Connecticut’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute—Conn. Gen. Stat. § 52- 196a, effective January 1, 2018—was enacted to protect parties from frivolous lawsuits aimed at curtailing the exercise of certain federal and state constitutional protected rights. Connecticut joined a number of other states in enacting anti-SLAPP litigation to prevent private parties from bringing meritless lawsuits aimed at deterring individuals from the exercise of free speech, free association and freedom to petition government in areas of public concern whereby litigation is designed to burden the defendant and discourage the exercise of these constitutional freedoms. Thus, anti-SLAPP statutes are created and utilized to “enable early disposition without having to incur protracted and costly litigation.” Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728 (2003). The “quintessential” SLAPPs are “generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights to punish them from doing so.” Duracraft Corp. v. Holmes Prod. Corp., 691 N.E.2d 935, 940 (Mass.1998) (quoting Wilcox v. Superior Court, 27 Cal. App. 4th 809, 816–17 (Cal.App.2d 1994)).
In Connecticut, the anti-SLAPP statute is designed to protect parties from meritless lawsuits seeking to subject a defendant to litigation arising as a result of defendant’s exercise of the right to free speech, the right of association, and the right to petition the government on a matter of public concerns. Matters of public concern include, “issue[s] related to (A) health or safety, (B) environmental, economic, or community well-being, (C) the government, zoning and other regulatory matters, (D) a public official or public figure, or (E) an audiovisual work.” Conn. Gen. Stat. § 52-196a.
Importantly, the statute provides a procedure mechanism for the filing of a motion to dismiss by a defendant requiring the court to conduct an expedited hearing and restraining discovery while the motion is pending. “The purpose of Connecticut’s anti-SLAPP statute is to protect parties from meritless lawsuits designed to chill free speech, among other rights.” Pacheco Quevedo v. Hearst Corp., No. FSTCV195021689S, 2019 WL 7900036, *1 (Conn. Super. Ct. Dec. 19, 2019). Thus, the anti-SLAPP statute can be an effective tool when utilized properly to dismiss frivolous lawsuits seeking tort remedies from a defendant whose actions represent the exercise of freedoms protected by the state and federal constitution.
Importantly, however, the statute provides express exceptions for claims which are outside the scope of the anti-SLAPP statute. While claims such as emotional distress, libel, and defamation are included within the purview of this statute, the special motion to dismiss is not applicable to common law claims asserting losses from bodily injury or wrongful death. The statute specifically states:
[T]his section shall not: (1) Apply to an enforcement action . . . brought in the name of the state or a political subdivision of the state by the Attorney General; (2) affect or limit the authority of a court to award sanctions, costs, attorney’s fees or any other relief available . . ., court rule or other authority; (3) affect, limit or preclude the right of a party filing a special motion to dismiss to any defense, remedy, immunity or privilege otherwise authorized by law; (4) affect the substantive law governing any asserted claim; (5) create a private right of action; or (6) apply to a common law or statutory claim for bodily injury or wrongful death, except the exclusion provided in this subdivision shall not apply to claims for (A) emotional distress unrelated to bodily injury or wrongful death or conjoined with a cause of action other than for bodily injury or wrongful death, or (B) defamation, libel or slander. The provisions of this subdivision shall not prohibit a plaintiff who brings a claim for bodily injury or wrongful death from filing a special motion to dismiss a counterclaim under the provisions of this section.
As this state and the nation find themselves in a period of increased exercise of its citizens in the right to free speech, free association and petitioning the government on matters of public concerns, there will undoubtedly be an increase in litigation which may avail defendants of the anti-SLAPP statute in Connecticut as a means of seeking an expedited dismissal of meritless lawsuits. Accordingly, claims representatives and defense counsel should familiarize themselves with Connecticut’s anti-SLAPP statute and precedents from other jurisdictions in order to protect their clients against such claims.
This article explores the history of anti-SLAPP litigation and its enforcement in our courts.
The History Behind Connecticut Anti-SLAAP Statute’s Predecessors
Although Connecticut’s anti-SLAPP statute is relatively new—having been in effect for a little over two years—other states, including California, have well-developed precedents on this claims and should be consulted for guidance.
California was the first state to enact an anti-SLAPP statute and many courts refer to the California statute and case law when ruling on motions to dismiss. See Jarrow Formulas, 31 Cal. 4th at 728 (noting that most of the decisions applying anti-SLAPP statutes are in California courts). In fact, in creating their own anti-SLAPP Statutes, most states, including Connecticut, have modeled their statutory language from California’s statute. See Graves v. Chronicle Printing Co., 67 Conn. L. Rptr. 442, 2018 WL 6264070, *5 (Conn. 2018); see also Tennenbaum v. Ariz. City Sanitary Dist., 799 F. Supp. 2d 1083, 1088 (D. Ariz. 2011) (Arizona); Boley v. Atlantic Monthly Grp., 950 F. Supp. 2d 249, 255 (D.D.C. 2013) (District of Columbia); Buckley v. DIRECTV, Inc., 276 F. Supp. 2d 1271, 1274 (N.D. Ga. 2003) (Georgia); Macris v. Richardson, 2010 Guam 6, 2010 WL 1872862 *4 (Guam 2010) (Guam); Hytel Grp., Inc. v. Butler, 405 Ill. App. 3d 113, 122 (2d Dist. 2010) (Illinois); Brandom v. Coupled Prod., LLC., 975 N.E.2d 382, 386 (Ind. Ct. App. 2012) (Indiana); Thomas v. City of Monroe La., 833 So. 2d 1282, 1286 (La. Ct. App. 2d Cir. 2002) (Louisiana); Bradbury v. City of Eastport, 72 A.3d 512, 517 (Me. 2013) (Maine); Nev. Rev. Stat. § 41.665(2) (“[T]he plaintiff must meet the same burden of proof that a plaintiff has been required to meet pursuant to California’s [anti-SLAPP] law as of July 8, 2015.”); Pagre v. Parsons, 249 Or. App. 445, 461 (2012) (Oregon); Pennsbury Village Assocs., LLC v. McIntrye, 608 Pa. 309, 320 (2011) (Pennsylvania); Serafine v. Blunt, 466 S.W.3d 352, 386 (Tex. App. Austin 2015) (Texas); Felis v. Downs Rachlin Martin PLLC, 2015 VT 129, 133 A.3d 836, 848 (Vt. 2015) (Vermont).
