Adam Leitman Bailey, P.C. Defeats Retroactive Application of Anti- SLAPP Action After Victory on Defamation and Malicious Prosecution Claims for Cooperative.
Adam Leitman Bailey, P.C. was retained by a Cooperative to pursue a defamation claim brought against a former Board member and a shareholder for posting and disseminating libelous and defamatory remarks against the Cooperative Board of Directors. The Defendants counterclaimed alleging “lack of probable cause” and “intimidation” and seeking unspecified damages.
The Cooperative filed a motion for partial summary judgment, seeking dismissal of certain of the affirmative defenses and the counterclaims, to the extent they allege malicious prosecution or abuse of process. Both Defendants filed a cross-motion to dismiss the Complaint, alleging that the action was not authorized by the Board President and that it failed to state a cause of action for defamation. Shortly thereafter, one of the Defendants filed another cross-motion seeking dismissal of the Complaint on the grounds that the action for defamation was a “strategic lawsuit against public participation” (known as a SLAPP suit) and for recovery of costs and attorneys’ fees.
In 1992, legislation was enacted to address a concern about the use of civil litigation, primarily defamation suits, to intimidate or silence those who speak out at public meetings against proposed land use development and other activities. While this action was pending, the statute was amended to broaden the scope of its application to apply to speaking out in any place open to the public or public forum. Violation of the new, broader, definition was subject to mandatory reimbursement of the Defendant’s legal fees.
Adam Leitman Bailey, P.C. argued in opposition to the SLAPP motion that the amended statute should not be applied retroactively and that the pending action was not an action involving public petition and participation under the former, more restrictive, definition. The Court agreed and denied the motion to dismiss. The Court also denied the separate motions by the two Defendants to dismiss the Complaint. Defendants were unable to defeat Adam Leitman Bailey argument that the action had been duly authorized by the Board President.
Adam Leitman Bailey was also successful on its motion to dismiss the counterclaims for malicious prosecution and abuse of process. These counterclaims and related affirmative defenses were dismissed by the Court.
Steven R. Wagner and Bonnie Reid Berkow of Adam Leitman Bailey P.C. prevailed for the board of directors and the building of this cooperative