The development of Oregon's anti-SLAPP law in 2017 resembles the progress of salmon headed upstream in Oregon rivers: slow, but definitely steady. It appears from an informal survey that more anti-SLAPP special motions to strike were filed in Oregon courts than ever before. 2017 also saw appellate court decisions issued that finally tied up several anti-SLAPP procedural loose ends.

In Bryant v. Recall for Lowell's Future Committee, 286 Or. App. 691 (2017), the Oregon Court of Appeals provided new guidance about the nature of an anti-SLAPP motion to strike and about procedural matters associated with the motion. The Oregon statute somewhat enigmatically provides that, '[t]he special motion to strike shall be treated as a motion to dismiss under ORCP 21 A [Oregon's equivalent of FRCP 12(b)] * * *.' Referencing this provision, the Oregon Court of Appeals concluded nearly 10 years ago that a special motion to strike must be filed before an answer is filed. But that did not answer all the procedural questions that could arise from the provision.

Bryant provides additional guidance as to the meaning of this provision by explaining that while the legislature intended to incorporate some timing aspects of a motion to dismiss, it did not intend that an anti-SLAPP special motion to strike should be treated as substantively identical to a motion to dismiss.

The specific issue before the court was whether the trial court rule that requires that a party filing a motion to dismiss to 'make a good faith effort to confer with the other parties concerning the issues in dispute' applied to a special motion to strike as well. The court held that it did not. The court explained that 'because a special motion to strike raises very different substantive issues than those raised in a motion [to dismiss], procedural conferral requirements do not apply to it.' This opinion will help to better distinguish a special to strike from a motion to dismiss.

Bryant also put a finer point on a plaintiff's burden to provide substantial evidence. A former city councilor brought suit against the committee organizing her recall, alleging that its members made defamatory statements about her in election materials. In order to defeat the defendants' special motion to strike, the plaintiff was required to show that defendants made false statements with knowledge or reckless disregard of their falsity. Direct evidence of that is not always easy to establish, especially without discovery.

Reversing the trial court's grant of the special motion to strike, the Court of Appeals confirmed what it had said before: 'At the anti-SLAPP stage of the proceedings, plaintiff does not have to prove that defendants acted knowingly or recklessly. Plaintiff need only present substantial evidence of a prima facie case.' Here, 'a failure to submit direct evidence of defendants' mental state is not fatal to plaintiff's claim, as long as we can draw reasonable inferences from evidence that supports plaintiff's prima facie case.' The court reiterated that it 'views all reasonable inferences in favor of plaintiff and [it] only considers defendants' countervailing evidence if it defeats plaintiff's showing as a matter of law. Here, a prima facie showing that defendants acted with reckless disregard is established from the reasonable inferences that may be drawn from the [provided] evidence.'

In Robinson v. DeFazio, 284 Or. App. 98, adhered to as modified, 286 Or. App. 709 (2017), the Court of Appeals answered a longstanding question about attorney fees to be awarded to a defendant prevailing in a special motion to strike. The trial judge slashed the defendant's requested fees because the 'defendant had a clear signal from this court that plaintiff's claims were preempted by federal law. Nevertheless the defendant chose to continue his challenge to plaintiff's complaint via the anti-SLAPP procedure, which engendered attorney fees, as opposed to a [motion to dismiss] that did not.'

The Court of Appeals held that the trial judge abused his discretion in considering the 'necessity' of an anti-SLAPP motion. Observing that the 'trial court appears to have reduced the amount of attorney fees because defendant used the anti-SLAPP procedure instead of a procedure that would not have entitled defendant to fees,' the court explained that the defendant's use of 'a permissible procedure' was not a valid basis for reducing the fee award. The statutory factors used in determining reasonable attorney fees 'do not provide a mechanism to reduce requests for fees based on the trial court's subjective estimation that a different procedure to obtain a dismissal could have been used.' It was an abuse of discretion for the trial court to 'punish defendant for choosing a reasonable dismissal procedure that entitled him to obtain attorney fees.'

This 'necessity' issue has caused confusion for years and has resulted in substantial inconsistency. The Court of Appeals' decision provides a definitive answer that clarifies a defendant's right to use anti-SLAPP motions without fear of losing fees on prevailing because a trial court might hold that such motion was not necessary.

Similarly, Robinson resolved an issue of the prevailing party fee to be awarded if defendant's anti-SLAPP motion succeeds. A larger prevailing party fee is awarded 'when judgment is given after trial of an issue of law or fact.' Oregon appellate courts have long held that a decision regarding a motion to dismiss is not such a trial. Here, the Court of Appeals held that because the trial court 'examined issues of law in granting the anti-SLAPP motion,' it met the definition of a 'trial' of an issue of law or fact.

In Schwern v. Plunkett, the 9th Circuit finally and firmly put to rest the question of whether it had jurisdiction to hear immediate appeals from denials of Oregon anti-SLAPP motions. In 2009, the same court held that Oregon's statute did not provide a sufficient basis for an interlocutory appeal because the statute did not demonstrate that its purpose was to provide immunity from suit. In direct response to that ruling, the Oregon legislature quickly passed amendments expressly creating a right of immediate appeal (in state court) from denials of anti-SLAPP motions, and adding that the purpose of Oregon's anti-SLAPP procedures 'is to provide a defendant with the right to not proceed to trial.' Four years later, the 9th Circuit observed in dicta that 'the Oregon statute now likely affords immunity from suit.' In 2017, the court definitively stated that 'we have jurisdiction to review denials of Oregon anti-SLAPP motions.' The court found that Oregon's amended statute, like California's anti-SLAPP law, grants immunity from suit by 'providing a defendant with the right to not proceed to trial.'

On remand of that matter to the district court for a determination of reasonable attorney fees, the defeated plaintiff argued that any award of fees should be limited to compensation for work specifically performed in support of the special motion to strike only and should not include fees incurred with regard to other defenses. The trial court held that Oregon's mandatory award of attorney fees to a prevailing defendant is not so limited but instead extends to all reasonable fees incurred in connection with litigating any reasonable defense.

Derek Green is counsel and Duane Bosworth is a partner in Davis Wright Tremaine LLP's Portland, Oregon, office.