The Oklahoma Bar Journal August 2022

the party filing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” 23 The courts have ruled that a “party establishes a prima facie case by producing competent evidence to support each material element of its cause(s) of action.” 24 More specifically, however, there must be “something more fact- intensive than general allegations that the required elements exist.” 25 But wait, there’s more burden- shifting to be done! The OCPA further provides that notwithstand ing the evidentiary requirements set forth in Subsection C, “The court shall dismiss a legal action against the moving party if the moving party establishes by a preponder ance of the evidence each essential element of a valid defense to the non-movant’s claim.” 26 So then, even if the non-moving party can prove, at nearly the inception of the litigation and with clear and specific evidence, each element of its claims, the moving party can easily defeat such proof by establishing a defense by just the preponderance of the evidence. Therefore, the analysis under the OCPA is three-pronged as follows: 1) Has the targeted party shown the claims against it are based on, relate to or in response to their exercise of rights protected under the OCPA?; if so, 2) Has the plaintiff established by clear and specific evidence a prima facie case?; if so, 3) Has the target party shown a valid defense by a pre ponderance of the evidence? 27 The burden-shifting paradigm operates to protect those who have been sued for “communica tion made in connection with a matter of public concern.” 28 While this necessarily includes First Amendment protections, speech protected under the OCPA “is con siderably wider than the category

but they are few. Additionally, the court must hear the OCPA dismissal motion within 60 days of the date it is served upon the non-moving party. 13 But, the court “could require a later hearing, upon a showing of good cause, or by agreement of the parties.” 14 However, “In no event shall the hearing occur more than ninety (90) days after service of the motion to dismiss, except as pro vided by subsection C of this sec tion.” 15 Thus, OCPA motions take precedence over many other items on crowded trial court dockets. Subsection C of §1433 allows for a maximum of 120 days from ser vice of the motion until the hearing if the court allows discovery under Subsection B of the statute. 16 Failure to hold a hearing within the time frames prescribed by the OCPA is grounds for an immediate and expedited appeal. 17 So then, “OCPA procedure states a mandatory duty by the district court to set [a] hearing” on every OCPA-based motion to dismiss. 18 Indeed, appellate courts have ruled, “If the trial courts have no duty to hear OCPA cases but may simply send them to the appel late court by inaction, the appellate courts must necessarily assume the function of holding trial on these motions. Not being a nisi prius court, this is a function we have never tra ditionally performed, and for which we have no established procedure.” 19

Other distinctive aspects of the OCPA are a heightened evidentiary standard and unique burden-shifting provisions. Section 1434 mandates that a court “shall dismiss a legal action against the moving party if the moving party shows by a preponderance of the evidence that the legal action is based on, relates to or is in response to the party’s exer cise of: 1) The right of free speech; 2) The right to petition; or 3) The right of association.” 20 So, the onus is on the moving party (usually the target defendant) to first prove it is more likely than not that the claims against them arise out of conduct relating to their constitutional rights to freedom of speech, to petition and to freely associate. The tar get party only needs to “make a plausible showing that the plain tiff’s lawsuit was driven, at least in part, by one of the forms of speech enumerated in §1431.” 21 Even “the possibility that [the target party] has been involved in one of the broad forms of speech protect by the Act, and that the plaintiff’s lawsuit is somehow connected or related to that speech” is sufficient. 22 Once the target party meets this initial burden, the non-moving party (generally a plaintiff) then has to prove by clear and specific evidence a prima facie case for each essential element of each claim. “The court shall not dismiss a legal action under this section if

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

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THE OKLAHOMA BAR JOURNAL