti-SLAPP statute in 2015.
Young v. Davis, 259 Or App 497, 314 P3d 350 (Nov. 20, 2013): Defining plaintiff ‘s burden in defeating a special motion to strike.
After defendant Davis reported to her supervisor that co-worker Young had sexually harassed her, Young sued Davis. Defendant moved to specially strike the defamation and wrongful use of civil proceedings claims under Oregon’s anti-SLAPP statute. Defendant asserted that both claims arose out of conduct covered by the statute and that Young failed to meet her statutory burden of establishing a “probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case.” ORS 31.150(3). The trial court granted the special motion to strike and Young appealed.
The Court of Appeals reversed, explaining that the trial court improperly weighed the evidence in order to determine whether plaintiff’s claims were “likely to succeed on the merits.”
[T]he statutory text indicates that the presentation of substantial evidence to support a prima facie case is, in and of itself, sufficient to establish a probability that the plaintiff will prevail; whether or not it is “likely” that the plaintiff will prevail is irrelevant in determining whether it has met the burden of proof set forth by ORS 31.150(3).
259 Or App at 508 (emphasis in original). In other words, a trial court’s consideration of a defendant’s evidence under the second step of the anti-SLAPP procedure is limited to determining whether that evidence “defeats plaintiff’s claims as a matter of law.” 259 Or App at 509. Considerations of credibility and relative strength of evidence are improper.
In reaching its decision, the court assumed without deciding that the anti-SLAPP statute applied to the claims at issue, under the statute’s first step. The court found that plaintiff’s argument concerning that analysis was insufficiently presented and it simply proceeded to the second step to resolve the matter.
Neumann v. Liles, 261 Or App 567, 323 P3d 521, review allowed, 356 Or 516 (2014): How does a court treat affirmative defenses, such as conditional privileges?
In late 2014, the Oregon Supreme Court signaled its intention to address the anti-SLAPP procedure for the first time by accepting review of the Oregon Court of Appeals’ decision in Neumann v. Liles, a case involving a wedding guest’s critical online review. The high court’s reformulation of the questions presented for review suggests that any decision it reaches is likely to address both substantive issues of defamation law and the proper application of the anti-SLAPP procedure.
The Court of Appeals’ decision to be reviewed reversed the trial court’s anti-SLAPP dismissal of claims brought against a guest who posted a negative online review about a wedding venue and one of its owners. They sued the guest, alleging defamation, false light and intentional interference with economic relations. The trial court granted the guest’s special motion to strike all claims.
The Court of Appeals reversed the dismissal of the owner’s defamation claim (not reaching other claims, which the plaintiffs failed to separately address on appeal). As in Young, the court assumed but did not decide that the first step of the anti-SLAPP process had been satisfied, finding again that plaintiffs did not present a “focused argument” on that issue, but noting that applying the statute to “online business reviews appears to be consistent with the plain text of the statute.” 261 Or App at 574-75. Moving to the second step, the court held that the plaintiffs had met their statutory burden of establishing a probability of prevailing on the claim by presenting substantial evidence to support a prima facie case. The decision again emphasized that courts are not to “weigh the evidence in evaluating a special motion to strike,” framing the second step of the anti-SLAPP analysis as whether plaintiffs’ evidence, “if credited, would permit a reasonable fact finder to rule in [plaintiffs’] favor.” Id. at 575. The court also described the analysis as whether the evidence submitted by the defendant would defeat plaintiffs’ claim “as a matter of law.”
From an anti-SLAPP perspective, the most notable aspect of the decision is the court’s perplexing comment that the issue of “whether and to what extent ORS 31.150 authorizes parties to litigate affirmative defenses in the context of a special motion to strike” remains an open question. The Oregon statute provides that courts “shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based,” ORS 31.150(4) (emphasis added). The Supreme Court has identified this issue on further appeal, reframed as “must a plaintiff rebut a defendant’s affirmative defense of qualified privilege” in order to meet plaintiff’s burden to defeat an anti-SLAPP motion.
Schwern v. Plunkett, Case No. 3:14-cv-00146-PK, 2014 WL 3361902 (D. Or. July 7, 2014): Shall all favorable inferences be given to plaintiff’s incomplete evidence?
Following Young and Neumann, the federal District Court in Oregon recently addressed plaintiff’s evidence submitted to defeat an anti-SLAPP motion. In Schwern, plaintiff asserted that defendant falsely claimed plaintiff had sexually assaulted her. Plaintiff filed defamation and other claims, all arising out of alleged statements, and defendant filed a special motion to dismiss all claims. The court denied the motion, concluding as to each claim that the court should draw inferences from the contradictory evidence and should consider all reasonable inferences favorable to plaintiff in evaluating the sufficiency of the evidence to meet plaintiff’s burden under the second step of the anti-SLAPP statute. Id. at *11, *13, *15.