Procedural Requirements in Connecticut
There are several procedural requirements which must be followed if a defendant wants to avail themselves of the remedies afforded under the anti-SLAPP statute. These procedural requirements include a time limitation on the filing of the motion to dismiss, restriction on amendments to the complaint, strict requirements directed to the court for conducting a hearing on the motion to dismiss, a limitation on the evidence to be considered at the hearing including defenses which may be raised by the defendant, a strict limitation on discovery which may be conducted, and a requirement that the court rule on the motion as soon as practicable. Perhaps, of equal importance is that the statute permits the successful party to recover costs and reasonable attorney’s fees as a result of prosecuting the motion to dismiss.
1. Time Limitations
The Connecticut statute holds that a party filing a special motion to dismiss must do so within thirty days of the return of the complaint or filing a counterclaim. Conn. Gen. Stat. § 52-196a(c). Despite this express limitation, the court may exercise its own discretion in considering motions filed beyond the 30 day time period. Conn. Gen. Stat. § 52-196a(c) (“The court, upon a showing of good cause by a party seeking to file a special motion to dismiss, may extend the time to file a special motion to dismiss.”). Similarly, in other jurisdictions courts have permitted the filing of anti-SLAPP motions to dismiss after the express statutory time period expired. See Karnazes v. Ares, 244 Cal. App. 4th 344 (2d Dist. 2016); Trapp v. Naiman, 218 Cal. App. 4th 113 (4th Dist. 2013), review denied, (Oct. 2, 2013); Chitsazzadeh v. Kramer & Kaslow, 199 Cal. App. 4th 676 (2d Dist. 2011); South Sutter, LLC v. LJ Sutter Partners, L.P., 193 Cal. App. 4th 634 (3d Dist. 2011); Platypus Wear, Inc. v. Goldberg, 166 Cal. App. 4th 772 (4th Dist. 2008), review denied, (Dec. 10, 2008) (holding that it was an abuse of discretion for the trial court to require the lawyer to explain why he did not apply earlier to file an anti-SLAPP motion); lsen v. Harbison, 134 Cal. App. 4th 278 (3d Dist. 2005) (holding that the plaintiff is not required to show the delay caused prejudice). Such discretion in considering a late filed motion may be exercised even without filing an application. Chitasazzadeh, 199 Cal. App. 4th at 676.
Accordingly, courts tend to be liberal in considering a motion to dismiss which was not filed within the strict time period set forth in an anti-SLAPP statute. Thus, even if it is beyond the initial thirty-day time period, defendants should file a motion to dismiss and request the court take the motion under consideration.
2. Staying Discovery
Generally, filing an anti-SLAPP motion stays all discovery. Conn. Gen. Stat. § 52-196a(d). The statute provides that “[t]he court shall stay all discovery upon the filing of a special motion to dismiss. The stay of discovery shall remain in effect until the court grants or denies the special motion to dismiss and any interlocutory appeal thereof.” § 52-196a(d) (“The stay of discovery shall remain in effect until the court grants or denies the special motion to dismiss and any interlocutory appeal thereof.”); Britts v. Superior Court, 145 Cal. App. 4th 1112 (6th Dist. 2006).
However, the court, upon motion of a party and showing of good cause, or upon its own motion, may order specified and limited discovery relevant to the special motion to dismiss. Conn. Gen. Stat. § 52- 196a(d) (“Notwithstanding the entry of an order to stay stay discovery, the court, upon motion of a party and a showing of good cause, or upon its own motion, may order specified and limited discovery relevant to the special motion to dismiss.”); 1-800 Contacts, Inc. v. Steinberg, 107 Cal. App. 4th 568 (2d Dist. 2003). “Good cause” refers only to discovery relevant to the plaintiff’s burden of establishing a “reasonable probability of prevailing on the claim.” 1-800 Contacts, 107 Cal. App. 4th at 568 (citing Sipple v. Found. for Nat. Progress, 71 Cal. App. 4th 226, 247 (2d Dist. 1999)) (recognizing that “good cause” does not include “testing” the opposing party’s motion or claims).
