Early this year, a California Court of Appeal issued a pivotal ruling under California's "anti-SLAPP" statute, which addresses Strategic Lawsuits Against Public Participation (SLAPP).

California's anti-SLAPP statute (Section 426.12 of the California Code of Civil Procedure (West supp. 2000), states in pertinent part:

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b)  (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. . . .

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(e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or 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 or an issue of public interest.

Other states

An estimated 14 states have anti-SLAPP statutes, and this type of legislation is under consideration in 20 other jurisdictions as well. Many of these statutes are similar to California's. In addition, recent Ninth Circuit case authority holds that anti-SLAPP statutes may be used to dispose of SLAPP litigation in federal courts. See United States v. Lockheed Missiles and Space Co., 190 F.3d 963 (9th Cir. 1999).

Legislation and case law that address SLAPP suits are relatively new. The area should be closely monitored by defense counsel, however, because anti-SLAPP statutes can provide their clients with a cost-effective means to summarily dispose of litigation at a very early stage. And many statutes provide for an attorneys' fees award to the prevailing defendant.

In California, as in many other jurisdictions, to invoke the anti-SLAPP statute's protection, the defendant must file a "special motion to strike" and show that the lawsuit results from conduct protected by the statutory scheme. The conduct generally includes an exercise of petition rights, or speech or conduct that relates to a matter of public interest. The party pursuing the lawsuit must then show, though the presentation of competent evidence, that he has a "probability of success" on the merits of the claim. If the party pursuing the lawsuit cannot carry that burden, the court will dismiss the lawsuit, and is required to award reasonable attorneys' fees and costs to the prevailing defendant.

In 1998, California's statute was amended to include a statement that it "shall be construed broadly." In 1999, the statute was further amended to provide an immediate right to appeal the denial of a special motion to strike filed under the statute.

Effect of new case

DuPont Merck Pharmaceutical Co. v. Superior Court, 78 Cal.App.4th 562, 92 Cal.Rptr. 2d 755 (2000), may prompt a shift in the way that California's anti-SLAPP statute is viewed and may force an examination of how much protection should be afforded to commercial speech in California. What follows from the DuPont decision, whether it be case law, new legislation, or sentiment toward anti-SLAPP statutes, may have implications in other states where such legislation exists or is proposed.

DuPont, a major pharmaceutical manufacturer, attempted to use California's anti-SLAPP statute to dispose of a class action lawsuit filed by purchasers of a prescription blood-thinner. The plaintiffs alleged that DuPont wrongfully prevented FDA approval of the medication in generic form, published false information regarding the drug and generic forms of the drug, aggressively marketed its product to doctors, attempted to delay approval of the drug in generic form by filing petitions with the FDA, and pursued state legislation to increase the requirements for substituting generic forms of the medication for DuPont's brand name product.

The trial court denied the special motion to strike. DuPont filed an appeal, which is permitted under a 1999 amendment to the anti-SLAPP statute. In reviewing the case, the appellate court distilled the charges made in the lawsuit into two categories: "(1) lobbying and other activities seeking to influence the decisions of regulatory and legislative bodies and (2) advertising, marketing, and public relations activities directed at the medical profession and the general public."

The court determined that the lobbying activities for which DuPont was sued were protected under the anti-SLAPP statute, since those activities qualified as First Amendment "petition" conduct. The court also determined that the commercial speech that gave rise to the lawsuit – that is, DuPont's marketing activity – was also entitled to protection under the anti-SLAPP statute because that speech related to a matter of "public interest."

Following this decision, the appellate court returned the case to the trial court for consideration of whether the plaintiffs could show that they had a "probability" of success on the merits of the claim.

Now there's controversy

The DuPont decision has created some controversy and will likely spark legislation to address the application of anti-SLAPP statutes in the context of commercial speech-related lawsuits. Legislation may also be pursued in states with similar legislation to address the issue before it reaches the courts.

The issue of whether commercial speech should be protected is particularly relevant in the context of the advertising and marketing of products that require FDA or other regulatory approval, as was the case in DuPont. Arguably, any product that requires such approval concerns the public interest, so speech related to the product would also involve a matter of public interest. Also worth considering is that a lawsuit, the focus of which is commercial speech, will still survive a special motion to strike if there is "probability" that the claim will succeed on the merits. However, is a lawsuit based on commercial speech – speech which is entirely profit-driven – the type of lawsuit which should have to overcome the hurdle of a special motion to strike?

The issues raised by DuPont should be carefully considered in light of the broad First Amendment policy objectives that drive anti-SLAPP legislation and other First Amendment legislation and case authority. Pragmatically speaking, if anti-SLAPP statutes are used to reach results that are deemed "absurd," a backlash may occur against adopting anti-SLAPP legislation – a result that will be a major setback to First Amendment protections.

Product manufacturers and their counsel should carefully monitor DuPont and any proposed legislation that follows from it, to protect what could be a very powerful defense against consumer litigation. Anti-SLAPP statutes are no longer just for First Amendment scholars.

Ms. Edwards is an associate in Crosby Heafey's Oakland office. Her practice focuses on the defense of product liability actions and toxic tort claims. Mr.  Kohn is a director in the Oakland office. He heads the Product Liability Practice Group.

This article originally appeared in the IADC Newsletter (June, 2000, No. 4, 1999-2000).