The Oklahoma Bar Journal August 2022

for fees and costs if the court finds that a motion to dismiss under the OCPA was brought frivolously or for the purpose of delay. 36

with similar anti-SLAPP statutes, the court determined, “A de novo standard [was] indicated by existing precedent and persuasive authority …” 49 Krimbill contains the first in-depth analysis and application of the burden-shifting provisions of the OCPA. In doing so, the court noted, “Interpreting the OCPA requires balancing the unusual judgment/dismissal provisions of §1434 against two other OCPA provisions, §§1430 and 1440.” 50 The court accepted the district court’s finding that Mr. Talarico’s email was “a communication made in connection with a matter of public concern regarding a good, product or service in the market place,” as contemplated under §§1431(3) and 1421(7). 51 It then had to determine if Mr. Krimbill had established a prima facie case for libel by clear and specific evidence, an evidentiary standard having no prior history in Oklahoma. 52 The court found the district court did not err by relying on the pleadings, and Mr. Krimbill’s affidavit in finding a prima facie case had been established. 53 Next, the court shifted its focus to determine whether Mr. Talarico had established by a preponder ance of the evidence a defense to the libel claim. It examined various privileges and ultimately determined that “pursuant to the limited record” available for review, it could not determine which, if any, privileges may apply to the libel claim. 54 Ultimately, the appellate court found the dis trict court did not err in denying Mr. Talarico’s motion to dismiss pursuant to the OCPA. 55 Krimbill is probably the most thorough and illuminating analysis of the OCPA currently available.

of speech protected by the First Amendment.” 29 Matters of pub lic concern, as defined under the OCPA, encompass: health or safety; environmental, economic or community well-being; the government; a public official or public figure; or a good, product or service in the marketplace. 30 To be clear, the OCPA includes, but is not limited to, the right to free speech, the right to petition and the right of association. 31 The OCPA, in fact, protects any “com munication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial or other govern mental body or in another govern mental or official proceeding.” 32 APPEAL PROCESS AND ATTORNEY FEES The OCPA also provides for an expedited appeal process. Pursuant to 12 O.S. §1437(B), “An appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action filed pursuant to Section 3 of this act or from a trial court’s failure to rule on that motion in the time pre scribed by Section 5 of this act.” 33 Further, should a party be success ful in having a claim dismissed pursuant to the OCPA, it is statu torily entitled to attorney fees and costs. Specifically, the court shall award to the moving party court costs, reasonable attorney fees and other expenses “as justice and equity may require.” 34 Moreover, the statute mandates that the court additionally impose “sanctions against the party who brought the legal action as the court deter mines sufficient to deter the party who brought the legal action from bringing similar actions described in the Oklahoma Citizens Participation Act.” 35 On the other hand, however, the statute provides

OKLAHOMA OCPA JURISPRUDENCE

The first case in Oklahoma to really explore the OCPA was Steidley v. Singer, 37 in which several Roger County district attorneys sued citizens in 2013 for filing a petition for a grand jury inves tigation. 38 The district attorneys alleged the citizens’ petition con tained “false and reckless allega tions against them.” 39 The citizens moved for dismissal pursuant to the OCPA, but the court ruled the legislation did not apply retroac tively. 40 The court held, “Because the OCPA affects substantive rights, it must be prospectively applied to legal actions filed after the November 1, 2014, effective date.” 41 The Oklahoma Supreme Court reiterated that the OCPA shall not be applied retroactively in Anagnost v. Tomecek . 42 In 2018, the Oklahoma Court of Civil Appeals took up the OCPA in Krimbill v. Talarico. 43 The parties in Krimbill had long been involved in protracted business litigation in Delaware. 44 During that time, Mr. Talarico sent an email to cer tain board members in which he stated he believed the allegations in the litigation were “illustrative of broader, more systematic issues at the company under Mike’s [Krimbill’s] leadership …” 45 In response, Mr. Krimbill filed suit in Tulsa County district court alleg ing libel. 46 Mr. Talarico then filed a motion to dismiss pursuant to the OCPA; the district court denied the motion and he appealed. 47 The court, finding this an issue of first impression, advised, “There is no established appellate stan dard of review in this case.” 48 But, following the lead of other states

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THE OKLAHOMA BAR JOURNAL