Discovery unrelated to the defense asserted by the defendant in the anti-SLAPP motion is not permissible. Blanchard v. DIRECTV, Inc., 123 Cal. App. 4th 903, 922 (2d Dist. 2004); Taheri Law Grp. v. Evans, 160 Cal. App. 4th 482, 492–93 (2d Dist. 2008). See also Evans v. Unknown, 38 Cal. App. 4th 1490, 1493 (1st Dist. 1995) (holding it is appropriate for the trial court to deny plaintiff’s efforts to seek discovery while moving for reconsideration on the anti-SLAPP motion); Sipple v. Found for Nat. Profress, 71 Cal. App. 4th 226, 247 (2d Dist. 1999) (holding it was not an abuse of discretion for the trial court to refuse to allow the plaintiff to take depositions because the plaintiff refused to explain what facts he intended to learn or how it would relate to the prima facie case); Schroeder v. Irvine City Council, 97 Cal. App. 4th 174, 193 (2002) (holding that the trial court acted properly in denying plaintiff’s request for discovery because they failed to show how depositions and discovery “would have produced evidence relevant to his prima facie showing”); Garment Workers Ctr. v. Superior Court, 117 Cal. App. 4th 1156, 1161 (2d Dist. 2004) (noting it was an abuse of discretion to allow six hours of depositions because it was unrelated to the defenses raised by the anti-SLAPP motion); Tutor-Saliba Corp. v. Herrera, 136 Cal. App. 4th 604, 615 (1st Dist. 2006) (holding it not an abuse of discretion to deny discovery sought by the plaintiffs eight months after the filing of the lawsuit and four months after the filing of the anti-SLAPP motion because the prima facie elements were established); McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97, 123 (4th Dist. 2007) (holding there was no right for the plaintiff to take the defendant’s deposition because it would not alter the plaintiff’s burden of establishing a prima facie case).
3. Standard of Review & Expedited Hearings
In considering an anti-SLAPP motion to dismiss, the court must conduct an expedited hearing within sixty days of the filing of the motion, unless:
(A) the court orders specified and limited discovery pursuant to subsection (d) of this section, in which case, the expedited hearing shall be held not later than sixty days after the date on which such specified and limited discovery must be completed, (B) the parties agree to a hearing date that is beyond the sixty-day period, or (C) the court, for good cause shown, is unable to schedule the hearing during the sixty day period.
Conn. Gen. Stat. § 52-196a(e)(1). In the expedited hearing, “the court shall consider pleadings and affidavits of the parties attesting to the facts upon which liability or a defense, as the case may be, is based.” Id. § 52-196a(e)(2).
A special motion to dismiss shall be granted if:
[T]he moving party makes an initial showing, by a preponderance of the evidence, that the opposing party’s complaint, counterclaim or cross claim is based on the moving party’s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the [State] Constitution . . . in connection with a matter of public concern, unless the party that brought the complaint, counterclaim or cross claim sets forth with particularity the circumstances giving rise to the complaint, counterclaim or cross claim and demonstrates . . . that there is probable cause, considering all valid defenses, that the party will prevail on the merits of the complaint, counterclaim or cross claim.
Id. § 52-196a(e)(3). Such court ruling must be made “as soon as practicable.” Id. § 52-196a(e)(4).
The review of a lower court’s decision on an anti-SLAPP motion is de novo, “applying the same two-step procedure as the trial court.” Jay v. Mahaffrey, 218 Cal.App.4th 1536 (4th Dist. 2013), review denied, (Oct. 30, 2013) (citing Cole v. Patricia A. Meyer & Assocs., APA, 206 Cal.App.4th at 1105). “With respect to evidentiary challenges submitted in connection with an anti-SLAPP motion, we review the trial court’s rulings for abuse of discretion.” Mahaffrey, 218 Cal.App.4th at 1536 (citing Batarse v. Serive Employees Intranat Union, Local 1000, 209 Cal.App.4th 820, 827 (2012)).
4. Prohibition Against Amending the Complaint
In accordance with the legislative intent of the statute, the leading courts hold that a plaintiff “may not frustrate a hearing” by amending the complaint after an anti-SLAPP motion is filed. Simmons v. Allstate Ins. Co., 92 Cal. App. 4th 1068, 1073 (3d Dist. 2001) (“Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from [the statutes’] quick dismissal remedy…the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading.”) (Emphasis added); Sylmar Air Conditioning v. Pueblo Contracting Servs., Inc., 122 Cal. App. 4th 1049, 1052 (2d Dist. 2004) (“It is the public policy of the State that the complaints arising from the exercise of free speech rights be evaluated at an early stage. This cannot be defeated by filing an amendment even as a matter of right . . .”). However, “plaintiffs cannot be said to have amended the complaint to subvert or avoid a ruling on an anti-SLAPP motion that had not been filed at the time the amendment was made.” JKC3H8 v. Colton, 221 Cal. App. 4th 468, 478–79 (3d Dist. 2013).
The prohibition against amending the complaint continues after an anti-SLAPP motion is granted. See Simmons, 92 Cal. App. 4th at 1073; Mobile Med. Servs. v. Rajaram, 241 Cal. App. 4th 164, 171–72 (2015) (holding, in review of the trial court’s decision, that “[t]he original motion to strike should have been granted in its entirety without allowing leave to amend.”).
A leave to amend may be granted under the second prong of the statute if substantially related to the actual merits of the claim. Martin v. Inland Empire Utils. Agency, 198 Cal. App. 4th 611 (4th Dist. 2011); EchoStar Satellite, LLC v. Viewtech, Inc., 2009 WL 1668712 (S.D. Cal. 2009); Nguyen-Lam v. Cao, 171 Cal. App. 4th 858 (2009), review denied, (May 13, 2009). This procedure is in compliance with the Federal Rules of Civil Procedure. See Verizon Del., Inc. v. Covad Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004). When the anti-SLAPP motion is denied, the court may grant a leave to amend the complaint. Renewable Res. Coal., 218 Cal. App. 4th 384, 393 n.4.
Some courts are divided, however, on “whether the bar to amendment comes into effect as soon as the defendant files an anti-SLAPP motion, or instead only if the court has indicated the anti-SLAPP motion has some level of merit.” Dickinson v. Cosby, 17 Cal. App. 5th 655, 676–81 (2d Dist. 2017); see also Mobile Med. Servs., 241 Cal. App. 4th at 171 (holding that amendments cannot be made once the defendant has met their burden on the first prong of the anti-SLAPP motion).
