As you probably know, SLAPP stands for "strategic lawsuit against public participation." Many states have anti-SLAPP statutes, which allow defendants to dismiss a lawsuit on the grounds that it was filed to intimidate the defendant into ceasing certain protected conduct the plaintiff finds distasteful, like publishing a nasty review of their product.
Fearing abuse of SLAPP suits, many states also allow a plaintiff to "SLAPP back" (boy are these legislators clever), wherein a plaintiff rebuts the defendant's SLAPP claim by showing that the lawsuit is, indeed, meritorious.
What Did the Five Fingers Say to the Face?
Charlotte Rutherford, former general counsel of Texas oil field services company Schlumberger Ltd., was sued by her former employer, alleging that she took trade secrets with her to her new company. Rutherford invoked Texas' SLAPP statute, arguing that Schlumberger's suit is frivolous and little more than retaliation for her new company, Acacia Research Group, suing Schlumberger over alleged patent infringement.
To be pedantic for a second, Rutherford's is technically an anti-SLAPP claim, not a "SLAPP back." The latter would happen if Schlumberger could produce evidence showing that the claims were meritorious. But that doesn't seem likely; in July, the trial court said it was inclined to grant the anti-SLAPP motion because Schlumberger wasn't likely to succeed on the merits, reported Law360.
Know Your SLAPPing
Anti-SLAPP motions usually come into play when the plaintiff alleges defamation, but really, the plaintiff is just being harshly criticized and wants to silence his opponents through the chilling effect that comes with a lawsuit. Yelp and other companies that facilitate online reviewing are particularly susceptible to SLAPP suits because of their deep pockets.
Even though Rutherford was an ex-GC, companies should be aware of SLAAPs, anti-SLAPPs, SLAPP backs, and their limitations. Anti-SLAPP statutes correctly make companies think twice before pursuing a lawsuit as either a delay tactic or a bargaining chip, because that's not what the court system is there for. Companies on the receiving end of what appears to be a SLAPP suit can easily dismiss it, and sometimes recover costs (again, depending on the state), as the dismissal on SLAPP grounds essentially means that the lawsuit or claim was frivolous to begin with.
- Why, Yes, I AM Into SLAPPing (Popehat)
- State Anti-SLAPP Laws (Public Participation Project)
- SLAPPs and Kool Smiles: Law Firm's Ads Not Protected Speech (FindLaw's U.S. Fifth Circuit Blog)
- Appeal May Decide If D.C.'s Anti-SLAPP Law Applies to Fed Court (FindLaw's D.C. Circuit Blog)