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Recent federal case in GA clarifies pleading standard in some anti-SLAPP claims

In recent posts, we’ve been looking at the topic of SLAPP litigation, which is often aimed at those who work in environmental advocacy and those who simply take steps to protect their own environmental rights. As we noted last time, Georgia’s anti-SLAPP law applies in both state and federal court.

The benefit of Georgia’s anti-SLAPP law, as with protections offered by other states, is that it allows defendants to SLAPP claims to have these claims quickly dismissed. Defendants are required to meet the initial burden of showing that the plaintiff’s claim arises from the defendant’s right of petition or free speech. If that burden can be met, the plaintiff is then required to show there is a “probability” that he or she would prevail on the claim.  

One of the issues with Georgia’s anti-SLAPP law, and others like it, is that when the law is invoked in federal court, there is a clash between the “probability” standard required under Georgia law and the standard prescribed by the Federal Rules of Civil Procedure, which is “plausibility.” The two standards are not the same, as probability is a heightened standard.

This can become an issue in certain types of federal cases: specifically, those in which the basis for federal jurisdiction is that each party is from a different. The issue in these cases is whether the pleading standard for anti-SLAPP claims is should be that of the anti-SLAPP statute or the standard under the Federal Rules of Civil Procedure.

In a recent decision, the United States District Court for the Northern District of Georgia said the latter standard is applied in anti-SLAPP cases. In effect, this means that plaintiffs in SLAPP actions in federal diversity cases have a lower pleading standard, and it is harder for defendants to have these cases dismissed.

In any SLAPP-related litigation, it is important to work with an experienced attorney, not only to ensure one has guidance and advocacy in building the strongest possible case, but also to help ensure the success of the speech, public debate or other activity that gave rise to the SLAPP claim.

Source: Forbes, “Are Anti-‘SLAPP’ Statutes Toothless In Federal Courts?,” Cory L. Andrews, Feb. 24, 2017. 

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