NOTE: As of October 1, 2013, Nevada has a new Anti-SLAPP law, which renders this guide out of date.
Activities Covered by the Nevada Anti-SLAPP statute
According to the language of Nevada’s Anti-SLAPP statute, a defendant may file a special motion to dismiss “if an action is brought against a person based upon a good faith communication in furtherance of the right to petition.” N.R.S. 41.660(1). One case, John v. Douglas County School District, 219 P.3d 1276 (2009), found that the Nevada statute should be construed just as the California statute, upon which it was based. However, in Metabolic Research v. Ferrell, D.C. No. 2:09-cv-02453 (D. Nev. 2009), the U.S. District Court for Nevada determined that the statute only protects those citizens who are engaging in the right to petition—and only when petitioning a government official. This narrow interpretation of Nevada’s Anti-SLAPP statute has not yet been challenged, as the appeal focused primarily on the Anti-SLAPP statute’s procedural applications.`
According to John v. Douglas County School District, Nevada’s anti-SLAPP statute bars claims from people who attempt to abuse other citizen’s rights who attempt to petition the government and allows for claims against citizens who do not petition the government in good faith. The purpose is to prevent citizens from being the subject of costly litigation in an attempt to abridge their right to free speech under both the Nevada and U.S. Constitutions. John, 219 P.3d at 1282. A “good faith communication” includes:
- Communication that is aimed at procuring any governmental or electoral action, result or outcome;
- Communication of information or a complaint to a Legislator, officer or employee of the Federal Government, this state or a political subdivision of this state, regarding a matter reasonably of concern to the respective governmental entity; or,
- Written or oral statement made in direct connection with an issue under consideration by a legislative, executive or judicial body, or any other official proceeding authorized by law, which is truthful or is made without knowledge of its falsehood. Nev. R. Stat. 41.637
The types of suits that have been successfully dismissed under Nevada’s Anti-SLAPP statute are:
- Statements by public utility board members who discussed the viability of a contract. Rebel Communications, LLC v. Virgin Valley Water Dist., 2012 WL 934301, 2012 U.S. Dist. LEXIS 37253 (D. Nev. 2012).
- State litigation, an advisory opinion from the Financial Institutions Division, and a complaint filed with the Financial Institutions Division were “good faith communications. Nevada Association Services v. Premsirut, Case No. A-11-637300-C, 2011 WL 7803899 (Aug. 24, 2011).
- A complaint made about an employee of a political subdivision, (a school district in Nevada), and an article published in a school newspaper Archey v. Nelson, Case No. 35671, 2010 WL 3711513 (Aug. 10, 2010).
How to use the Nevada Anti-SLAPP Statute
If a SLAPP suit is filed against you, you may request a special motion to dismiss the complaint. Additionally, the attorney general or chief legal officer of the political subdivision of the state may defend the person against whom the suit has been filed. If you are served with what you believe to be a SLAPP suit, you should seek legal assistance immediately in order to maneuver the complicated legal process and to avoid missing critical deadlines. The special motion to dismiss must be filed within sixty (60) days of service of the complaint. Once filed, the special motion to dismiss is considered at the summary judgment standard, and all discovery will be stayed. A judge will rule on the motion within 30 days. However, if the motion is denied, you do not have the ability to file for an interlocutory appeal. See Metabolic Research v. Ferrell, 693 F.3d 795 (9th Cir. 2012).
What Happens If You Prevail on a Special Motion to Dismiss
If you are successful, the court will award reasonable costs and attorney’s fees, unless the Attorney General, the chief legal officer or the attorney of the political subdivision provided the defense. The person may also bring a separate action to recover compensatory damages, punitive damages, and attorney’s fees and costs of bringing the separate action. Nev. Rev. Stat. 41.670.
It is important to note that Nevada’s Anti-SLAPP statute is a “free from judgment” statute, not a “free from litigation” statute. The Ninth Circuit recently interpreted the statute in a similar way as California’s statute, stating that those who prevail on an anti-SLAPP motion are immune from civil liability, but are not immune from a lawsuit. Metabolic Research, 693 F.3d at 802. Those defendants facing litigation can request fees and costs at the conclusion of the case. Id.