Seattle Trademark Lawyer

Once in a while, a misplaced charge of false advertising or commercial defamation triggers an anti-SLAPP statute.

Anti-SLAPP statutes prohibit strategic lawsuits against public participation. RCW’s newly-amended anti-SLAPP statute is codified at RCW 4.24.525. It protects constitutional speech that otherwise would be deterred by the prospect of having to defend an expensive lawsuit by allowing the defendant to bring a special motion to strike the claims at the outset of the suit.

Here’s how it works in Washington. Under RCW 4.24.525(4), a party may bring a special motion to strike “any claim that is based on an action involving public participation and petition.” A party bringing a such a motion “has the initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition. If the moving party meets this burden, the burden shifts to the responding party to establish by clear and convincing evidence a probability of prevailing on the claim. If the responding party meets this burden, the court shall deny the motion.”

If the defendant wins, the court will dismiss the claims subject to the motion, award the defendant its reasonable attorney’s fees, and impose a $10k penalty on the plaintiff as punishment for its wrongful attempt to chill speech. That’s a pretty big stick.

In New York Studio, Inc. v. Better Business Bureau of Alaska, Oregon, and Western Washington, the plaintiff sponsor of children’s talent shows sued the BBB for defamation, tortious interference, and violation of Alaska’s Consumer Protection Act over a press release the BBB issued urging consumers to be cautious of talent auditions that were being advertised. The press release did not identify the plaintiff as the sponsor of the event, though some of the media outlets that picked up the story did.

BBB brought a special motion to dismiss.

On June 13, the Western District of Washington concluded that BBB met its burden: “Alaska BBB has shown that the press release was distributed to a number of media outlets and was also available to the public on its website. The press release was a matter of public concern because it was a general caution to consumers, and multiple media outlets investigated the matter on their own. Alaska BBB has met its burden of showing by a preponderance of the evidence that its press release was a matter of public participation and petition. Therefore under the Anti–SLAPP Act, the burden shifts to New York Studio to show by clear and convincing evidence a probability of prevailing on its claims of defamation, tortious interference, and violation of the Alaska CPA.”

The court concluded that New York Studios failed to meet its heavy burden. So, it dismissed New York Studios’ claims, awarded attorney’s fees to the BBB, and awarded the BBB $10k in statutory penalties.

Now, the anti-SLAPP statute only applies to claims that would discourage public discussion or involvement in public affairs. But it sometimes may be something to consider before filing or defending a claim of false advertising or commercial defamation.

The case cite is New York Studio, Inc. v. Better Business Bureau of Alaska, Oregon, and Western Washington, 2011 WL 2414452, No. 11-5012 (W.D. Wash.) (Leighton, J).