S2616

An Act concerning certain civil actions and supplementing Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Definitions.

As used in this act:

a. “Act in furtherance of the right of advocacy on issues of public interest” means:

(1) a written or oral statement made in connection with an issue of public interest in, under consideration or review by, or that is reasonably likely to encourage or to enlist public participation in an effort to effect consideration or review by, a legislative, executive, or judicial body, or any other State or local government proceeding authorized by law;

(2) an expression or expressive conduct that involves petitioning State or local government or communicating views to members of the public in connection with an issue of public interest;

(3) any written or oral statement made or submitted in a place open to the public or a public forum in connection with an issue of public concern; or

(4) any other conduct in furtherance of the exercise of the constitutional right of free speech or right of petition in connection with an issue of public interest.

b. “Issue of public interest” means an issue related to: health or safety; environmental, economic, or community well-being; the government; a public figure; or a good, product, or service in the marketplace. “Issue of public interest” shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.

c. “Governmental entity” includes any branch, department, agency, instrumentality, official, employee, or agent of the State of New Jersey or local government of the State of New Jersey.

d. “Moving party” means a person who is the defendant in a civil action alleged to be a SLAPP lawsuit, and who is seeking dismissal of a SLAPP lawsuit.

e. “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or any other legal or commercial entity, except that the term does not include any individual or agency acting on behalf of a governmental entity.

f. “Responding party” means a person who is the plaintiff in an alleged SLAPP lawsuit and against whom a moving party has filed an application seeking dismissal of the lawsuit.

g. “SLAPP lawsuit” means a Strategic Lawsuit Against Public Participation, which is a civil action intended to deter or suppress the desire of any citizen to act in furtherance of the right of advocacy on issues of public interest. While sometimes difficult to identify, these lawsuits often take the forms of lawsuits for defamation, tortious interference with business or contract, civil conspiracy or abuse of process, constitutional or civil rights violations, or nuisance, and similar causes of action.

h. “SLAPP-back lawsuit” is a civil action in which the moving party seeks compensatory damages based on a claim such as frivolous litigation, malicious use of process, or other process authorized by law in response to a SLAPP lawsuit that has been dismissed in favor of the moving party pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) or other process authorized by the Rules of Court.

2. Effect of Signature on Pleadings in Civil Actions.

a. In addition to any requirements within the Rules of Court regarding the effect of a signature on pleadings, the signature of a party or attorney on any pleading submitted to the court in a civil action shall constitute a certification that the signatory has read the pleading and certifies that, to the best of the person’s or attorney’s knowledge, information, and belief, formed after reasonable inquiry under the circumstances, that the pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay in judicial proceedings or to cause needless increase in the cost of litigation with the purpose of suppressing another person’s act in furtherance of the right of advocacy on issues of public interest.

b. If, at any time during a civil proceeding, the court finds that a pleading was signed with willful intent to suppress a person’s act in furtherance of the right of advocacy on issues of public interest, the court may strike the pleading, dismiss the civil action, or grant other relief as provided by the Rules of Court or by law, which may include an award of reasonable attorney fees and costs to the opposing party.

3. Application to Dismiss SLAPP Lawsuit.

a. A moving party may file an application with the court seeking dismissal of a civil action on the basis that it is a SLAPP lawsuit. The application shall be filed and the pleadings served in accordance with the Rules of Court. To the extent possible, the court shall give expedited calendar preference to an application for dismissal filed under this section to promote prompt disposition of the issues raised in the application to prevent the unnecessary expense of protracted litigation.

b. Upon the filing of an application for dismissal of a SLAPP lawsuit pursuant to this section, the court shall stay all discovery and any pending proceedings in the civil action. The stay shall remain in effect until the entry of judgment on the application for dismissal. Notwithstanding a stay imposed by this subsection, the court, on request of a party for good cause shown, may order that specified discovery or other proceedings be conducted if necessary to allow the parties to meet or oppose the burden of proof established in subsection c. of this section.

For the purposes of this subsection, “good cause” shall include:

(1) whether the party seeking discovery has reasonably identified specific material held or known by the opposing party that would aid the party seeking discovery in meeting or opposing the burden of proof established in subsection c. of this section;

(2) whether the specific materials sought in discovery are available from a source other than the opposing party; and

(3) other relevant factors at the court’s discretion.

c. A moving party filing an application pursuant to subsection a. of this section has the initial burden of presenting prima facie evidence showing that the cause of action at issue arises from an act in furtherance of the right of advocacy on an issue of public interest. If the moving party meets this requirement, the burden shifts to the responding party to establish the existence of prima facie evidence that demonstrates the probability of prevailing on the cause of action, including evidence to support each essential element of the cause of action, evidence showing that the moving party’s application for dismissal based on an act in furtherance of the right of advocacy on issues of public interest is devoid of any reasonable factual support or any arguable basis of law, and evidence showing that the moving party’s acts caused actual compensable harm to the responding party.

