Anti-SLAPP Motion to Strike

SPECIAL MOTION TO STRIKE (ANTI-SLAPP)

FILING INSTRUCTIONS AND JURISDICTION NOTES

Critical Timing — Do Not Miss These Deadlines:

WARNING: Anti-SLAPP laws are state-specific and vary significantly. In federal court, the applicability of state anti-SLAPP laws is unsettled in several circuits — some circuits apply state anti-SLAPP laws in diversity cases; others do not. Compare Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010) (applying state law) with Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659 (10th Cir. 2018) (declining to apply). Confirm applicable law before filing.

Key Benefits of Anti-SLAPP Motions:

• Mandatory early dismissal of meritless claims targeting protected speech/petition activity
• Mandatory attorneys' fees and costs to prevailing movant (in most states)
• Automatic stay of discovery upon filing (California, Texas)
• Accelerated hearing schedule

IN THE [________________________________] COURT
[________________________________] COUNTY, STATE OF [________________________________]

[________________________________],
Plaintiff,

v. Case No. [____________________]

[________________________________],
Defendant.

NOTICE OF SPECIAL MOTION TO STRIKE

(Anti-SLAPP Motion under [Applicable Statute])

TO PLAINTIFF AND ITS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on [__/__/____] at [____]:00 [a.m./p.m.], in [Courtroom / Department] [____] of the above-captioned Court, Defendant [________________________________] will and hereby does move this Court pursuant to [Cal. Code Civ. Proc. § 425.16 / Tex. Civ. Prac. & Rem. Code § 27.003 / Fla. Stat. § 768.295 / applicable statute] for an order:

1. Striking [the Complaint in its entirety / the following causes of action: [________________________________]] because they arise from Defendant's acts in furtherance of protected speech, petition, or association activities; and

2. Awarding Defendant its attorneys' fees and costs as required by [§ 425.16(c)(1) / § 27.009 / § 768.295(4) / applicable statute].

This Motion is based on this Notice, the Memorandum of Points and Authorities below, the Declaration(s) of [________________________________] filed herewith, and all pleadings and records on file in this action.

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

This lawsuit is a textbook SLAPP (Strategic Lawsuit Against Public Participation) — a meritless action filed to silence Defendant's protected speech and/or petitioning activity. Plaintiff brings this action not to vindicate any legitimate legal right, but to burden Defendant with litigation costs and chill [Defendant's / the public's] exercise of [First Amendment / free speech / petition] rights.

Defendant [________________________________] is being sued for [________________________________] — conduct that constitutes protected [speech / petition activity / association] within the meaning of [applicable statute]. Because Plaintiff cannot demonstrate a probability of prevailing on the merits, this Court should strike the [Complaint / challenged claims] and award Defendant its attorneys' fees and costs.

II. LEGAL STANDARD

A. California — CCP § 425.16 (Two-Step Analysis)

California's anti-SLAPP statute, Code of Civil Procedure § 425.16, provides that "[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 Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike." CCP § 425.16(b)(1).

Step One (Defendant's Burden): The moving defendant must show that the challenged cause of action arises from protected activity — i.e., an act in furtherance of the right of petition or free speech in connection with a public issue. Protected activities include: (1) statements in a judicial proceeding; (2) statements before a government body; (3) statements in connection with an issue under consideration by a government body; and (4) any other conduct in furtherance of free speech or petition rights in connection with a public issue. CCP § 425.16(e).

Step Two (Plaintiff's Burden): If the defendant meets Step One, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim — i.e., a prima facie showing of facts that would sustain a favorable judgment. Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (2002).*

Discovery Stay: Filing a CCP § 425.16 motion automatically stays discovery unless the court orders otherwise for good cause. CCP § 425.16(g).

Fees and Costs: If the motion is granted, the court shall award the defendant its attorneys' fees and costs. CCP § 425.16(c)(1).

