The Oklahoma Bar Journal August 2022

express intent to silence those critics by burdening them with the time, stress and cost of legal action. Indeed, SLAPP suit filers are generally well-financed entities or individuals, while targets of such litigation are usually private citizens or small business owners whose criticism “may be detrimental to the organization’s business interests.” 57 As attorneys, we should always, as a standard element of the preliminary and ongoing litiga tion process, make sure we are analyzing all claims to determine if an OCPA motion to dismiss may be appropriate. We must be on the lookout for weak and retaliatory claims – while notice pleading remains the standard in Oklahoma, it will not suffice to defeat an OCPA motion to dis miss meritless claims. If an OCPA motion to dismiss is appropriate, we must certainly be ethically bound to assert it and engage in the accelerated process to relieve our clients and the courts of frivo lous and punitive litigation.

A FAIRY TALE EXAMPLE OF HOWTHE OCPA SHOULD WORK Let us say a used car purchase goes awry (gasp!), and the plaintiff filed suit alleging breach of con tract, fraud and violations of the Oklahoma Consumer Protection Act. For purposes of this example, the defendants then file coun terclaims alleging defamation, slander and libel and tortious interference with business. The defendants claim the averments contained in the petition maligned the defendants’ business reputa tion, and the defendants had been damaged thereby. Because of the enactment of the OCPA, the plaintiff/counter- defendant in this scenario has a unique opportunity to swiftly dispose of these frivolous counter claims rather than suffer through months or even years of litigation (and the cost associated with it!). After all, anti-SLAPP legislation, such as the OCPA, is aimed at “reduc[ing] the time commitment and financial resources [necessary] to combat SLAPP suits …” 56 The plaintiff/counter-defendant in this case should quickly file a motion to dismiss the defendants’ coun terclaims pursuant to the OCPA. The plaintiff must urge the court to prohibit the defendant from targeting the plaintiff for pursu ing a legitimate legal dispute and from “slapping” the plaintiff with counterclaims for simply filing the petition. The onerous is on the plaintiff here to timely file for a dis missal and attorney fees and costs pursuant to OCPA’s Section 1438. WHAT DO ATTORNEYS NEED TO TAKE AWAY FROM ALL OF THIS? Anti-SLAPP legislation is here to stay in order to battle an increasing tendency by parties with substantial resources to file meritless lawsuits against legitimate critics, with the

7. Long, quoting George W. Pring & Penelope Canan, SLAPPS: Getting Sued for Speaking Out , 9-10 (1996). 8. 12 O.S. §1432(A).

9. 12 O.S. §1440. 10. Long at 434. 11. Long at 433. 12. 12 O.S. §1432(B). 13. 12 O.S. §1433(A).

14. Id. 15. Id. 16. 12 O.S. §1433(C). 17. 12 O.S. §1437. 18. Anderson v. Wilken, 2016 OK CIV APP 35, ¶7, 377 P.3d 149. 19. Anderson at ¶7. 20. 12 O.S. §1434(B) (emphasis added). 21. Southwest Orthopaedic Specialists, PLLC v. Allison, 2018 OK CIV APP 69, ¶11, 439 P.3d 430, 435 (citing Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 201 (Tex.Ct.App. 2017)). 22. Southwest at ¶14. 23. 12 O.S. §1434(C). 24. Southwest at ¶16. See also , Jackson v. Jones, 1995 OK 131, ¶4, 907 P2d 1067. 25. Southwest at ¶19. 26. 12 O.S. §1434(D) (emphasis added). 27. Krimbill at ¶9. 28. 12 O.S. §1431(3). 29. Southwest at ¶12 (citing Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191, 201 (Tex.Ct.App. 2017)). 30. 12 O.S. §1431(7)(a-e).

31. 12 O.S. §1434(B). 32. 12 O.S. §1431 4(c). 33. 12 O.S. §1437(B). 34. 12 O.S. §1438(A). 35. Id. 36. 12 O.S. §1438(B). 37. 2017 OK 8, 389 P.3d 1117. 38. Steidley at ¶0. 39. Id.

40. Steidley at ¶7. 41. Steidley at ¶8. 42. 2017 OK 7, 390 P.3d 707. 43. 2018 OK CIV APP 37, 417 P.3d 1240. 44. Krimbill at ¶2. 45. Id. 46. Krimbill at ¶3. 47. Id. 48. Krimbill at ¶4. 49. Id. 50. Krimbill at ¶11. 51. Id. at ¶36. 52. Id. at ¶12. 53. Id. at ¶55. 54. Id. at ¶69. 55. Id. at ¶75. 56. Steidley at 785, quoting Laura Long,

ABOUT THE AUTHOR

Kindra N. Dotson is a founding partner of Renaissance Legal Solutions and an experienced trial lawyer.

She is a member of the Oklahoma Association for Justice, Oklahoma Employment Lawyers Association and OBA’s Women in Law Section.

“Slapping Around the First Amendment: An Analysis of the Right to Petition,” 60 Okla. L. Rev. 419 (2007). 57. Long at 422.

ENDNOTES

1. 12 O.S. §1430. 2. Bill Information for HB 2366, https://bit.ly/3yQXAeR, April 13, 2022. 3. Krimbill v. Talarico, 2018 OK CIV APP 73 at ¶4, 439 P.3d 447. 4. See, for example , Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§27.001-27.011. 5. Laura Long, “Slapping Around the First Amendment: An Analysis of the Right to Petition,” 60 Okla. L. Rev. 419 (2007), at 422. 6. Steidley v. Community Newspaper Holdings, Inc., 2016 OK CIV APP 63, ¶20, 383 P.3d 780.

14 | AUGUST 2022

THE OKLAHOMA BAR JOURNAL