Monday, March 8, 2010
4/13/10 - Pincus SLAPPinar on the elusive "gravamen" concept
Go to PincusProfessionalEducation.com for details on the SLAPP webinar (SLAPPinar) on 4/13/10 from 1:00pm to 2:30pm. Please join me for an intermediate SLAPPinar on the elusive "gravamen" concept. Actual complaints will be analyzed to illustrate the application of the gravamen concept in plain and mixed SLAPP cases. Disagreements among various Appellate Districts will be highlighted.
SLAPP fees Nondischargeable in Bankruptcy Under New Federal Bill
A Bill introduced in the House of Representatives on 12/16/09 would provide that litigants with procedures to combat SLAPP suits. These protections are needed to protect citizen participation in government and freedom of speech, according to the text. The Citizen Participation Act of 2009 (H.R. 4364) was introduced 12/16/09 by Rep. Steve Cohen (D-Tenn.) and is pending in the judiciary committee.
For an action brought in state court in a state court, the defendant would be permitted to remove the suit to federal court for the purpose of filing a special motion to dismiss. It is modeled after California's anti-SLAPP legislation and has similar exceptions for public interest and commercial speech set for in CCP 425.17. A prevailing defendant on a special motion to dismiss would be entitled to attorney's fees and the fee award would not be dischargeable in bankrupcty.
This new bill, when passed, will have profound malpractice and SLAPPBack malicious prosecution implications for SLAPP suit filers (plaintiffs) and the attorneys who represent them.
In other words, once the fees are awarded, they are nondischargeable even if there is no finding of fraud, or willfull or malicious conduct on the part of the SLAPP filer. So some innocent plaintiffs and their attorneys will be unfairly harmed by this law. So now there is much more at stake for plaintiffs opposing SLAPP motions and SLAPP fee motions than ever before. All the more reason to have a competent SLAPP attorney screen your complaints and cross-complaints before they get filed and to use expert declarations to testify for the lowest fee award possible. See prior 2/26/10 blog on SLAPP damage control$
Overall, however, I think it is great from the defense perspective that SLAPP fees may soon be nondischargeable in bankruptcy. Now collection is less of an issue in SLAPP fee cases.
This new bill will give anti-SLAPP laws throughout the nation the most powerful jaws and sharpest teeth of any pre-trial dismissal motion on the books.
For an action brought in state court in a state court, the defendant would be permitted to remove the suit to federal court for the purpose of filing a special motion to dismiss. It is modeled after California's anti-SLAPP legislation and has similar exceptions for public interest and commercial speech set for in CCP 425.17. A prevailing defendant on a special motion to dismiss would be entitled to attorney's fees and the fee award would not be dischargeable in bankrupcty.
This new bill, when passed, will have profound malpractice and SLAPPBack malicious prosecution implications for SLAPP suit filers (plaintiffs) and the attorneys who represent them.
In other words, once the fees are awarded, they are nondischargeable even if there is no finding of fraud, or willfull or malicious conduct on the part of the SLAPP filer. So some innocent plaintiffs and their attorneys will be unfairly harmed by this law. So now there is much more at stake for plaintiffs opposing SLAPP motions and SLAPP fee motions than ever before. All the more reason to have a competent SLAPP attorney screen your complaints and cross-complaints before they get filed and to use expert declarations to testify for the lowest fee award possible. See prior 2/26/10 blog on SLAPP damage control$
Overall, however, I think it is great from the defense perspective that SLAPP fees may soon be nondischargeable in bankruptcy. Now collection is less of an issue in SLAPP fee cases.
This new bill will give anti-SLAPP laws throughout the nation the most powerful jaws and sharpest teeth of any pre-trial dismissal motion on the books.
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