More than half of the states in the United States have enacted anti-SLAPP legislation, or laws to prevent a “strategic lawsuit against public participation.” These laws are intended to protect First Amendment rights of expression and free association, particularly against plaintiffs seeking to use a lawsuit to intimidate defendants into silence. While the anti-SLAPP laws in some states have not had significant impact, others offer a pathway to early dismissal.

Anti-SLAPP legislation provides a variety of relief to such defendants, including staying discovery while an anti-SLAPP motion is pending and awarding attorneys' fees and costs if the motion is successful. Depending on the venue, an anti-SLAPP motion may be brought as a motion to dismiss or a special motion to strike the complaint. In all states, motions based on an anti-SLAPP statute must be filed early in the litigation, usually well before the start of costly and time-consuming discovery.

The Role of Anti-SLAPP Laws in Trade Secret Litigation

Parties accused of stealing trade secrets sometimes turn to anti-SLAPP laws in an effort to convince a court to dismiss claims of misappropriation, contending that use of the allegedly misappropriated trade secrets is a form of protected speech or activity under the First Amendment. Because the scope of anti-SLAPP laws is different in each state, both the substantive law and the procedures available to a defendant to use such a statute varies depending on where the suit was brought.

Some states, like California, have rarely seen a trade secret claim dismissed as the result of an anti-SLAPP motion. In Texas, however, defendants have historically achieved much greater success in early dismissal and recoupment of fees. Now that stands to change. Texas recently passed legislation narrowing the application of anti-SLAPP laws. (The new legislation goes into effect on September 1.) Among other things, the amendments remove trade secret and employer-employee cases from the anti-SLAPP laws. This may be a harbinger of a national rollback of anti-SLAPP protections.

In California, If You Can Bring a Trade Secret Claim, You Can Likely Overcome an Anti-SLAPP Motion

California's civil code offers some of the broadest protection for petitioning and speech related to public issues. Cal. Civ. Proc. Code §425.16 et seq. Although a party bringing a special motion to strike under California's anti-SLAPP statute has the initial burden of showing that the speech at issue relates to a public concern, courts tend to construe this requirement in favor of the moving party because California's anti-SLAPP statute expressly states that it is to be “construed broadly.” Cal. Civ. Proc. Code §425.16(a). Accordingly, if a movant satisfies its initial burden, the burden shifts to the nonmoving party to show a probability of prevailing on the claims in its complaint.