New York’s New Anti-SLAPP Law Expands Protections for Defendants

On November 10, 2020, New York Governor Andrew Cuomo signed into law New York’s revised Anti Strategic Lawsuits Against Public Participation (Anti-SLAPP) law.  The new Anti-SLAPP law greatly expands the law’s scope, and provides new, powerful protections for defendants who are the subjects of so-called SLAPP lawsuits that are premised upon a defendant’s exercise of First Amendment rights.  New York’s prior Anti-SLAPP law was among the weakest in the country because it was severely limited and generally applied only to litigation arising from a public application or permit, often only in the real estate development context.  The new law brings New York to the forefront of Anti-SLAPP protections in the United States.

New York’s new Anti-SLAPP law is very similar to California’s well-known and expansive Anti-SLAPP protections.  Like its California counterpart, the New York Anti-SLAPP law has the following key components:

1. Significantly expanded scope and applicability to any action based on a “communication in a . . . public forum in connection with an issue of public interest” or “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition.”
2. The new law likewise provides that courts should construe broadly “public interest” to include anything other than a “purely private matter.”
3. A stay of discovery and all hearings, motions, and deadlines while a motion to dismiss on Anti-SLAPP grounds is pending. Before, cases progressed in the same manner as with other motions to dismiss in civil litigation, with no automatic stay of discovery or proceedings.
4. A provision that a motion to dismiss shall be granted unless the plaintiff can show “that the cause of action has a substantial basis in law” or “is supported by a substantial argument for an extension, modification, or reversal of existing law.”
5. A mandatory award of attorneys’ fees and costs to prevailing defendants. The previous law only provided that attorneys’ fees “may” be awarded.

Accordingly, both potential plaintiffs and potential defendants should be aware of the risks and opportunities presented by the newly enacted Anti-SLAPP law.  Plaintiffs must carefully evaluate the merits of any claims brought against a defendant arising from their exercise of free speech.  And defendants should be ready to take advantage of the Anti-SLAPP law’s powerful, coercive force that can bring meritless or abusive SLAPP claims to a quick and favorable resolution.  In short, the new Anti-SLAPP law gives defendants sued in relation to exercising their First Amendment rights a powerful tool to quickly and forcefully dismiss the lawsuit, and with an award of attorneys’ fees.

If you have questions about how your organization or client may be impacted by the New York Anti-SLAPP law, please contact Mark Doerr.