5. Awarding Attorney’s Fees
Connecticut’s anti-SLAPP statute provides that, “[i]f the court grants a special motion to dismiss under this section, the court shall award the moving party costs and reasonable attorney’s fees, including such costs and fees incurred in connection with the filing of the special motion to dismiss.” (Emphasis added.) Conn. Gen. Stat. § 52-196a(f)(1). This provision is significant because it enables the defendant to obtain an award of reasonable costs and fees if it is the prevailing party; see also Cronin v. Pelletier, No. CV186014395S, 2018 WL 3965004, at *4 (Conn. Super. Ct. July 26, 2018); G.R. v. Intelligator, 185 Cal. App. 4th 606 (4th Dist. 2010); Christian Research Inst. v. Alnor, 165 Cal. App. 4th 1315 (4th Dist. 2008). However, recovery is generally limited to reasonable fees and expenses associated with prosecuting the motion to dismiss. See Graham-Sult v. Clainos, 756 F.3d 724 (9th Cir. 2014) (holding that reasonable attorney’s fees equal the total hours reasonably required to complete the work, multiplied by the reasonable hourly fee); Winters v. Jordan, 2011 WL 1549391 (E.D. Cal. 2011) (finding only the time dedicated directly to working on the motion relevant to attorneys’ fees); Lucky United Props. Invs., Inc. v. Lee, 213 Cal. App. 4th 635 (1st Dist. 2013) (explaining that the interest on an award of costs and fees incurred post-judgment accrues from the grant of the award). However, parties must be prepared to properly present their claims for fees otherwise the court will reduce their award accordingly. GrahamSult, 756 F.3d at 724 (reducing the co-defendants fees due to block billing and charging for unrelated services). Reasonable attorney’s fees include the fees in the fee application (Conn. Gen. Stat. § 52- 196a(f)(1); Graham-Sult, 756 F.3d at 724)), the collection of the award (York v. Strong, 234 Cal. App. 4th 1471 (4th Dist. 2014), review denied (Jan. 21, 2015)).
California courts also hold that despite the ability of plaintiffs to voluntarily dismiss a complaint or causes of action before a ruling on a special motion to strike, the court can award reasonable attorney’s fees and costs by considering the merits solely for that purpose (Law Offices of Andrew L. Ellis v. Yang, 178 Cal. App. 4th 869 (2d Dist. 2009); Taheri Law Grp., 160 Cal. App. 4th at 482; S.B. Beach Props. v. Verti, 39 Cal. 4th 374 (2006); Kyle v. Carmon, 71 Cal. App. 4th 901 (3d Dist. 1999)), the court can award reasonable attorney’s fees and costs by considering the merits solely for that purpose (Tourgemn v. Nelson & Kennard, 222 Cal. App. 4th 1447 (4th Dist. 2014); Yang, 178 Cal. App. 4th at 869; Sylmar Air Conditioning, 122 Cal. App. 4th at 1049; Pfeiffer Venice Props. v. Bernard, 101 Cal. App. 4th 211 (2d Dist. 2002); Kyle, 71 Cal. App. 4th at 901 (dismissing the case on the merits but awarding attorney’s fees)).
If the anti-SLAPP motion would have been unsuccessful under the first step of the analysis, however, attorney’s fees will not be awarded. Tourgeman, 222 Cal. App. 4th at 1447. Cf. Stubbs v. Strickland, 297 P.3d 326, 129 Nev. Adv. Op. No. 15 (Nev. 2013) (holding that attorney’s fees may be awarded even if the anti-SLAPP motion would not have been successful under the first prong of the analysis).
If a defendant were to bring a frivolous motion to dismiss in Connecticut, a plaintiff may recover reasonable fees and costs. “If the court denies a special motion to dismiss under this section and finds that such special motion to dismiss is frivolous and solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to the party opposing such special motion to dismiss”). Conn. Gen. Stat. § 52-196a(f)(2). Accordingly, a defendant who files a meritless motion to dismiss also faces a potential award of attorney’s fees if a plaintiff can establish the motion was frivolous and solely to cause unnecessary delay of the proceedings. As with other provisions, Connecticut’s statute mirrors California’s anti-SLAPP statute in this regard. Kleveland v. Siegel & Wolensky, LLP, 215 Cal. App. 4th 534 (4th Dist. 2013) (imposing sanctions due to a frivolous motion and frivolous appeal). However, the plaintiff must persuade the court that the defendant’s motion was frivolous. Chitasazzadeh, 199 Cal. App. 4th at 676 (holding that filing after 60 days did not justify an award of attorneys’ fees); Gerbosi v. Glaims, Weil, West & Epstein, LLP, 193 Cal. App. 4th 435 (2d Dist. 2011); Baharian-Mehr v. Smith, 189 Cal. App. 4th 265 (4th Dist. 2010); Jocer Enters., Inc. v. Price, 183 Cal. App. 4th 559 (2d Dist. 2010), review denied, (June 9, 2010); Cal. Back Specialists Med. Grp. v. Rand, 160 Cal. App. 4th 1032 (2d Dist. 2008), review denied, (June 11, 2008); Moore v. Shaw, 116 Cal. App. 4th 182 (2004) as modified, (Mar. 26, 2004).
Thus far, there does not appear to be any case law in Connecticut in which a plaintiff was awarded attorney’s fees as a result of a frivolous motion to dismiss. The statute clearly provides this remedy is available to the plaintiff if it is established that the defendant’s filing of a motion to dismiss was both frivolous and designed solely to delay the litigation. Accordingly, defendants should be prepared to refute a claim by a plaintiff, even if the defendants does not prevail, that the filing of the motion was not dilatory and was brought based upon a good faith belief in the merits.
