Discrimination Lawyers Can "SLAPP" Back When Employers Seek to Intimidate with Cross Complaints.

When litigants file frivilous lawsuits to silence persons speaking publicly on matters of significant public interest, the courts are authorized to dismiss the suit and to award the defendants their attorney fees in obtaining the dismissal.  The term "SLAPP" is an acronym for "Strategic Lawsuit Against Public Participation."  The abuse behind the SLAPP is that it's real purpose is not justice based on evidence, but merely to drive up the costs and burdens of litigation in the hope of dissuading the other party from exercising his right to publicly comment on a matter of public importance.  

Two plaintiffs attorneys in a battle over a share of fees awarded after a successful discrimination suit illustrate the SLAPP.  One Mr. Walczak assisted one Mr. McCoy in obtaining a successful discrimination verdict for their client, and was awarded 25% share in a large fee award. [In discrimination cases, the court is directed by statute to award fees to the successful plaintiff's attorney].  Mr. Walczak had to litigate that claim for fees against Mr. McCoy, and prevailed both at the U.S. District Court level and on appeal to the Ninth Circuit.  Mr. McCoy brought a defamation case against his former co-counsel, stating that Walczak had called him a "perjurer."  Walczak used the procedures of the "Anti-SLAPP" statute to have the defamation case dismissed in an early pre-trial motion.  He argued the defamation case was being used to silence his public statements on a matter of public significance.   In the context of a discrimination suit, and the vindication of those rights successfully in court, the trial judge apparently found that topic to be of sufficient public importance.  The Trial Judge also concluded that the evidence supporting defamation was so lacking that the case was brought for reasons of abuse and not justice.  The trial court awarded Mr. Walczak $92,000 in attorney fees incurred in bringing the anti-SLAPP motion.  Therein is the real power of the anti-SLAPP statute. 

Mr. McCoy has appealed and argued that the trial judge improperly awarded the $92,000 in fees.  The case was orally argued before the Calfornia Court of Appeal on August 30, 2011.  The Court appears ready to affirm the trial court's dismissal and award of fees.  

For a general overview of Anti-SLAPP decisions in California, go to CA Anti-SLAPP Decisions.  See also CA Code of Civil Procedure Section 425.16 et seq.  

For employees and their attorneys, the anti-SLAPP statutes provide a powerful protection against employers who would try to intimidate employees by filing cross complaints for defamation or breach of confidentiality agreements, breach of non-solicitation agreements, or whatever sundry suits they might contrive.  The use of such suits to silence an employee complaining of discrimination and harassment is exactly the interference with public debate the statutes seek to prevent.