Nevada's New Anti-SLAPP Law

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.

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.

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.