After considering pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based, the court shall determine whether the responding party has established the existence of prima facie evidence that demonstrates the probability of prevailing on the cause of action which requires that the civil action proceed to trial. If the court finds that the responding party has met this burden, the application for dismissal shall be denied and the civil action shall proceed to trial at the discretion of the court; otherwise, the civil action shall be dismissed.

d. If the court denies an application for dismissal pursuant to this section:

(1) the fact that the determination has been made and the substance of the determination shall not be admitted into evidence at any subsequent proceeding; and

(2) the determination shall not affect the burden of proof or standard of proof that is applied during any subsequent proceeding.

e. (1) The court shall award a moving party who prevails on an application for dismissal of the SLAPP lawsuit reasonable costs of litigation and any attorney’s fees incurred in defending the SLAPP lawsuit. In addition, the court may order additional relief including sanctions against the responding party as the court deems necessary to deter repetition of comparable conduct by the responding party or others similarly situated.

(2) If the court finds that the application for dismissal of the SLAPP lawsuit was frivolous or that it was solely intended to cause unnecessary delay, the court shall award the responding party reasonable costs of litigation and attorney’s fees related to the opposition of the application for dismissal of the SLAPP lawsuit.

(3) Unless the right to judgment is waived by the moving party, reasonable attorney fees and costs in connection with the application for dismissal of the SLAPP lawsuit shall be awarded, as appropriate, notwithstanding the fact that the responding party requested the dismissal of the civil action subsequent to the filing of the moving party’s application for dismissal, but prior to the issuance of the judgment of dismissal by the court.

f. A party aggrieved by the trial court’s decision regarding an application to dismiss a civil action alleged to be a SLAPP lawsuit may appeal that decision pursuant to the Rules of Court. To the extent possible, the court shall give calendar preference to an appeal of a dismissal of a civil action determined to be a SLAPP lawsuit. In any appeal of a dismissal pursuant to this act, the court may award reasonable attorney fees and costs of litigation to the prevailing party.

4. Exemptions.

This act shall not apply to the following causes of action:

a. any civil action brought by a governmental entity to enforce any law aimed at the protection of the public safety, health or welfare;

b. a SLAPP-back lawsuit;

c. a claim brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises:

(1) is a representation of fact made for the purpose of promoting, securing, or completing sales or leases of, or commercial transactions in, the person’s goods or services; and

(2) is intended to be directed to an audience that is an actual or potential buyer or customer.

5. Potential Award of Damages through SLAPP-back Litigation.

a. The defendant in a SLAPP lawsuit may initiate an action, claim, cross-claim, or counterclaim to recover compensatory damages from the plaintiff of a SLAPP lawsuit or the plaintiff’s attorney, or both, pursuant to:

(1) the provisions of P.L.1988, c.46 (C.2A:15-59.1);

(2) the Rules of Court regarding frivolous litigation; or

(3) a civil action based on the common law tort of malicious abuse of process and relevant case law. In order to prevail in a civil action pursuant to this paragraph, the plaintiff must prove the following elements:

(a) a SLAPP lawsuit was instituted by the defendant against the plaintiff who is seeking damages under the SLAPP-back lawsuit;

(b) the SLAPP lawsuit was actuated by malice;

(d) the SLAPP lawsuit was terminated in favor of the plaintiff in the SLAPP-back lawsuit; and

(e) the plaintiff in the SLAPP-back lawsuit suffered a special grievance, specifically interference with the plaintiff’s liberty or property or severe and permanent economic damages.

b. Nothing in this act shall prevent a party from seeking compensatory damages related to a SLAPP lawsuit that was terminated in favor of a moving party through any other legal process authorized by law or the Rules of Court.

6. This act shall take effect on the first day of the fourth month following enactment and shall apply to any application for dismissal of a SLAPP lawsuit filed on or after the effective date of this act.

STATEMENT

This bill would authorize an application for a dismissal of a “Strategic Lawsuit Against Public Participation” (a “SLAPP”). “SLAPP” suits are meritless actions brought against individuals who speak out about public issues.

Section 1 of the bill defines terms, including the term “act in furtherance of the right of advocacy on issues of public interest.” This term is defined as:

(2) an expression or expressive conduct that involves petitioning State or local government or communicating views to members of the public in connection with an issue of public interest;

(3) any written or oral statement made or submitted in a place open to the public or a public forum in connection with an issue of public concern; or

(4) any other conduct in furtherance of the exercise of the constitutional right of free speech or right of petition in connection with an issue of public interest.

Section 2 of the bill provides that if, at any time during a civil proceeding, the court finds that a pleading was signed with willful intent to suppress a person’s act in furtherance of the right of advocacy on issues of public interest, the court may strike the pleading, dismiss the civil action, or grant other relief as provided by the Rules of Court or by law, which may include an award of reasonable attorney fees and costs to the opposing party.

