30 Trial Lawyer • Winter 2024 By Elizabeth Savage How do you handle a bully? Some- times, the rich and powerful use litigation to shut the little guy up — a reversal of what we’re used to seeing on either side of the “v.” Enter the antiSLAPP. The special motion to strike set forth at ORS 31.150 crops up most often as a response to a suit for defamation. In any context, an anti-SLAPP motion is a means of obtaining early dismissal of Strategic Lawsuits Against Public Participation or cases targeting protected speech and activity. ORS 31.150 has its legislative roots in protecting citizens from suits filed by real estate developers as a means of silencing further public comment against proposed developments in their communities. Among the advantages of the anti-SLAPP motion is early resolution of meritless claims—bullying lawsuits that are filed for the wrong Elizabeth Savage reason—with minimal cost to the defendant. The purpose of filing such suits is often to cost the defendant money, but once an anti-SLAPP is filed, discovery is stayed. Better yet, a prevailing defendant is entitled to their reasonable attorney fees and costs. Before you think I’ve gone too pro-defendant, consider: in SLAPP cases, the plaintiff is often a corporation, a party with superior resources or a tortfeasor. In that sense, the parties’ respective roles as plaintiff and defendant often represent a reversal from those cases that we OTLA members are used to trying — employee against employer, for example, or victim against perpetrator. The lawyer representing the defendant in an anti-SLAPP case is therefore often representing the “little guy” — the suit is designed to silence the defendant. Fighting back Consider the following example. A woman went on a first date with a man she met online. On paper, he seemed like a catch — an anesthesiologist at OHSU. But the date took a dark turn. After the date, the woman reported to the police that the man sexually assaulted her on multiple occasions over the course of the evening, and, when she attempted to leave, made a thinly veiled threat upon her life. Those allegations were set forth in an unfiled complaint, which the victim sent, through her lawyer, OTLA member Meghan Johnson, to her alleged attacker, one Dr. Andrew Davoodian. With the complaint was a cover letter (referred to hereafter as a “demand letter” for ease of reference) advising the recipient to retain an attorney and to have that attorney reach out to Johnson. The letter also advised that the complaint would be filed on a date certain. Davoodian retained counsel, who proceeded to file a preemptive complaint, in which he claimed intentional infliction of emotional distress and “civil extortion” based upon his receipt of the unfiled complaint and cover letter. In response, Johnson filed an anti-SLAPP motion, arguing that the claims targeted protected speech or activity. ORS 31.150(2) allows for a special motion to strike claims that target certain types of speech, specifically: (a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law; (b) any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law; (c) Any oral statement made or written statement or other document presented in a place open to the public or a public forum in connection with an issue of public interest; or (d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue BATTLING THE PREEMPTIVE SUIT with a Special Motion to Strike
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