The Nevada Supreme Court’s Recent Treatment
of Nevada’s Anti-SLAPP Laws Shows That
Preparation And Thoroughness Is Required To
Use Them Effectively
-By J. Malcolm DeVoy and Erica A. Bobak
In the early 1990’s, California and Nevada passed laws designed to help individuals and the media avoid the burdens of litigation when sued by business magnates, politicians, and others who believed—rightly or wrongly—that wealth and influence provided immunity from criticism. This species of lawsuit, normally based on claims of defamation, came to be known as strategic litigation against public participation, or “SLAPP” suits. As a remedy, California and Nevada’s laws, commonly known as Anti-SLAPP laws (or, in California’s case, the Anti-SLAPP statute ) were designed to provide a speedy and cost-effective way to not only terminate, but discourage SLAPP suits: a successful Anti-SLAPP motion would result in the plaintiff paying the defendants’ attorney’s fees and costs.
Although similar and substance and purpose, the California and Nevada’s Anti-SLAPP provisions took diverging paths during the first twenty or so years of their existence. Nevada’s Anti-SLAPP laws applied only to speech made to the government to seek specific action, and was infrequently used. The circumstances in which it could apply were very narrow. In contrast, California’s Anti-SLAPP statute covered a broad range of subjects that were of the public interest and made in a public forum, and spawned a robust body of precedent. In 2013, the Nevada Legislature amended Nevada’s Anti-SLAPP laws to accommodate the protections for public speech that California had provided for nearly two decades, and the two states achieved a rough parity in the scope of their Anti-SLAPP provisions.
Whatever the Nevada Legislature and proponents of Nevada’s broadened Anti-SLAPP laws might have desired, though, the Nevada Supreme Court has repeatedly grounded Anti-SLAPP motions. The Nevada Supreme Court’s precedent reveals a court attempting to strike a balance between lofty goals of free speech and civic engagement, and the reality that the existence of Anti-SLAPP laws dissuade potential litigants from pursuing legitimate claims. This careful balance is necessary, as prioritization of the constitutional right of free speech at the expense of the co-equal right to a trial by jury led the Washington Supreme Court to declare that state’s Anti-SLAPP law unconstitutional in 2015.
The Mechanics of an Anti-SLAPP Motion in Nevada
Nevada’s Anti-SLAPP laws, found at NRS 41.635-670, were last amended in 2015. The purpose of these laws is to provide defendants not only with protection from costly litigation, but a relatively quick, two-step method to obtain an early dismissal of lawsuits based on their exercise of First Amendment rights. Under the Anti-SLAPP laws, if an action is brought based upon a good faith communication “in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern” the defendant may file a special motion to dismiss within 60 days.
The special motion to dismiss is a “procedural mechanism to prevent wasteful and abusive litigation by requiring the plaintiff to make an initial showing of merit.” Upon filing the special motion to dismiss, the court must first determine whether the defendant has met the initial burden of showing, by a preponderance of the evidence, that the lawsuit is based upon a good faith communication in furtherance of the right to petition. Once this first element is satisfied, the burden shifts to the plaintiff, who must then show with prima facie evidence a “probability of prevailing on the claim.” If the plaintiff fails to meet this burden, the claims are dismissed, with a mandatory award of attorneys’ fees to the moving party, and up to an additional $10,000 awarded to the movant as a deterrent against future SLAPP suits.
The Recent Legislative History of Anti-SLAPP Motions and Their Standard of Review
The 2013 amendments to Nevada’s Anti-SLAPP laws completely changed the plaintiff’s burden of proof for surviving an Anti-SLAPP motion. In addition to broadening the circumstances where the Anti-SLAPP laws could be used, the amendment required the plaintiff to show by clear and convincing evidence that it had a likelihood of succeeding on its claims in order to defeat an Anti-SLAPP Motion. The standard for Anti-SLAPP motions in Nevada had never been so favorable, and Nevada’s Anti-SLAPP laws arguably led the country as being the most aggressive and favorable to movants.
This legal standard, requiring the plaintiff to prove its claims at the outset of litigation by the highest civil burden of proof, was short-lived. The Nevada Legislature again amended the Anti-SLAPP Laws in 2015 by passing Senate Bill 444, bringing NRS 41.660 in line with California’s Anti-SLAPP statute in terms of its burden of proof. The 2015 amendment decreased the plaintiff’s burden, requiring the plaintiff only to show prima facie evidence in support of its claims. As a result, akin to California law, Nevada Anti-SLAPP motions are evaluated as if they are motions for summary judgment, and granted where there are no issues of material fact. Finally, in the 2017 legislative session, the Anti-SLAPP statute was left unchanged, leaving lawyers and courts to digest the previous amendments.
The Nevada Supreme Court Takes Litigants, Attorneys, and Courts to Task in Properly Applying Nevada’s Anti-SLAPP Laws
Free speech advocates believed that a new dawn had broken with Nevada’s 2013 amendment of its Anti-SLAPP laws. As Anti-SLAPP motions worked their way through the district and appellate courts, though, it became clear that judicial application of the statutes required more scrutiny than rhetoric. Since 2017, the result has been a raft of decisions requiring parties and district courts to conduct more thorough analysis in their attempts to use Nevada’s Anti-SLAPP Statutes.
