Washington

The Washington anti-SLAPP statute protects defendants from claims based on actions involving public participation and petition. Wash. Rev. Code 4.24.525 (2011). Under the statute, an action involving public participation and petition includes five categories of activities: statements made before a legislative, executive or judicial proceeding; statements made in connection with an issue under consideration by a governmental body; statements reasonably likely to enlist public participation in an effort to bring about such governmental consideration; statements made in a place open to the public or a public forum in connection with an issue of public concern; and any other lawful conduct in furtherance of the exercise of free-speech or petition rights in connection with an issue of public concern.

Prior to significant amendments enacted in 2010, only statements made directly to governmental agencies or judicial bodies were protected under the Washington anti-SLAPP statute. In August 2010, the federal court in Washington applied the expanded statutory protection for public statements related to issues of public concern and dismissed privacy claims in a lawsuit against Filmmaker Michael Moore regarding his 2007 health care documentary “Sicko.” Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104 (W.D. Wash. 2010).

Another 2010 revision allows a defendant to file a motion to strike the complaint, which the court will hear within 30 days unless the docket is overbooked. Even then, the law directs the court to hold the hearing “with all due speed and such hearings should receive priority.”

Moreover, the court must rule on the motion within seven days of the hearing, and either party is entitled to seek expedited review in the appellate court if the trial court fails to do so in a timely fashion, although the statute does not define “timely.” Discovery activities are placed on hold from the time the motion is filed until the court has ruled on it, although the judge may order “specified discovery” to be conducted if the requesting party can show good cause for it.

In ruling on the motion to strike, a Washington court will first determine whether the defendant established that, more likely than not, the claim is based on an action involving public participation and petition. If that is the case, the judge will grant the motion unless the plaintiff can establish by “clear and convincing” evidence, a higher standard than the “more likely than not” one required of the defendant, that the claim is likely to succeed on its merits.

In making this determination, the court will consider the plaintiff’s complaint, the SLAPP defendant’s motion to strike and any sworn statements containing facts on which the assertions in those documents are based. Washington’s anti-SLAPP statute includes a provision allowing the state attorney general or any governmental body to which the SLAPP defendant’s acts were directed to intervene to defend or otherwise support the defendant.

If the court grants the motion to strike, in whole or in part, it will award costs, attorney fees, an additional $10,000 and such additional relief, including sanctions on the plaintiff and his attorney or law firm, “as the court determines to be necessary to deter repetition of the conduct and comparable conduct by others similarly situated.” Conversely, if the court finds that the motion to strike was frivolous or brought solely to delay the proceedings, it will award the same remedy to the plaintiff, even if he only partially prevailed in preventing dismissal of the suit. Either party is entitled to expedited review of the court’s decision on the motion to strike.