B. Texas — TCPA (Tex. Civ. Prac. & Rem. Code §§ 27.001–27.011)

The Texas Citizens Participation Act (TCPA) protects the exercise of the right of free speech, the right of association, and the right to petition. Tex. Civ. Prac. & Rem. Code § 27.002.

Step One (Movant's Burden): The moving party must show by a preponderance of the evidence that the plaintiff's legal action is based on, relates to, or is in response to the movant's exercise of the right of free speech, association, or petition. § 27.005(b).

Step Two (Plaintiff's Burden): If the movant meets Step One, the burden shifts to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of the claim. § 27.005(c).

Step Three (Movant's Defenses): If plaintiff meets Step Two, the court shall dismiss the legal action if the movant establishes by a preponderance of the evidence each essential element of a valid defense. § 27.005(d).

Fees and Costs: If the motion is granted, the court must award costs, reasonable attorney's fees, other expenses, and sanctions. § 27.009.

C. Florida — Fla. Stat. § 768.295

Florida's anti-SLAPP statute prohibits lawsuits "without merit" filed because of a party's exercise of its right to peacefully assemble, to instruct its representatives, or to petition for redress of grievances before the appropriate governmental entity.

Standard: The court must award attorneys' fees and costs to the party against whom an action was filed if the court finds that the action was filed in violation of § 768.295. § 768.295(4).

D. New York — Civ. Rights Law § 76-a; CPLR § 3211(g)

New York's 2020 amendments significantly strengthened anti-SLAPP protections. A defendant in an action involving public petition or participation may file a motion to dismiss under CPLR § 3211(g). The court may award costs and reasonable attorneys' fees upon finding the action without substantial basis. N.Y. Civ. Rights Law § 70-a.

III. ARGUMENT

A. STEP ONE: The Challenged Claims Arise from Protected Activity

[Select applicable protected activity category:]

☐ Statements in a Judicial or Quasi-Judicial Proceeding: Defendant's [statements / pleadings / testimony / reports] were made [in / in connection with] a [judicial / quasi-judicial / administrative] proceeding, specifically [________________________________]. Such statements are absolutely privileged. See, e.g., Cal. Civ. Code § 47(b); Silberg v. Anderson, 50 Cal. 3d 205 (1990).*

☐ Statements Before a Government Body / Public Hearing: Defendant made statements before [________________________________], a governmental or quasi-governmental body, concerning [________________________________]. These statements fall within CCP § 425.16(e)(2)-(3).

☐ Statements in Connection with a Public Issue: Defendant made [public statements / published articles / social media posts / letters] concerning [________________________________], which is a matter of public concern because [________________________________]. CCP § 425.16(e)(4).

☐ Exercise of the Right to Petition: Defendant filed [a lawsuit / complaint / government petition] against [________________________________] concerning [________________________________], which constitutes protected petitioning activity. CCP § 425.16(e)(1)-(2).

☐ Exercise of Free Speech on a Matter of Public Concern: Defendant's [speech / publication / broadcast / online communication] addressed a matter of public concern, specifically [________________________________].

The Activity Is Protected: [Provide detailed argument explaining how Defendant's specific conduct falls within the applicable protected activity category. Cite the relevant statute and cases:]

[________________________________]
[________________________________]

B. STEP TWO: Plaintiff Cannot Establish a Probability of Prevailing

Because Defendant has satisfied Step One, the burden shifts to Plaintiff to demonstrate a probability of prevailing on each challenged claim. Plaintiff cannot carry this burden for the following reasons:

1. [First Challenged Claim — e.g., Defamation]

To prevail on a claim for [________________________________], Plaintiff must prove:
(a) [Element 1]: [________________________________]
(b) [Element 2]: [________________________________]
(c) [Element 3]: [________________________________]

Plaintiff cannot establish element(s) [____] because:
[________________________________]
[________________________________]

☐ Absolute Privilege: Defendant's statements are absolutely privileged under [Cal. Civ. Code § 47(b) / other applicable privilege], which bars Plaintiff's claim entirely.