Two Part Analysis Undertaken by Courts Analyzing an Anti-SLAPP Motion to Dismiss in Connecticut
Similar to most states considering anti-SLAPP motions to dismiss, Connecticut courts have utilized a twoprong burden shifting analysis. First, the defendant shall present evidence that the complaint, counterclaim or cross claim is based on the defendant’s exercise of its right of free speech, right to petition the government, or right of association under the Constitution of the United States or the Constitution of Connecticut. Then, the burden shifts to the plaintiff to present evidence demonstrating with particularity to the court that there is probable cause, considering all valid defenses, that the plaintiff will prevail on the merits of the complaint, counterclaim or cross claim. The statutory language sets forth the basis for the two-prong, burden shifting analysis.
The defendant has the initial burden to demonstrate that the claimed conduct falls within the statute. Then, under the second prong of the analysis, the burden shifts to the plaintiff to establish by probable cause that will prevail on the claim taking into account the defenses thereto. Reid. v. Harriman, Superior Court, JD Fairfield, 2019 WL 5960521, *1 (Oct. 28, 2019).
1. Application of the Two-Prong Analysis
Under the first prong of the analysis the defendant must establish by a preponderance of the evidence that the conduct at issues involves a constitutional right protected by statute.
[T]he moving party has the initial burden to show by a preponderance of the evidence that the opposing party’s complaint falls within the scope of the statute. General Statutes § 52-196a(e)(3). Specifically, the plaintiff’s claims must be based on the defendant’s right to free speech, right to petition the government, or right to free association. Further, the defendant’s exercise of his or her right must relate to a matter of public concern. Section 52-196a(a) defines “right of free speech,” “right to petition the government,” “right of association,” and “matter of public concern.” In other words, the plaintiff’s claims fall within the scope of the statute if the defendant was exercising a right defined in § 52-196a(a) on a matter of public concern.
Id. at *2–3. As a threshold matter, if the defendant’s conduct which forms the basis of the complaint does not fall under the first prong, the motion will be denied. The defendants may satisfy the first prong of the analysis by demonstrating that they were executing a right of free speech, free association or the right to petition the government. While our courts have not had the opportunity to consider many different situations wherein those constitutional freedoms are at the gravamen of the conduct, the courts have signaled that protection of constitutional freedoms is of paramount consideration. See Reid, 2019 WL5960521 at *2–3 (holding that “statements” made to Bridgeport Police were axiomatically “based on their right to petition the government in connection with a matter of public concern regarding suspected criminal activity” and “were made to assist the police with an investigation”); Pacheco Quevedo, 2019 WL 7900036, at *2 (citing Gleason v. Smolinski, 319 Conn. 394, 415 (2015) as noting “public allegations that someone is involved in crime generally are speech on a matter of public concern”) (Internal citations omitted)); Day v. Dodge, Superior Court, JD New London, 2019 WL 99432, *3 (Jan. 25, 2019) (holding that the defendant’s report of sexual assault of a minor to police constituted a petition to the government and “[t]he right to petition government for suspected criminal activity, whether ultimately found to have probable cause or not, is a critical element in the performance of law enforcement and community safety”); Chapnick v. Dilaruo, Superior Court, JD New Haven, 2019 WL 3249891, *1 (June 17, 2019).
In Chapnick, 2019 WL 3249891, at *1, the plaintiffs asserted claims of nuisance, malicious prosecution, false imprisonment, intentional infliction of emotional distress, civil conspiracy, and injunctive relief. The defendants argued “that any statement given to the investigating police officers and/or corporation in the plaintiff’s prosecution is protected communication to a public official and a matter of public concern that falls within the scope of the anti-SLAPP statute.” The Superior Court agreed, citing McHale v. W.B.S. Corp., 187Conn. 44 (1982), recognizing that “[t]he policy of encouraging private citizens to assist in law enforcement is vindicated” by anti-SLAPP laws, and that “if the defendant has made a full and truthful disclosure and [] left the decision to prosecute entirely in the hands of the public officer, he cannot be held liable for malicious prosecution”).
Once the defendant has satisfied the first prong, the burden then shifts to the plaintiff under the second prong. It is the plaintiff’s burden to set forth “with particularity the circumstances giving rise to the complaint . . . and demonstrate[] to the court that there is probable cause . . . that the party will prevail on the merits of the complaint, counterclaim or cross claim.” Reid, 2019 WL 5960521, at *3 (quoting § 52- 196a(e)(3)); see also id. (analyzing whether the defendants’ alleged “intentionally false” statement to police fell within the statute’s protection and noting that the plaintiff’s complaint failed “to allege with ‘particularity’ any facts that the defendants acting with malice”); Farricker v. Turner, Superior Court, JD Stamford, 2020 WL 1953648, at *1 (Mar. 3, 2020) (noting that plaintiffs’ allegations were dismissed concerning communications with the FBI, but reserving the decision on the allegations concerning communications to other third parties and directing the plaintiff to revise the complaint to specify the recipient(s) of the communication); Cevetillo v. Lang, Superior Court, JD Milford, 2019 WL 7597451 (Dec. 13, 2019) (granting motion where complaint alleged defamatory statements published on Facebook and via email); Georgetti v. Nexstar Media Grp., Inc., Superior Court, JD New Haven, 2019 WL 4333270 (Aug. 15, 2019) (granting motion where allegations arose from defamatory news).
