A3505

An Act concerning certain civil actions and supplementing Title

2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Definitions.

As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

a. “Act in furtherance of the right of advocacy on issues of public interest” means:

(1) A written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, made in a place open to the public or in a public forum in connection with an issue of public interest; or

(2) An expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.

b. “Claim” includes a civil action, complaint, cause of action, cross-claim, counterclaim, or other civil judicial pleading or filing requesting relief.

c. “Issue of public interest” means an issue related to: health or safety; environmental, economic, or community well-being; the government; a public figure; or a good, product, or service in the marketplace. “Issue of public interest” shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.

d. “Personal identifying information” includes, but is not limited to, an individual’s:

(a) Name, address, telephone number, date of birth, or mother’s maiden name;

(b) Driver’s license or driver’s license number, or non-driver’s license or non-driver’s license number;

(d) Social security number or tax identification number;

(e) Passport or passport number;

(f) Citizenship status, visa, or alien registration card or number;

(g) Birth certificate or a facsimile of a birth certificate;

(h) Credit or debit card, or credit or debit card number;

(i) Credit history or credit rating;

(j) Signature;

(k) Personal identification number, electronic identification number, password, access code or device, electronic address, electronic identification number, routing information or code, digital signature, or telecommunication identifying information;

(l) Biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;

(m) Place of employment, employment history, or employee identification number; or

(n) Other numbers or information that can be used to access a person’s financial resources or medical information, obtain identification, act as identification, or obtain property.

e. “SLAPP-back” means a cause of action for malicious prosecution or abuse of process in response to the filing or maintenance of a prior cause of action that has been dismissed pursuant to the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

2. Special Motion to Dismiss.

a. A party may file a special motion to dismiss a claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.

b. If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on an issue of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied.

c. (1) Except as provided in paragraph (2) of this subsection, upon the filing of a special motion to dismiss discovery proceedings on the claim shall be stayed until the motion has been disposed of.

(2) When it appears likely that targeted discovery will enable the plaintiff to defeat the motion to dismiss and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted. Such an order may be conditioned upon the responding party paying any expenses incurred by the defendant in responding to such discovery.

(3) The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice.

d. The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) do not apply to a cause of action to dismiss a SLAPP-back.

3. Special Motion to Quash.

a. A person whose personal identifying information is sought, pursuant to a discovery order, request, or subpoena, in connection with a claim arising from an act in furtherance of the right of advocacy on issues of public interest, may make a special motion to quash the discovery order, request, or subpoena.

b. If a person bringing a special motion to quash under this section makes a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the party seeking his personal identifying information demonstrates that the underlying claim is likely to succeed on the merits, in which case the motion shall be denied.

4. Fees, Costs and Damages.

a. A moving party who prevails, in whole or in part, on a special motion to dismiss brought under section 2 or on a special motion to quash brought under section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill) may be awarded the costs of litigation, including reasonable attorney fees. In addition, the moving party shall receive statutory damages of $10,000. Statutory damages may be denied if the court finds that the complaint or information made by the moving party in an act in furtherance of the right of advocacy on issues of public interest was communicated in bad faith.

b. The court may award reasonable attorney fees and costs to the responding party only if the court finds that a special motion brought under section 2 or 3 of P.L. , c. (C. ) (pending before the Legislature as this bill) is frivolous or is solely intended to cause unnecessary delay.

c. If the court finds that a special motion to dismiss a SLAPP-back is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to the party prevailing on the motion.

5. Exemptions.

a. P.L. , c. (C. ) (pending before the Legislature as this bill) does not apply to a claim brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises:

(1) Is a representation of fact made for the purpose of promoting, securing, or completing sales or leases of, or commercial transactions in, the person’s goods or services; and

(2) Is intended to be directed to an audience that is an actual or potential buyer or customer.

b. P.L. , c. (C. ) (pending before the Legislature as this bill) does not apply to a claim brought solely in the public interest or on behalf of the general public if all of the following conditions exist:

(1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney’s fees, costs, or penalties does not constitute greater or different relief for purposes of this subsection;

(2) The claim, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons; and

(3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.

6. This act shall take effect immediately.

STATEMENT

This bill would address the problem of “SLAPP” lawsuits (“Strategic Lawsuit Against Public Participation”) brought against individuals who speak out about public issues. Even though “SLAPP” suits are baseless and are ultimately dismissed by the courts, these individuals may incur substantial costs in defending themselves.

Under section 2 of the bill, a party may file a special motion to dismiss a claim arising from “an act in furtherance of the right of advocacy on issues of public interest.” The motion may be filed within 45 days after service of the claim. The motion to dismiss will be granted if the party makes a prima facie showing that the claim arises from an act in furtherance of the right of advocacy on an issue of public interest, unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion would be denied.

The bill defines an “act in furtherance of the right of advocacy on issues of public interest” as: (1) A written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, made in a place open to the public or in a public forum in connection with an issue of public interest; or (2) An expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest.

Section 2 of the bill provides that upon the filing of a special motion to dismiss, discovery proceedings on the claim would be stayed until the motion has been disposed of. If it appears likely that targeted discovery would enable the plaintiff to defeat the motion to dismiss and that the discovery will not be unduly burdensome, the court may order that specified discovery be conducted. Such an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in responding to such discovery.

The bill requires the court to hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal would be with prejudice.

The bill specifies that these provisions do not apply to a special motion to dismiss a “SLAPP-back.” The bill defines a “SLAPP-back” as a cause of action for malicious prosecution or abuse of process brought in response to the filing or maintenance of a prior cause of action that has been dismissed pursuant to the provisions of the bill.

Section 3 of the bill authorizes a person whose personal identifying information is sought pursuant to a discovery order, request, or subpoena in connection with a SLAPP suit to make a special motion to quash the order, request, or subpoena. If the person makes a prima facie showing that the underlying claim arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion to quash would be granted unless the party seeking his personal identifying information demonstrates that the underlying claim is likely to succeed on the merits, in which case the motion would be denied.

Under section 4 of the bill, a moving party who prevails, in whole or in part, on a special motion to dismiss a SLAPP suit or a special motion to quash a discovery order, request, or subpoena under the bill may be awarded the costs of litigation, including reasonable attorney fees. In addition, the moving party would receive statutory damages of $10,000. Statutory damages may be denied if the court finds that the complaint or information made by the moving party in an act in furtherance of the right of advocacy on issues of public interest was communicated in bad faith.

The bill authorizes the court to award reasonable attorney fees and costs to the responding party only if the court finds that a special motion to dismiss a SLAPP suit or a special motion to quash a discovery order, request, or subpoena was frivolous or solely intended to cause unnecessary delay. The bill provides that if the court finds that a special motion to dismiss a SLAPP-back is frivolous or solely intended to cause unnecessary delay, the court would award costs and reasonable attorney’s fees to the party prevailing on the motion.

Section 5 of the bill specifies that the bill would not apply to a claim brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct from which the claim arises:

(1) Is a representation of fact made for the purpose of promoting, securing, or completing sales or leases of, or commercial transactions in, the person’s goods or services; and

(2) Is intended to be directed to an audience that is an actual or potential buyer or customer.

Section 5 also provides that the bill would not apply to a claim brought solely in the public interest or on behalf of the general public if all of the following conditions exist:

(3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.