Florida might have a real Anti-SLAPP Law? Maybe. But, don’t get excited.

It looks like a bill is working its way through the Florida legislature that could turn it’s terrible Anti-SLAPP law into one that is of the “not so bad” variety.

Florida House bill 1041 and its Senate companion, Senate bill 1312, take Florida Statute § 768.295 from “completely useless” to “hopeful.”

Currently, Fla. Stat. § 768.295 is super anemic. It only applies to governmental entities. Florida has another Anti-SLAPP act that only applies to homeowners’ associations (but not condo associations). See Fla. Stat. § 720.204(4). As far as I know, § 768.295 has never been used. On the other hand, § 720.204(4) has been used exactly one time. (See Veranda Partners v. Giles) — and that didn’t get appealed, so it is a trial level court order in Orange County, Fla.

In other words, there is a reason that Florida is the most SLAPP-happy state in America.

Therefore, this is a pretty positive development in Florida.

Unfortunately, I am less optimistic than you might think. You see, Florida has a fantastic frivolous claims law now. Fla. Stat. § 57.105 is, textually, a powerful tool to use against frivolous claims, motions, and positions in litigation.

In 1999, the Florida Legislature strengthened § 57.105. That revision gave fees and costs to parties that prevail on a sanctions motion. The purpose was to “reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available.” Wendy’s of N.E. Florida, Inc., v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003). Before the 1999 revision, a moving party had to show a complete absence of any justiciable issue of fact or law. That is a standard that really could never be overcome. But, the legislature’s update provided relief if there were “claims or defenses that are unsupported” or frivolous. Id.

In 2002, the legislature added in a safe harbor, which gave parties a chance to withdraw their unsupportable claims or defenses. See Bionetics Corp. v. Kenniasty, 69 So.3d 943, 949 (Fla. 2011), citing Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004).

So, you see, Florida already has an Anti-SLAPP act of sorts. It doesn’t end the litigation early on, but it would if § 57.105 really existed. But, ask any Florida litigator how many times she has seen conduct that absolutely screams out for sanctions under § 57.105, and then ask her how many times she has seen them imposed. Lets just say that in Florida, they should be as common as squashed armadillos on Florida highways. Instead, you’re probably more likely to step in Florida panther shit than you are to see § 57.105 sanctions (there are 20-30 panthers left in the wild). And, if the party that stands to lose is represented by someone who donated to the judge’s election campaign, you might as well be talking about stepping in unicorn shit, dropped from a leprechaun blimp flying over a magic candy rainbow.

The Florida legislature can do whatever it wants to try and deter frivolous defamation claims. The rubber hits the road in Florida’s courthouses, and its elected judiciary is not very likely to deviate from how it has done things since before the days of air conditioning.

Therefore, unless Florida has an Anti-SLAPP law that provides for an interlocutory appeal with de novo review, it may as well not have one at all. The text of the current versions of the bill suggests the possibility that it could have such review, but it is not at all clear.

That all said, lets not take anything away from Senators David Simmons and Don Gaetz (both Republicans) or Democratic Representative Jared Moskowitz. The bill might not be perfect, and it might be doomed to irrelevance in most courthouses across the state. But, it is at least a step in the right direction from the last state in the union that I ever expected to do the right thing.

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