In Reid, the court recognized that a qualified privilege defense would satisfy the second prong of the analysis in favor of the defendant. 2019 WL 5960521, at *5 (“[B]ecause the plaintiff failed to set forth with particularity the circumstances upon which the defendants acted with malice . . . the allegations against the defendants which are the result of statements made to the police are subject to qualified immunity. Therefore, the plaintiff has failed to demonstrate to the court that there is probable cause, considering all valid defenses that he will prevail on the merits of his claim.”); see also Thurmand v. Univ. of Conn., No. 3:18-CV-1140 (JCH), 2019 WL 1763202, *8 (D. Conn. Apr. 22, 2019) (asserting defenses of “sovereign immunity, absolute immunity, qualified immunity, statutory immunity” would satisfy the second prong of the anti-SLAPP analysis under Conn. Gen. Stat. § 52-196a generally).
Thus, in all considered cases involving statements to police or FBI, the court found both the first and second prong of the anti-SLAPP statute satisfied. Defendants have similarly claimed qualified immunity with respect to the second prong analysis thereby demonstrating that the plaintiff is unlikely to prevail on the merits because the defendant is entitled to such immunity. See Reid, 2019 WL 5960521, at *4 (citing Gallo v. Barile, 284 Conn. 459, 471–73 (2007) (noting that “[o]ur Supreme Court has recognized that reporting crimes to the police is sufficiently compelling to warrant a qualified privilege”)).
2. Constitutionality of the Connecticut Anti-SLAPP Statute
Some Connecticut plaintiffs have challenged the 2018 anti-SLAPP statute as unconstitutional. See Gifford v. Taunton Press, Inc., No. DBDCV186028897S, 2019 WL 3526461, at *3 (Conn. Super. Ct. July 11, 2019) (arguing that the Connecticut anti-SLAPP was unconstitutional because:
(1) “the anti-SLAPP statute violates the plaintiff’s right to a trial by a jury provided by the Connecticut Constitution; Conn. Const., art. I, § 19” (2) “the anti-SLAPP statute violates the plaintiff’s right to petition the government for redress of grievances under the United States Constitution; U.S. Cons., amend. I,” and (3) “the anti-SLAPP statue violates the plaintiff’s due process rights under both the federal and state constitutions . . . because the probable cause standard is too vague to put an ordinary person on notice of its requirements.”
In doing so, plaintiffs point to states where anti-SLAPP statutes have been found unconstitutional. Id. at 3 (citing Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1238 (D.C.Cir. 2015)); Gaudette v. Davis, 2017 Me. 86 (2017); Leiendecker v. Asian Women United of Minn., 895 N.W.2d 623 (Minn. 2017); Davis v. Cox, 183 Wash.2d 269 (2015), abrogated on others grounds by Maytown Sand & Gravel, LLC v. Thurston Cnty., 191 Wash.2d 392, 423 P.3d 223 (2018); Opinions of the Justices, 138 N.H. 445 (1994)).
A Connecticut Superior Court, however, has expressly found that the plaintiff failed to meet his burden of proof that § 52-196a violates the right to a jury trial. Gifford, 2019 WL 3526461, at *5-7 (noting that the Connecticut Constitution “does not require courts to resolve disputed issues of fact or to dismiss claims that would survive summary judgment or a motion for directed verdict”).
The Court also distinguished the Connecticut statute from those held unconstitutional. Id. at *6 (noting that “[u]nlike Minnesota and Washington’s statutes, [Connecticut’s] anti-SLAPP statute only requires that a plaintiff whose claims are based on a defendant’s exercise of protected first amendment rights demonstrate at the outset that there is probable cause to believe he will prevail because his claims have merit”).
Connecticut’s anti-SLPP statute also has a probable cause standard which tends to be upheld as constitutional when compared with other high burdens of proof. See State v. Clark, 225 Conn. 268, 292- 93 (2001) (recognizing that the probable cause standard is much lower than a probability standard). This standard requires the court to merely determine there is a likelihood that a reasonable juror could find for the plaintiff. Riccio v. Harbour Vill. Condo. Ass’n, Inc., 281 Conn. 160, 165 (2007). The probable cause standard does not violate the Connecticut Constitution on its face. Gifford, 2019 WL 3526461, at *6 (noting that unlike New Hampshire’s anti-SLAPP statute which has a probability standard, the Connecticut statute’s probable cause standard is not unconstitutional).
The plaintiff also failed to show that his right to petition the government for redress of grievances was violated. Id. at *7. The Gifford court recognized the importance of the first amendment guarantee of the freedom to petition the Government for a redress of grievances. Id. (citing Reardon v. Keating, 980 F.Sup.2d 302, 310 (D.Conn. 2013)). See also Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 745–46 (1983) (“When a suit presents genuine factual issues, the [] plaintiff’s First Amendment interest in petitioning the state court for redress of his grievance, his interest in having the factual dispute resolved by a jury, and the [s]tate’s interest in protecting the health and welfare of its citizens, leads us to construe [an] [a]ct as not permitting the [court] to unsurp the traditional fact finding function of the state-court jury . . . ”). The Superior Court, however, explicitly stated that Connecticut’s anti-SLAPP statute “does not shield… defendants from liability” but “provides them with a procedural advantage designed to expeditiously dispose of unsupportable claims that might nevertheless chill speech and other legitimate activities because of the burdens associated with litigation. Graves, 67 Conn. L. Rptr. at 442. The statute “does not provide a mechanism for dismissing meritorious claims.” Gifford, 2019 WL 3526461, at *7. However, “baseless litigation is not immunized by the First Amendment right to petition.” Bill Johnson’s Rests., 461 U.S 743-44; see also Duracraft, 427 Mass. at 164 (“SLAPPS are by definition meritless suits”); Gifford, 2019 WL 3526461, at *8 (“As the legislative history of § 52-196a[]…amply demonstrates, the statue was intended to assist people that are sued on their free speech rights to have a means to quickly get rid of frivolous lawsuits . . . Permitting a defendant to quickly dismiss a meritless lawsuit is constitutional”) (Internal citations omitted; quotation marks omitted).
