There's a new SLAPP law in town

New York has long had a law on the books that makes it illegal to sue someone over their public advocacy. These were called anti-SLAPP suits. SLAPP stands for Strategic Lawsuits Against Public Participation. But the old anti-SLAPP law only applied in the context of advocacy for public permits, usually  land-use disputes. But the SLAPP law changed a few years ago to prohibits retaliatory lawsuits involving other forms of public advocacy. The case law is still developing in this area.

The case is Whittaker v. Markle, issued by Ulster County Supreme Court on March 13. Christopher Watkins and I represent defendant Donnie Markle, a private businessman who testified before the County Legislature that an employee at the Ulster County Resource Recovery Agency (which runs the landfill and takes on other recycling duties), Willie Whittaker, was hoarding the compost that members of the community are able to purchase on their own. Following Markle's testimony, Willie's brother, Charles, who serves as the Director of Operations at OCRRA, sued Markle for negligent infliction of emotional distress, claiming that Markle had lied about the compost and caused Whittaker to suffer emotional distress because County policymakers began to more carefully scrutinize his job performance. (Markle has a separate federal lawsuit against UCRAA under the First Amendment, because the agency barred him from the facility following his public testimony).

Justice Graff finds that Whittaker's lawsuit against Markle is a SLAPP suit because Markle testified about  a matter of public importance in telling the County Legislature about the misuse of public resources. State law prohibits retaliatory lawsuits like this if the lawsuit lacks a substantial basis. This means that a legitimate lawsuit against the public speaker is not a SLAPP suit. Whittaker's lawsuit for negligent infliction of emotional stress lacks a substantial basis, Justice Graff holds, because Markle did not breach any duty toward Charles 9he testified about Willie, not Charles), and Markle's testimony did not unreasonably endanger Charles' physical safety. Without any real basis to sue Markle, Whittaker's lawsuit is a SLAPP suit under New York. That entitles Markle to damages and attorneys' fees, to be determined later.

A unique procedural issue arises in this case. When Markle filed his motion to dismiss the case under the anti-SLAPP law, rather than defend this lawsuit, Whittaker withdrew the lawsuit entirely. Does that make the SLAPP issue go away? In the First and Second Departments, discontinuing the lawsuit prior to filing the Answer does not moot a motion to dismiss. In the Fourth Department, discontinuance does moot the motion to dismiss if the case is discontinued prior to filing the Answer.