☐ Qualified Privilege: Defendant's statements are protected by a qualified privilege because [________________________________], and Plaintiff cannot establish that Defendant acted with malice.

☐ Truth: Defendant's statements were true. "Truth is an absolute defense to defamation." Gilbert v. Sykes, 147 Cal. App. 4th 13, 27 (2007).*

☐ Opinion: Defendant's statements were opinions, not statements of fact, and therefore not actionable as defamation.

☐ Public Figure — Actual Malice Standard: Plaintiff is a public figure and must establish actual malice (knowledge of falsity or reckless disregard for truth), which Plaintiff cannot do. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).*

☐ Noerr-Pennington Doctrine: Defendant's petitioning activities are protected by the Noerr-Pennington doctrine and are not actionable.

2. [Second Challenged Claim — if applicable]

[Repeat analysis for each challenged cause of action.]

IV. DISCOVERY STAY

Upon filing of this Motion, all discovery proceedings are stayed pursuant to [CCP § 425.16(g) / TCPA § 27.003(c) / applicable statute], unless the Court orders otherwise for good cause. Defendant respectfully requests that the Court enforce the discovery stay and deny any requests by Plaintiff to conduct discovery prior to the hearing on this Motion.

V. ATTORNEYS' FEES AND COSTS

If this Motion is granted, Defendant is entitled to an award of attorneys' fees and costs as a matter of right under [CCP § 425.16(c)(1) / TCPA § 27.009 / Fla. Stat. § 768.295(4) / applicable statute]. Defendant's counsel will submit a declaration of attorneys' fees and costs in support of any such award following the Court's ruling.

[If applicable:] Defendant further seeks sanctions against Plaintiff and/or Plaintiff's counsel under [CCP § 128.5 / applicable rule] because this Motion was filed in [bad faith / solely for purposes of delay and harassment]: [________________________________].

VI. CONCLUSION

The [Complaint / challenged causes of action] arise from Defendant's protected speech and petitioning activities, and Plaintiff cannot demonstrate a probability of prevailing. Accordingly, Defendant respectfully requests that this Court:

1. Grant this Special Motion to Strike and strike [the Complaint in its entirety / the following causes of action: [________________________________]];

2. Award Defendant its attorneys' fees and costs as required by applicable statute; and

3. Grant any other relief the Court deems just and proper.

Respectfully submitted,

Dated: [__/__/____]

___________________________________________
[________________________________]
[________________________________] Bar No. [____________________]
[________________________________] (Law Firm Name)
[________________________________] (Street Address)
[________________________________] (City, State, Zip)
Telephone: ([____]) [____]-[________]
Facsimile: ([____]) [____]-[________]
Email: [________________________________]
Attorney for Defendant [________________________________]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the foregoing Special Motion to Strike (Anti-SLAPP) was served upon all counsel of record via [the Court's electronic filing system / U.S. Mail / email / hand delivery] as follows:

[________________________________] (Plaintiff's Counsel)
[________________________________] (Address / Email)

___________________________________________
[________________________________]

REQUIRED ATTACHMENTS

1. ☐ Declaration of [________________________________] in Support of Motion (with Exhibits)
2. ☐ [Proposed] Order Granting Special Motion to Strike
3. ☐ [Proposed] Order Awarding Attorneys' Fees and Costs (or request to brief separately)
4. ☐ Request for Judicial Notice (if applicable)

SOURCES AND REFERENCES

• California CCP § 425.16: https://www.casp.net/california-anti-slapp-first-amendment-law-resources/statutes/c-c-p-section-425-16/
• Texas TCPA: https://statutes.capitol.texas.gov/Docs/CP/htm/CP.27.htm
• Florida § 768.295: https://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.295.html
• New York Anti-SLAPP: https://www.nysenate.gov/legislation/laws/CVR/76-A