Finally, the plaintiff failed to show that Conn. Gen. Stat. § 52-196a was unconstitutionally vague on its face. Gifford, 2019 WL 3526461, at *7. “Under the requirements of due process of law . . . [a law] must be sufficiently definite to enable a person to know what conduct he must avoid . . . [A law] which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” (Citations omitted; internal quotation marks omitted.) Ramos v. Vernon, 254 Conn. 799, 845 (2000). “The degree of vagueness tolerated in a statute varies with its type . . . and laws that might infringe constitutional rights [are subjected] to the strictest [standard] of all.” Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008). Moreover, “[a] statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions, nor is it necessary that a statute list the exact conduct prohibited . . . The constitution requires no more than a reasonable degree of certainty.” (Citations omitted.) Packer v. Bd. of Educ., 246 Conn. 89, 101 (1998). The Gifford court noted that “[the Connecticut] legislature deliberately chose a probable cause standard rather than a preponderance of the evidence standard.” Gifford, 2019 WL 3526461, at *9; see 60 H.R. Proc., pt. 16, p. 336, remarks of Representative William Tong (“Probable cause in Connecticut is used in our civil law statutes, most often in the pre-judgment remedy context.”). Under the probable cause standard, “[t]he plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim.” (Internal quotation marks omitted.) William Beazley Co. v. Bus. Park Assocs., Inc., 34 Conn.App. 801, 805 (1994). “Proof of probable cause as a condition of obtaining a pre-judgment remedy is not as demanding as proof by a fair preponderance of the evidence. The legal idea of probable cause is a bona fide belief in the existence of facts essential under the law for the action and as such would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” (Internal quotation marks omitted.) Ledgebrook Condo. Assn. v. Lusk Corp., 172 Conn. 577, 584 (1977). The Connecticut Supreme Court has consistently rejected claims that the probable cause standard is unconstitutionally vague. Gifford, 2019 WL 3526461, at *10; see, e.g., Calfee v. Usman, 224 Conn. 29, 37–38 (1992) (“The defendant has cited no case, nor has our research uncovered any, in which the [U.S. Supreme Court] or this court has found a probable cause standard to be unconstitutionally vague on the ground that such a standard necessarily requires an inquiry into probabilities”). “The validity of a probable cause standard has regularly been upheld in the criminal law context.” Id., 38.
Consideration of Anti-SLAPP Statutes Before the Federal Courts
The federal courts have considered the validity and enforceability of state anti-SLAPP statutes substantively. Although the federal court appear willing to apply an anti-SLAPP statute to a case brought before it in diversity, there may be additional hurdles where the lawsuit is brought under the federal law. In addition, there may be conflict between the Federal Rules and the state statutes with respect to procedural issues in which the federal courts will apply their own procedural requirements rather than strictly follow the procedural requirement of the state law.
1. Willingness to Consider State Anti-SLAPP Statutes at the Federal Level
Some federal courts hold that state anti-SLAPP statutes can be applied and analyzed at the federal level. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014), certified question answered, 133 Nev. 512, 402 P.3d 665 (2017); Godin v. Schencks, 629 F.3d 79, 91–92 (1st Cir.2010); Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164, 168–69 (5th Cir.2009); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972–73 (9th Cir.1999); cf. Makaeff v. Trump Univ., LLC, 715 F.3d 254, 276 (9th Cir.2013) (Paez, J., concurring). In Hanna v. Plumer, the court considered the standard for determining whether a state law is substantive under Erie:
[W]hen a federal court sitting in a diversity case is faced with a question of whether or not to apply state law, the importance of a state rule is indeed relevant, but only in the context of asking whether application of the rule would make so important a difference to the character or result of the litigation that failure to enforce it would unfairly discriminate against citizens of the forum State, or whether application of the rule would have so important an effect upon the fortunes of one or both of the litigants that failure to enforce it would be likely to cause a plaintiff to choose the federal court.
380 U.S. 460 (1965). In Liberty Synergistics Inc. v. Microflo Ltd., however, the Second Circuit failed to rule on whether the California anti-SLAPP statute is substantive under Erie. 718 F.3d 138, 143 (2d Cir. 2013) (“[W]e are able to review the District Court’s order with respect to the anti-SLAPP issue without addressing the District Court’s decision that New York law governs the malicious prosecution claim [because] the question raised in this appeal presents an important issue completely separate from the merits of the action.”).
“[A] federal court exercising diversity jurisdiction must apply the choice-of-law rules of the state in which that court sits to determine the rules of decision that would apply if the suit were brought in state court.” Id., 151. When a diversity action is moved from one federal court to another, however, “the transferee court must apply the choice-of-law rules of the state in which [the] transferor court sits.” In re Gawker Media LLC, 571 B.R. 612 (Bankr. S.D.N.Y. 2017) (citing Ferens v. John Deere Co., 494 U.S. 516, 530–31 (1990); Van Dusen v. Barrack, 376 U.S. 612, 638–39 (1964)).
