Defamation claims arising under New York law are often litigated in federal court, either under that court’s diversity jurisdiction (because the parties are citizens of different states) or because they are being litigated in tandem with claims that arise under federal law. Although counsel may not always have a choice of forum, the amendments to New York’s “anti-SLAPP” statute that took effect in November 2020 (see 2020 Sess. Law News of N.Y. Ch. 250 (A. 5991-A)) add to the factors that counsel may need to consider when they do have such a choice—and may make New York state court a more attractive forum for defendants (and a less attractive one for plaintiffs). This article explains why.
Background: New York’s Statute
“Anti-SLAPP” statutes are designed to shield defendants from lawsuits brought based on conduct that constitutes protected speech—so-called “strategic lawsuits against public participation.” In November 2020, New York significantly expanded its anti-SLAPP statute. Whereas the law formerly applied only to claims relating directly to a defendant’s efforts “to report on, comment on, rule on, challenge or oppose” certain kinds of applications to a “government body” (see Int’l Shoppes v. At the Airport, 131 A.D.3d 926, 928 (2d Dept. 2015)), it now applies to all claims that seek damages based on (a) “any communication in a public place open to the public or a public forum in connection with an issue of public interest”; or (b) “any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public interest” (Civil Rights Law §76-a(1)(a)). While not every defamation claim will be covered by the expanded statute, the statute’s application is broad: it defines “public interest” to mean “any subject other than a purely private matter.” Civil Rights Law §76-a(1)(d).
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