From the state “where the wind comes sweepin’ down the plain” comes an appellate decision that might seem familiar to readers of this blog.
In March 2013, three Oklahoma plaintiffs filed suit against a media entity, alleging that certain news reports were false and defamatory. The statements were made before Oklahoma’s anti-SLAPP statute went into effect. After the statute’s effective date, the defendants moved to dismiss the suit under the then-new anti-SLAPP statute.
As readers of this blog know, a similar fact pattern occurred in the infancy of the DC anti-SLAPP statute. In Lehan v. Fox, the plaintiff alleged that statements made in a January 2011 television broadcast were false and defamatory. At the time the statements were made, the DC anti-SLAPP statute was not in effect. (The statute went into effect in March 2011, and Lehan filed his suit in June 2011). In response to the defendants’ anti-SLAPP motion, Lehan argued that the statute was “substantive in nature and effect” by, among other things, changing the burden of proof and providing for an award of attorneys’ fees, and thus could not apply to statements made before its effective date. The DC Superior Court disagreed, however, and granted the anti-SLAPP motion:
my finding is that the burden of proof on the Plaintiff does not change. It simply is accelerated a little bit, in part. So, that instead of having to actually provide preponderance of the evidence proof, he has to show early on that he is likely to be able to do so. That is not a substantive change in his burden of proof. It does not add anything that he will have to do. It simply changes the timing of when he has to do it. He has to do a little bit of it now. He has to show likelihood, that he is likely to get there and then he actually has to get there. In the Court’s view, it does not change the substance of the law. The statute then applies.
The result was different in Oklahoma. There, after the trial court denied the defendants’ anti-SLAPP motion, an Oklahoma intermediate appellate court affirmed the denial, holding that the statute affected substantive rights by essentially providing immunity from suit for certain causes of action and by providing for the mandatory recovery of fees and costs by a successful movant. These provisions, the court held, meant that the statute could not be applied retroactively.
Obviously the question of whether a “new” anti-SLAPP statute applies “retroactively” ceases with the passage of time. That being said, given the ongoing effort to pass a federal anti-SLAPP statute, and with several states considering whether to enact, or expand, their anti-SLAPP statutes, it might not be the last time this issue comes up.