Nevada’s New Anti-SLAPP Law

Nevada's Anti-SLAPP law, freshly signed.

Nevada’s Anti-SLAPP law, freshly signed.

You may have noticed that the writing has been a bit slow as of late. Well, one of the things that has been taking our attention away has been an all-hands effort up in Carson City, working on getting a realanti-SLAPP law passed here in the Silver State.

We are proud to announce that the mission has been accomplished. Nevada officially has a new anti-SLAPP law it can be proud of.

For the last two years, the Legal Satyricon has been complaining about the inadequacy of Nevada’s existing anti-SLAPP law.  Notably, one judge suggested the possibility that the statute could be construed to only be used in lawsuits involving communications directly to a government agency, and the U.S. Court of Appeals for the Ninth Circuit ruled that the current statute did not allow for an immediate appeal of a special motion to dimiss.

Ever since I moved here in 2011, I’ve hoped to civilize Nevada with a meaningful anti-SLAPP law. Last year, I had the pleasure of meeting now-state senator Justin Jones, who heard my plea.  My pitch was that in addition to protecting free speech, it would help Nevada’s efforts to snag technology jobs that were leapfrogging the state from California to Utah.  Senator Jones agreed to present my legislation to the Nevada Legislature if he won–thankfully, he did.

When Nevada’s legislative session commenced in February, the Randazza Legal Group team was a flurry of activity, drafting materials in support of a new Anti-SLAPP bill based on materials from throughout the country to present to the Legislature.  Rather than simply replicating the statutes in California, Washington, or Texas, though, the ultimate bill (SB 286) made specific, limited additions to broaden the scope of Nevada’s Anti-SLAPP statutes while maintaining innovative provisions within those laws that were uniquely Nevadan.

Marc Randazza and Nevada Governor, Brian Sandoval, with the freshly-signed Nevada Anti-SLAPP law.

Marc Randazza and Nevada Governor, Brian Sandoval, with the freshly-signed Nevada Anti-SLAPP law.

Armed with my dream statute in hand, I flew up to Carson City to present testimony before the Senate Judiciary Committee.  My testimony focused on the need for a stronger Anti-SLAPP statute in Nevada, and the harm to individuals and businesses done by the consumption of public and private resources on the litigation of dubious claims against First Amendment-protected speech.  The Senate Judiciary Committee, and later the entire Nevada Senate, approved of the bill.  I then testified before the Assembly Judiciary Committee in support of the bill.  Like the Nevada Senate, the Assembly Judiciary Committee and the entire Nevada Assembly passed the bill.  The entire Nevada legislature had agreed that it was time to enhance Nevada’s Anti-SLAPP statutes so that they would embrace – and protect – a broader range of Constitutionally protected expression.  On June 3, 2013, Nevada Governor Brian Sandoval signed the bill into law.  The changes will take effect on October 1, 2013. The main changes are discussed below.  The full text of SB 286 as enacted by Governor Sandoval can be found here.

Expands the Breadth and Scope of Protected Speech.  The new law expands protected conduct to include any “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,” so long as the statement is truthful or made without knowledge of falsehood.

Allows For an Immediate Appeal of a Denied Anti-SLAPP Motion.   The new law modifies NRS 41.650 so that a movant is immune from any civil action­ – not just liability – from claims arising from his or her protected speech, which allows for an immediate appeal.

Expedites Judicial Consideration of Anti-SLAPP Motions.  Under the new law’s changes, the time for a court to rule on a motion after filing is reduced to 7 judicial days from 30 after the motion is served upon the plaintiff.

Creates a $10,000 Stick to Deter Frivolous Claims.  In addition to allowing for a movant’s recovery of costs and attorneys’ fees, the bill amends NRS 41.670 to allow the court to discretionarily award a successful movant up to $10,000 in addition to his or her reasonable costs and attorneys’ fees.  This serves as a significant disincentive and warning for those who might wish to pursue censorious litigation.

Creates SLAPP-Back Provision to Prevent Frivolous Anti-SLAPP Motions.  The bill amends 41.670 so that a court denying a special motion to dismiss must award the claimant to successfully defeat the Anti-SLAPP motion his or her costs and reasonable attorneys’ fees upon finding that the Anti-SLAPP motion was “frivolous or vexatious.” I believe this is necessary, lest the Anti-SLAPP law become a barrier to justice for those with supportable claims.