Plaintiff and defendant directly contradicted each other about the truth or falsity of the assault; defendant had made a full police report and had successfully obtained a restraining order but later declined to participate in criminal prosecution. Plaintiff offered no direct evidence that defendant had actually made the allegedly defamatory statements to the other parties in question, although plaintiff did provide the declaration of a different party regarding receipt of similar statements and plaintiff presented circumstantial facts regarding timing and location. Looking at the evidence offered, the court concluded that “it is reasonable to infer from the presumed falseness of [defendant’s] presumptive statements and from the identities of the persons to whom the statements were presumptively made…[that plaintiff’s] evidentiary proffer is sufficient….” Id. (emphasis added). In so doing, however the court invoked the federal pleading standard set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), id. at *10, evaluating plaintiff’s evidence for anti-SLAPP purposes under this “forgiving standard.”
The District Court stated that “[i]n evaluating special motions to strike under Section 31.150, the Oregon courts consider ‘the facts underlying plaintiffs’ claims in the light most favorable to plaintiffs[.]’” Id. at *3, quoting Neumann v. Liles, 261 Or App 567, 570 n. 2 (2014). The Neumann court, however, had made that statement without citation to authority or further explanation. In fact, in earlier cases, the Oregon Court of Appeals distinguished the anti-SLAPP procedure from other dispositive motions that require drawing inferences in the non-movant’s favor. While in other settings a plaintiff may rely on inferences from evidence in addition to direct evidence,
ORS 31.150(3) expressly shifts the burden of production of evidence onto the nonmoving plaintiff, and it requires a court to evaluate the evidence and draw a conclusion as to whether there is a probability that the plaintiff will prevail. By contrast, on summary judgment, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party, and draw a conclusion as to whether there is a triable disputed issue or fact.
Oregon Educ. Ass’n v. Parks, 253 Or App 558, 566 (2012); see also Staten v. Steel, 222 Or App 17, 50 n 6 (2008).
Neumann and Schwern nonetheless head down a path permitting all reasonable inferences to be drawn from a plaintiff’s otherwise incomplete evidence. Query whether future decisions will ask whether that is consonant with the legislature’s use of the phrases “substantial evidence” and “probability of success,” and with the legislative instruction that the provisions of Oregon’s anti-SLAPP statute are to be “liberally construed” in favor of speech.
The District Court also allowed plaintiff to quite belatedly submit evidence, admittedly untimely, “because dismissal under Section 31.150 is necessarily without prejudice” and judicial economy would be served by deciding all issues “definitively and expeditiously.” Schwern, 2014 WL 3361902 at *9. That approach may be at odds with the statutory requirement that a judgment be entered upon granting of a motion and, especially, that a defendant must be awarded attorney fees in connection with prevailing in a special motion.
Pending in the state Court of Appeals is Mullen v. Meredith Corporation, Oregon Court of Appeals No. A149990. In that matter, the trial court found that the anti-SLAPP statute did not apply to a television news broadcast that, allegedly both tortiously and despite agreement, revealed the location of a prison guard’s home, and which resulted in threats to the guard and his family from past and present inmates. The news story arose from shots fired in the guard’s neighborhood, some of which hit the guard’s home. The court held that broadcasting the footage of the guard’s house and address was “not necessary” to the story. Since under plaintiff’s allegations, that portion of the broadcast was tortious, the court held that the conduct that was the subject of the claim was not “conduct in furtherance of the exercise of the constitutional right of free speech” and thus did not invoke the anti-SLAPP statute. Representing the defendants, the authors here have argued that this analysis improperly places the “cart before the horse” by deciding a step 2 issue in the step 1 analysis. The case is now pending.
In Accuardi v. Fredericks, 2014 WL 1618357 (D Or April 22, 2014), the federal court held that the anti-SLAPP statute’s requirement of payment to prevailing defendant of reasonable attorney fees is not limited to time spent only on the issues regarding the special motion, citing a string of previous Oregon district court decisions.
In Clackamas River Water v. Holloway, 261 Or App 852, 322 P3d 614 (2014), the trial court granted defendants’ special motion to strike but also included in its judgment an order that granted injunctive relief to plaintiff. Plaintiff argued that relief was permissible because it was ordered “simultaneously,” but the Court of Appeals held that granting the special motion to dismiss the complaint was in all events “logically prior to [any] decision on the merits.” Once an anti-SLAPP special motion has been granted, a trial court commits error in reaching, in any way, the merits of any underlying claim.
In Galena Biopharma v. Ioannides, 2014 WL 792170 (D Or Feb 25, 2014), defendants moved to dismiss plaintiff’s complaint for lack of personal jurisdiction and alternatively moved to strike plaintiff’s complaint under Oregon’s anti-SLAPP statute, on the same grounds. The court granted the FRCP 12 motion and denied the anti-SLAPP motion as moot. Of course, defendant was not awarded fees for prevailing on that motion. Query whether defendant might have raised personal jurisdiction solely in an anti-SLAPP special motion without being subject to the limitation or waiver provisions in FRCP 12(g) or (h), regarding other motions. Oregon statute makes clear that in state court, a special motion to strike does not implicate the motion consolidation requirements of ORCP 21F.
Duane A. Bosworth is a Partner in the Portland office of the firm.