The 2013 amendments to the Nevada Anti-SLAPP laws received in-depth analysis in 2017, after they had been superseded by the 2015 amendments in Shapiro v. Welt. The Shapiro court that Anti-SLAPP motions brought under the Anti-SLAPP laws that existed from 2013 through 2015 were evaluated on appeal for abuse of discretion. This standard, however, could only be applied retroactively, and to appeals of Anti-SLAPP motions filed after the 2013 amendments, but before the 2015 amendments that altered the movant’s burden. While this decision would affect cases potentially pending on appeal, it had no applicability to the standard of proof that had been amended into Nevada’s Anti-SLAPP laws nearly two years prior.
As a more lasting impact of Shapiro, the Nevada Supreme Court adopted the California test articulated in Piping Rock Partners, Inc. v. David Lerner Assocs., Inc. in determining whether an issue is of public interest. The Shapiro court required that district courts must determine whether the statements at issue in the litigation are a matter of public interest; if so, the court must then consider whether such communication was made in a place open to the public, and whether it was truthful or made without knowledge of falsehood, prior to granting an Anti-SLAPP motion. Finding that the district court did not apply these principles in reaching its decision on the underlying Anti-SLAPP motion, the Nevada Supreme Court remanded the case for further proceedings.
Since Shapiro, the Nevada Supreme Court has not published a single opinion affirming the grant of an Anti-SLAPP Motion. In 2018, the Supreme Court’s decision in Patin v. Ton Vinh Lee held that a statement by an attorney on her firm’s website summarizing a jury’s verdict, which was the subject of a claim for defamation, did not constitute a matter of public interest. The defendant attorney argued that the statement was made in connection with a proceeding before a judicial body, but the Supreme Court disagreed. Affirming the district court’s denial of the Anti-SLAPP motion, the Supreme Court found that the statements at issue were not sufficiently related to legal proceedings to be in “direct connection” with an issue under consideration by a judicial body and qualify for protection under Nevada’s Anti-SLAPP laws.
Finally, as one of the Nevada Supreme Court’s first published opinions of 2019, it once again affirmed a district court’s denial of an Anti-SLAPP motion in Coker v. Sassone. Most significantly, Coker clarified that under the 2015 amendments to the Anti-SLAPP laws, Anti-SLAPP motions are reviewed on a de novo basis, as if they were motions for summary judgment. Previously, such motions were reviewed for abuse of discretion, a standard more deferential to the district court’s findings and rulings. In addition to once again affirming the denial of an Anti-SLAPP motion, the Supreme Court confirmed that such motions were to be evaluated on the same basis they were before Shapiro, and to be granted—and affirmed—only where the movant can show the absence of any genuine issue of material fact preventing it from being entitled to judgment as a matter of law.
While activists’ cri de couer for free speech and the lofty goals of protecting an engaged public were enough to significantly broaden the reach of Nevada’s Anti-SLAPP laws in 2013, these sentiments have not translated into successful Anti-SLAPP motions, or reversing their denials by district courts. Because of their ability to stay discovery while a motion is pending and shift fees to a successful movant, Anti-SLAPP motions remain a valuable tool available to litigators when cases touch upon issues of public expression and even an arguable public interest. The Nevada Supreme Court has made clear, however, that the care taken in bringing such a motion must be the same as a motion for summary judgment, and there can be no question as to the propriety of granting relief to a movant in vindication of its first amendment rights, at the expense of the non-movant’s rights under the
- J. Malcolm (“Jay”) DeVoy is the owner of DeVoy Law P.C., and Erica A. Bobak is an associate attorney with the firm, joining upon completing her clerkship for Department 30 of the Eighth Judicial District Court. DeVoy Law focuses on providing representation to clients in significant business disputes, serious personal matters, and advising medical professionals and practices about issues including licensure, HIPAA, Stark Law, and the Anti-Kickback Statute.
- California Code of Civil Procedure § 425.16.
iii. See Cal. Code of Civ. P. § 425.16(c); NRS 41.670.
- Davis v. Cox, 183 Wn. 269, 351 P.3d 862 (2015). Notably, the Nevada Supreme Court has not considered whether Nevada’s Anti-SLAPP laws violate litigants’ rights to trial by jury, and has only declared the Nevada Anti-SLAPP Laws constitutional on the narrow basis on whether they are impermissibly vague. Shapiro v. Welt, 133 Nev. 35, 37-38, 389 P.3d 262, 267 (2017).
- NRS 41.660.
- NRS 41.660(2).
vii. John v. Douglas Cty. Sch. Dist., 125 Nev. 746, 758, 219 P.3d 1276, 1284 (2009).
viii. NRS 41.660(3)(a).
- NRS 41.660(3)(b).
- NRS 41.660(3), NRS 41.670.
- Coker v. Sassone, 135 Nev. Adv. Op. 2, 432 P.3d 746 (2019).
xii. 133 Nev. 35, 389 P.3d 262.
xiii. 946 F. Supp. 2d 957, 958 (N. D. Cal. 2013), aff’d 609 F. App’x 497 (9th Cir. 2015).
xiv. 133 Nev. at 40, 389 P.3d at 268.
xvi. 134 Nev. Adv. Op. 87, 429 P.3d 1248, 1249 (2018).
xvii. Id. at 1252.
xviii. 432 P.3d 746 (2019).
- Id., citing Shapiro, 133 Nev. at 37, 389 P.3d at 266.
xxi. Coker, 432 P.3d 746; see John, 125 Nev. 753-54, 219 P.3d 1276, 1281-82.
xxii. NRS 41.660-670.