Anti-SLAPP Litigation in the Healthcare Industry Merits Careful Consideration

* The following alert was originally published in California Healthcare News (CHN). To read it on the CHN website, click here.

California Code of Civil Procedure § 425.16, California’s “anti-SLAPP” statute (for “Strategic Lawsuit Against Public Participation”), forbids lawsuits brought to silence, censor, or intimidate defendants in retaliation for exercising their First Amendment rights. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App. 4th 777.) The statute contains an aggressive fee shifting provision intended as a deterrent to bringing such suits, by which the court is required to award attorneys fees to a defendant who brings a successful anti-SLAPP motion. (Code Civ. Proc. § 425.16(c)(1).) This provision — indeed, the entire statute — is broadly construed, “so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extricating [itself] from a baseless lawsuit.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 446.) By contrast, a plaintiff who defeats an anti-SLAPP motion is entitled to fees only on a showing that the anti-SLAPP motion is itself “frivolous or is solely intended to cause unnecessary delay.” (Id.) Courts use a two-step process to analyze anti-SLAPP motions. Step one is to determine whether the cause of action “arises from” protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If so, the burden shifts to the plaintiff to show that the case has “minimal merit.” (Id.) What constitutes “protected activity” is set forth in subdivision (e) of the anti-SLAPP statute itself.

* This article was also published in Health Care Counsel. To continue reading it there, click here.