Retains Key Elements From Nevada’s Existing Laws.  While the bill represents a massive change to Nevada’s Anti-SLAPP laws, Nevada’s existing statutes had a number of powerful provisions that were unique among Anti-SLAPP provisions are fortunately still intact.  The Nevada Attorney General, or the “chief legal officer or attorney of a political subdivision” in Nevada may still “defend or otherwise support the person against whom the action is brought.” NRS 41.660(1)(b).  SB 286 also retains the successful Anti-SLAPP movant’s right to bring a separate action against the defeated plaintiff for compensatory damages, punitive damages, and the attorneys’ fees and costs for bringing the new action.

These changes bring Nevada into line with California, Oregon, Washington, Texas, and the District of Columbia as having the most comprehensive and progressive Anti-SLAPP statutes in the nation.  I am proud of these changes and the effort my Randazza Legal Group team put into effecting this critical update to Nevada’s Anti-SLAPP statutes.  We all look forward to seeing this statute in effect.

18 Responses to Nevada’s New Anti-SLAPP Law

  1. Wow.. that’s impressive stuff. Any chance you can pop over to Flori-duh while you’re on a roll?

    • It is our intention to target Flori-duh, but we think that we’ll need some other states to adopt one first. As you can imagine, there are a lot of companies and people in Florida who would actively oppose such legislation.

  2. Bruce says:

    Awesome! An impressive feat!

  3. How much did the final law differ from your original proposal?

  4. Fakey McFake says:

    Next task: making sure that the 9th Circuit doesn’t kill anti-SLAPP in federal court.

  5. bizstarz says:

    RE: Creates a $10,000 Stick to Deter Frivolous Claims

    Congrats on the success of your hard work addressing the inadequacy of Nevada’s anti-SLAPP law. However, though I’m not an attorney, I’m not sure that a possible $10,000 “fine” will be much of a deterrent against deep-pocketed SLAPP suit filers. I’m afraid they will just see it as the cost of being a bully.

    Your thoughts?

    • MKC says:

      Don’t forget attorneys’ fees. The $10k is pure incentive to go through the bother. The attorneys’ fees could easily be ten or sixty times that–or more.

      • bizstarz says:

        I didn’t forget attorneys’ fees. I also understand that this blog is mainly written by and for the benefit of attorneys. But don’t forget about clients’ time and harm. As you state, the “attorneys’ fees could easily be ten or sixty times” what clients’, the victims of SLAPP suits, receive. How’s that even close to fair? Anti-SLAPP laws are more concerned with attorneys getting handsomely paid, than they are for victims of SLAPP suits getting adequately compensated. Anti-SLAPP laws would be much more fair and effective if they included statutory damages of $100,000 or more if the movant successfully proved that a suit was a SLAPP suit, which is a willful, malicious and harmful act that should be treated as such. I suspect that anti-SLAPP laws are only slightly seen as a deterrent by aggressive and deep-pocketed SLAPP suit filers. Anyone ever compared the level of SLAPP suits filed after an anti-SLAPP law is enacted or strengthened?

  6. bizstarz says:

    Any chance you’ll be able to get CA and/or other states to add a provision that provides successful SLAPP suit victims with a discretionary award…and high enough to deter SLAPP suits and properly compensate victims of SLAPP suits? It’s terrible that the actual victims of Calif SLAPP suits receive zero compensation. The priority of anti-SLAPP laws seem to be that attorneys get paid, while ignoring the actual victims of SLAPP suits.

  7. MKC says:

    I especially like how the bill extends something like sovereign immunity to speech. That is really clever stuff. I wonder whether we can make something like that fly here.

  8. Bailey says:

    Mr. Randazza – Would you care to speculate about what would qualify as an “issue of public interest”? I assume this covers anything politics and gaming related, but is it broad enough to include anything published that is not considered tabloid?

    As a Nevada journalist this is very exciting news. Thank you for all of your efforts in the Silver State.

    • Bailey says:

      Also, would a website, television broadcast or print media be considered a place open to the public or a public forum?

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