Section 3 of the bill authorizes a specific application to seek dismissal of a SLAPP lawsuit. This section provides that, to the extent possible, the court would give expedited calendar preference to an application for dismissal filed to promote prompt disposition of the issues raised in the application to prevent the unnecessary expense of protracted litigation.

Section 3 provides that upon the filing of an application for dismissal of a SLAPP lawsuit, the court would stay all discovery and any pending proceedings in the civil action. Notwithstanding the stay, the court, on request of a party for good cause shown, may order that specified discovery or other proceedings be conducted if necessary to allow the parties to meet or oppose the burden of proof.

The bill provides that “good cause” would include:

(2) whether the specific materials sought in discovery are available from a source other than the opposing party; and

(3) other relevant factors at the court’s discretion.

Under subsection c. of section 3, a moving party filing an application seeking dismissal would have the initial burden of presenting prima facie evidence showing that the cause of action at issue arises from an act in furtherance of the right of advocacy on an issue of public interest. If the moving party meets this requirement, the burden shifts to the responding party to establish the existence of prima facie evidence that demonstrates the probability of prevailing on the cause of action, including evidence to support each essential element of the cause of action, evidence showing that the moving party’s application for dismissal based on an act in furtherance of the right of advocacy on issues of public interest is devoid of any reasonable factual support or any arguable basis of law, and evidence showing that the moving party’s acts caused actual compensable harm to the responding party.

After considering pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based, the court would determine whether the responding party has established the existence of prima facie evidence that demonstrates the probability of prevailing on the cause of action which requires that the civil action proceed to trial. If the court finds that the responding party has met this burden, the application for dismissal would be denied and the civil action would proceed to trial at the discretion of the court; otherwise, the civil action would be dismissed.

If the court denies an application for dismissal:

(1) the fact that the determination has been made and the substance of the determination could not be admitted into evidence at any subsequent proceeding; and

(2) the determination could not affect the burden of proof or standard of proof that is applied during any subsequent proceeding.

The bill provides that the court would award a moving party who prevails on an application for dismissal of the SLAPP lawsuit reasonable costs of litigation and any attorney’s fees incurred in defending the SLAPP lawsuit. In addition, the court may order additional relief including sanctions against the responding party as the court deems necessary to deter repetition of comparable conduct by the responding party or others similarly situated.

Under the bill, if the court finds that the application for dismissal of the SLAPP lawsuit was frivolous or that it was solely intended to cause unnecessary delay, the court would award the responding party reasonable costs of litigation and attorney’s fees related to the opposition of the application for dismissal of the SLAPP lawsuit.

The bill further provides that unless the right to judgment is waived by the moving party, reasonable attorney fees and costs in connection with the application for dismissal of the SLAPP lawsuit would be awarded, as appropriate, notwithstanding the fact that the responding party requested the dismissal of the civil action subsequent to the filing of the moving party’s application for dismissal, but prior to the issuance of the judgment of dismissal by the court.

The bill provides that a party aggrieved by the trial court’s decision regarding an application to dismiss a civil action alleged to be a SLAPP lawsuit may appeal that decision pursuant to the Rules of Court. To the extent possible, the court would give calendar preference to an appeal of a dismissal of a civil action determined to be a SLAPP lawsuit. The bill provides that in any appeal of a dismissal, the court may award reasonable attorney fees and costs of litigation to the prevailing party.

Section 4 provides that the bill would not be applicable to the following causes of action:

a. any civil action brought by a governmental entity to enforce any law aimed at the protection of the public safety, health or welfare;

b. a SLAPP-back lawsuit; or

c. a claim brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises:

(1) is a representation of fact made for the purpose of promoting, securing, or completing sales or leases of, or commercial transactions in, the person’s goods or services; and

(2) is intended to be directed to an audience that is an actual or potential buyer or customer.

Section 5 authorizes the defendant in a SLAPP lawsuit to file a “SLAPP-back” suit. Specifically, the defendant in a SLAPP lawsuit could initiate an action, claim, cross-claim, or counterclaim to recover compensatory damages from the plaintiff of a SLAPP lawsuit or the plaintiff’s attorney, or both, pursuant to:

(1) the provisions of P.L.1988, c.46 (C.2A:15-59.1);

(2) the Rules of Court regarding frivolous litigation; or

(3) a civil action based on the common law tort of malicious abuse of process and relevant case law. In order to prevail in such a civil action, the plaintiff must prove the following elements:

(a) a SLAPP lawsuit was instituted by the defendant against the plaintiff who is seeking damages under the SLAPP-back lawsuit;

(b) the SLAPP lawsuit was actuated by malice;

(d) the SLAPP lawsuit was terminated in favor of the plaintiff in the SLAPP-back lawsuit; and

(e) the plaintiff in the SLAPP-back lawsuit suffered a special grievance, specifically interference with the plaintiff’s liberty or property or severe and permanent economic damages.

Section 5 of the bill further provides that nothing in the act would prevent a party from seeking compensatory damages related to a SLAPP lawsuit that was terminated in favor of a moving party through any other legal process authorized by law or the Rules of Court.