However, some courts have refused to apply anti-SLAPP statutes to exclusively federal claims. See Yeshiva Chofetz Chaim Radin, Inc. v. Vill. of New Hempstead, 98 F.Supp.2d 347, 360 (S.D.N.Y.2000) (“There is no reason why a federal claim, brought in a federal court for an alleged violation of the plaintiffs’ federal statutory or constitutional rights, should be subjected to different standards of pleading or proof than are called for under the Federal Rules.”); see also U.S. ex rel. Newsham, 190 F.3d at 963 (noting that, except for the Fifth and Ninth Circuits, “[t]he general tendency of the federal courts is to consider such statutes to be procedural in nature and thus not applicable in federal courts”); South Middlesex Opportunity Council, Inc. v. Town of Framingham, 2008 WL 4595369, at *8–9 (D.Mass. Sept. 30, 2008) (analyzing the application of state anti-SLAPP laws to federal questions).
2. Application of State Anti-SLAPP Statutes Before the Second Circuit
The Second Circuit Court of Appeals has been willing to grant an anti-SLAPP motion when the conduct at issue is protected. See Adelson, 774 F.3d at 803. The Second Circuit has also been willing to grant reasonable attorneys’ fees and enforce mandatory fee shifting. See Id. at 803 (applying Nev.Rev.Stat. § 41.650 (2013) and finding the provisions “unproblematic” under federal law); Cotton v. Slone, 4 F.3d 176, 180 (2d Cir.1993) (“Attorney’s fees mandated by state statute are available when a federal court sits in diversity.”).
The Second Circuit Court, however, has denied anti-SLAPP motions to dismiss when the plaintiff’s claim is not meritless or the defendant’s conduct or statements were not protected under the respective statute. See Adelson, 774 F.3d at 810 (recognizing that anti-SLAPP statutes, such as Nevada’s, are “not limited [only] to communications to a government agency”).
Other circuit courts have refused to consider state statutes or apply anti-discovery provisions. See, e.g., Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 845–46 (9th Cir.2001) (holding that California’s limits on discovery are not to be applied federally because they conflict with discovery-permitting aspects of Federal Rule 56); Hilton v. Hallmark Cards, 599 F.3d 894, 900–01 (9th Cir. 2010) (“[S]uch a state norm cannot apply to a federal cause of action, since doing so would frustrate substantive federal rights and violate the Supremacy Clause.”); Doctor’s Data, Inc. v. Barrett, No. 10-cv-03795, 2011 WL 5903508, at *2 (N.D. Ill. Nov. 22, 2011).
The Second Circuit Court is also willing to deny a motion to dismiss over procedural issues. See Liberty Synergistics, 718 F.3d at 143 (denying the anti-SLAPP motion because it was brought under California’s statute and the case was transferred to New York).
In some circumstances, the Second Circuit has failed to exercise appellate jurisdiction in considering a lower court’s decision on an anti-SLAPP special motion to dismiss. See Ernst v. Carrigan, 814 F.3d 116, 117 (2d Cir. 2016) (holding that the Vermont district court’s ruling on the merits of special motions to strike under the anti-SLAPP statute did not fall within the collateral order doctrine). The Court in Carrigan held that “[a]n appeal from an order passing on the merits of a special motion to strike filed under Vermont’s anti-SLAPP statute does not fulfill the second requirement for an appealable collateral order: that it will ‘resolve an important issue completely separate from the merits of the action.’” Id. at 119. “An issue is ‘completely separate from the merits’ if it is ‘significantly different’ and ‘conceptually distinct’ from the ‘fact-related legal issues that likely underlie the plaintiff’s claim on the merits.’” Id. (quoting Johnson v. Jones, 515 U.S. 304, 314 (1995)). In considering anti-SLAPP special motions, “[c]ourts necessarily evaluate in detail the merits of a plaintiff’s claim.” Id. 119–20 (noting, for example, that Vermont’s anti-SLAPP statute “instructs the court to consider the ‘pleadings and supporting and opposing affidavits’ when weighing whether the plaintiff has shown that the defendant’s conduct or statement was ‘devoid of any reasonable factual support’ or ‘any arguable basis in law’ and ‘caused actual injury to the plaintiff’ and “[s]uch analysis is entangled in the facts, and plainly is not ‘completely separate from the merits’ of a plaintiff’s action”) (Internal citations omitted). But see id., 120–21 (recognizing that other courts, including the Ninth Circuit, have “held the separability condition was met because an order denying an anti-SLAPP motion ‘merely finds that such merits may exist, without evaluating whether the plaintiff’s claim will succeed’”) (Internal citations omitted).
In Liberty Synergistics, however, the court found that the order satisfied the separability requirement because the “legal question presented in th[e] appeal—namely, whether the forum transfer made the anti-SLAPP rule inapplicable”—was “predicated on a source of law that did not apply to the suit.” 718 F.3d at 149, 151 (specifically noting, however, the operative distinction in this case).
Conclusion
Connecticut’s anti-SLAPP statute is a useful tool in protecting defendants from lawsuits which seek tort damages designed to discourage individuals from exercising their constitutionally protected rights, such as communicating with police and officials, the right to free speech and association. The Connecticut antiSLAPP statute can be utilized when a defendant is presented with a lawsuit for which the conduct at issue arises from the defendant’s exercise of those rights. Defense counsel should be prepared to promptly file a motion to dismiss and prosecute the motion as a means of obtaining a favorable disposition which avoids unnecessary defense costs and a trial involving the presentation of evidence on an otherwise meritless claim. The additional benefits to defendants include: the limitations on discovery and amendments to the complaint during the court’s consideration of the motion; the opportunity for the prevailing party to seek an award of costs and reasonable attorney’s fees ; the expedited process for obtaining a ruling thereon; and the burden shifting two-prong analysis which shifts the burden to the plaintiff to demonstrate that it will prevail taking into account the defenses to the claims.
