Court of Appeals Rejects Constitutional Challenges to Anti-SLAPP Statute, Affirms Dismissal of Lawsuit Targeting Allegedly Unlawful Boycott and $10,000 Statutory Award for Each Defendant

by Davis Wright Tremaine LLP

In one of the first published decisions to interpret Washington’s new anti-SLAPP statute, the Washington Court of Appeals this week affirmed a trial court’s dismissal of a lawsuit that arose from a consumer boycott of Israeli goods. It rejected the plaintiffs’ legal challenges to the statute’s constitutionality, confirmed its availability against allegedly "unlawful" activities, and made clear defendants may each recover their attorneys’ fees, costs, and $10,000 in statutory damages. Davis v. Cox, No. 71360-4-1, --- Wn. App. --- (Apr. 7, 2010).

In 2010, the Washington Legislature supplemented its 1989 anti-SLAPP statute, the nation’s first such law, with a broad enactment designed to curb lawsuits that target the rights of public participation and petition.1  Known as “strategic lawsuits against public participation” or “SLAPPs,” such lawsuits often allege defamation, but also include a variety of claims ranging from malicious prosecution to tortious interference with contractual relationships. The statute, RCW 4.24.525, allows SLAPP victims to bring an early motion to dismiss, stays discovery pending a decision on the motion, and requires the plaintiff to prove by clear and convincing evidence a probability of prevailing on the merits—or face dismissal, an award of attorneys’ fees, and statutory damages of $10,000 per defendant. 

In Davis, five members of the non-profit Olympia Food Co-op challenged the Co-op board’s decision to join a boycott of Israeli goods in solidarity with a humanitarian and human rights movement, claiming its adoption violated the Co-op’s policy of consensus decision-making. They sued 16 current and former directors, seeking (among other things) an injunction and damages. The defendants brought an anti-SLAPP motion, which trial court granted, finding that plaintiffs sought to abridge the defendants’ First Amendment right to endorse and implement a nonviolent boycott, and had failed to sufficiently show a probability of prevailing on the merits. It awarded the movants $10,000 apiece in statutory damages plus their attorneys' fees and costs.

The Court of Appeals affirmed the trial court’s order and in doing so, rejected a swath of arguments made repeatedly in trial courts relating to the constitutionality of the anti-SLAPP statute’s discovery stay and clear-and-convincing burden of proof. It also rejected the plaintiffs’ arguments that the anti-SLAPP statute’s protections for “lawful conduct in furtherance of… the exercise of the right of petition” did not apply because they alleged the defendants’ boycott was not “lawful,” finding “a court must generally presume the validity of the claimed constitutional right” unless the conduct is “illegal as a matter of law.” It made this key ruling by relying upon cases interpreting the California anti-SLAPP statute, after which Washington modeled its law.

The case, in which Davis Wright Tremaine LLP represented the defendants, reinforces the broad application of the anti-SLAPP statute to all suits targeting the rights of public participation, and illustrates the significant consequences of bringing SLAPPs.

1 Lawyers at Davis Wright Tremaine LLP drafted the legislation that became the anti-SLAPP statute.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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