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).

A plaintiff asserting a claim that is covered by the statute must prove by clear and convincing evidence that the communication on which the claim is based "was made with knowledge of its falsity or with reckless disregard of whether it was false." Id. §76-a(2). If the defendant prevails, the plaintiff may be liable for attorney fees "upon a demonstration" that the action "was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for the extension, modification or reversal of existing law." Id. §70-a. The defendant may also recover other damages (including punitive damages) if the claim was "commenced or continued" for the purpose of "maliciously inhibiting" free speech. Id. Further, on a motion to dismiss such a claim (either on a pre-answer basis or on summary judgment), the plaintiff bears the burden of demonstrating that the claim "has a substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law." See CPLR 3211(g); CPLR 3212(h).