In August 2019, we wrote about a draft bill to amend New York's anti-SLAPP (Strategic Litigation Against Public Participation) statutes. On Nov. 10, 2020, Governor Cuomo signed the bill into law (L. 2020, ch. 250).

At just two pages long, the bill might not seem like much at first glance. In actuality, it changes New York's anti-SLAPP law from one of the country's narrowest to perhaps the strongest. It accomplishes this in three primary ways: First, the new law mandates, rather than simply permits, that the target of an actionable SLAPP recover costs and attorney fees. Previously, judges often exercised their discretion under the old law and chose not to award them. Second, the law lowers the threshold for determining that a SLAPP is actionable. Third, the law greatly expands the kind of lawsuits that qualify as SLAPPs. As we explain below, these changes carry the potential for a sharp spike in anti-SLAPP litigation and recoveries.

What Is the Anti-SLAPP Law?

As originally conceived, anti-SLAPP laws were generally intended to provide procedural protections for citizen activists, whistleblowers, and others who find themselves on the wrong end of vindictive lawsuits intended to punish them for speaking out on public matters. Beginning in the 1990s, states across the country started enacting anti-SLAPP laws in response to stories of moneyed interests filing meritless lawsuits (so-called "SLAPP" suits) against citizen advocates and others with opposing interests, leveraging the burdens and costs of litigation as a tool to stifle dissent.