Nevada's NEW Anti-SLAPP Statute
Nevada’s Anti-SLAPP statute, codified as NRS 41.635-70, recently received a much-needed revision. The new law takes effect on October 1, 2013 and features a number of improvements for Nevada’s existing Anti-SLAPP statutes. The following is an explanation of the new statute.
Activities Covered by the Nevada Anti-SLAPP statute
Under Nevada’s Anti-SLAPP statutes, a defendant may file a special motion to dismiss if an action is brought against a person in furtherance of the right to petition. N.R.S. 41.660(1). The revision effective October 1, 2013adds a fourth definition for the expanded types of protected conduct, which includes any “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum," so long as the statement is truthful or made without knowledge of falsehood.
Rather than being restricted to protecting speech concerning matters under government consideration, Nevada’s Anti-SLAPP statutes now cover speech about all matters of public interest, so long as they are truthful (or not knowingly false) and made in a public forum. As a result, speech protected under the updated Anti-SLAPP statutes 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;
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; or
Communication made in direct connection with an issue of public interest in a place open to the public or in a public forum, which is truthful or is made without knowledge of its falsehood.
NRS. 41.637(1). Speech that has been the basis of successful Anti-SLAPP motions in Nevada includes:
· 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).
Additionally, Nevada’s updated Anti-SLAPP statutes immunize a movant not just from liability, but from suit. This means that a denied Anti-SLAPP motion is immediately appealable. In the past, a trial court’s denial of an Anti-SLAPP motion meant that its denial could not be appealed until the case was completed. Now, however, an unsuccessful movant does not need to stand trial before appealing the denial of an Anti-SLAPP motion.
How to use the Nevada Anti-SLAPP Statute
If a SLAPP suit is filed against you, you may file a special motion to dismiss the complaint. Additionally, the attorney general or chief legal officer of a 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 60 days of being served with the plaintiff’s complaint.
Once filed, the special motion to dismiss is analyzed as a motion for summary judgment, where evidence is permitted and a dismissal of the case operates as an adjudication on the merits. However, once a special motion to dismiss is filed, all discovery in the case is stayed.
A judge will rule on the motion within 7 days of it being served on the plaintiff. If the motion is denied, the movant may request an immediate appeal from the Nevada Supreme Court. Nev. Rev. Stat. 41.670(4).
What Happens If You Are a Movant Prevailing on a Special Motion to Dismiss
If your Anti-SLAPP motion is 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 representation. The court may also discretionarily award a successful movant up to $10,000 in addition the movant’s to reasonable costs and attorney’s fees. A successful movant person may also bring a separate action against the person who filed a SLAPP suit to recover compensatory damages, punitive damages, and the attorney’s fees and costs accrued in the separate action. NRS 41.670.
The separate cause of action for prevailing on an Anti-SLAPP motion is akin to a claim for malicious prosecution and unique to Nevada. The update to Nevada’s Anti-SLAPP laws kept this cause of action so that plaintiffs who file SLAPP suits not only have their suit dismissed, but may be sued as well. As a result, defendants who file successful Anti-SLAPP motions recover their attorneys’ fees and costs in dismissing the action against them, but they may also pursue the censorious plaintiff with their own claim that expressly authorizes a wide range of costly damages.
What Happens If You Are a Non-Moving Party Prevailing on a Special Motion to Dismiss
Nevada law provides that if a court denies a special motion to dismiss, the court must award the successful claimant his or her costs and reasonable attorneys’ fees (and up to $10,000) upon a finding that the anti-SLAPP motion was “frivolous or vexatious." NRS 41.670(2). This prevents frivolous anti-SLAPP motions from becoming a burden on the courts and potentially leading to their repeal due to abuse by a destructive minority of filers. This does NOT mean that you have to pay if you merely lose - the motion must be deemed to be "frivolous" or "vexatious."