New York First Department Clarifies The Applicability Of New York's Anti-SLAPP Statute

Anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") laws are designed to discourage the use or threat of litigation to stifle free expression. In November 2020, New York State amended its antiSLAPP statute to greatly expand its protections. Since this amendment, federal courts have wrestled with whether the law (or portions of it) apply in federal cases — sometimes struggling to determine which provisions are substantive (and therefore applicable in federal actions) and which are procedural (and therefore inapplicable).

On November 28, 2023, in 161 Ludlow Food v. L.E.S. Dwellers, the Appellate Division of the Supreme Court of New York, First Department, offered some clarity, holding that New York's anti-SLAPP procedural rules under Civil Practice Law and Rules ("CPLR") Sections 3211 and 3212 operate independently of the provisions of New York's anti-SLAPP statute that permit parties to recover attorneys' fees and punitive damages. Therefore, the portions of the statute that permit the recovery of attorneys' fees and punitive damages are substantive provisions that apply in federal actions.

I. Background

A. The New York Anti-SLAPP Law

Strategic lawsuits against public participation ("SLAPPs") are actions brought for the purpose of threatening or silencing critical speech. SLAPP suits lack a valid basis in law or fact but are brought to curtail the speech of current or future critics through the threat of legal liability and expensive and/or time-consuming litigation. In recognition of the danger such suits pose to free speech, many states have adopted anti-SLAPP laws designed to curtail such meritless suits. New York, for example, passed its original anti-SLAPP law in 1992.¹

New York's original anti-SLAPP law, however, protected only limited categories of speech. The law protected defendants in legal actions "involving public petition and participation," N.Y. Civ. Rights § 70-a, defining this term to include only cases brought by plaintiffs seeking public permits, zoning changes, or other entitlements from a government body.² Under this narrow definition, a substantial amount of speech about issues of public concern — including most speech by journalists — was not covered by the anti-SLAPP statutory scheme. As one court wrote, nearly 15 years after its enactment, the anti-SLAPP law had not been successfully used to protect speech by a journalist.³

In 2020, New York amended its anti-SLAPP statutory scheme to broaden substantially its protections. Today, New York's anti-SLAPP scheme includes four statutes that work in concert to limit SLAPP suits:

1. New York Civil Rights Law Section 76-a defines who qualifies for SLAPP protection and defines the standard of proof for a plaintiff in a SLAPP action as actual malice.⁴
2. New York Civil Rights Law Section 70-a allows a prevailing SLAPP defendant to obtain costs attorneys' fees.⁵
3. CPLR 3211(g) requires that courts grant a special motion to dismiss a SLAPP suit unless a plaintiff demonstrates a substantial basis in law for its claim.⁶
4. CPLR 3212(h) requires courts to grant motions for summary judgment for the defendant unless a plaintiff demonstrates a substantial basis in fact and law.⁷

The 2020 amendment included three key changes to the anti-SLAPP scheme. First, New York expanded the scope of protection of the anti-SLAPP law — set forth in New York Civil Rights Law Section 76-a — to include all speech on a matter of public interest.⁸ By expanding the definition of matters "involving public petition and participation" to include claims based upon "any communication in a place open to the public or a public forum in connection with an issue of public interest" and "any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest, or in furtherance of the exercise of the constitutional right of petition," New York substantially broadened the scope of speech protected by the statute and the protections provided to such speech. New York's anti-SLAPP law now applies to all protected expression on matters of public interest, which includes all or nearly all news journalism.⁹

Second, New York revised the fee award provisions — set forth in Civil Rights Law Section 70-a — to make fee-shifting awards mandatory, not discretionary, when a plaintiff's case lacks a substantial basis in fact or law.¹⁰

Finally, New York revised CPLR 3211(g) to provide for an immediate stay of discovery while a special antiSLAPP motion to dismiss is pending.¹¹

Although these 2020 revisions have expanded the protections offered to speech under New York's antiSLAPP statute, the protections have been limited by inconsistent application of the statutory scheme in federal court.

B. Federal Courts Have Applied New York's Anti-SLAPP Provisions Inconsistently

Under the Erie doctrine,¹² a federal court sitting in diversity jurisdiction will apply state substantive laws. But where there is a conflict between state and federal procedural law, the court will apply federal procedural law.¹³ Categorization of state laws as "procedural" or "substantive" can thus have significant consequences for parties bringing state claims in federal court, and since New York passed its first anti-SLAPP statute in 1992, federal courts have debated the substantive versus procedural contours of the statute. And with New York's dramatic expansion of the anti-SLAPP statute's protections in 2020, the question of whether or not federal courts will apply the protections has only increased in importance.¹⁴

Federal courts in New York have generally found that CPLR 3211(g) and 3212(h) do not apply in federal court because they dictate procedure for anti-SLAPP cases that conflicts with the Federal Rules of Civil Procedure (i.e., special motions to dismiss or for summary judgment with different legal standards than those applied under the Federal Rules of Civil Procedure).¹⁵ But most New York federal courts have applied Civil Rights Law Sections 70-a and 76-a in federal courts as substantive provisions. Rulings on this issue, however, have not been uniform.

For example, Judge Jed Rakoff applied Civil Rights Law Section 76-a in Palin v. New York Times, finding that he was bound to "apply § 76-a because it is a substantive, rather than procedural, provision."¹⁶ Judge Eric Vitaliano agreed in Coleman v. Grand, finding that Section 76-a was "manifestly substantive" in "governing the merits of libel claims and increasing defendants' speech protections."¹⁷ Also, in June 2023, the Second Circuit affirmed Judge Paul Engelmayer's application of Section 76-a's actual malice standard to dismiss a SLAPP action, implying that Section 76-a is generally applicable in federal court.¹⁸ In a footnote, the court stated that it "assumed without deciding that the anti-SLAPP amendment" was applicable; thus, its discussion of Section 76-a in relation to antiSLAPP was non-binding dicta.¹⁹

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