Running the Gauntlet: Surviving a Uniform Public Expression Protection Act Challenge to Your Speech-Based Claim

Course Description

This course provides a practical examination of the Uniform Law Commission’s Uniform Public Expression Protection Act (UPEPA) and its impact on litigation involving speech-based claims. Participants will analyze the Act’s key procedural provisions, including Sections 3, 4, 5, 7, and 10, with a focus on special motions for expedited relief, automatic stays of discovery, dismissal standards, and mandatory attorney’s fees. The program will also explore UPEPA’s statutory exemptions, best practices for pleading claims with sufficient factual specificity to survive an anti-SLAPP challenge, and the evidentiary considerations that can strengthen a claim. Finally, attendees will learn practical strategies for counseling clients on UPEPA’s risks, procedural requirements, and potential financial consequences, equipping them to effectively navigate litigation involving protected public expression.

Principles

• Understanding UPEPA’s Procedural Framework Is Essential to Speech-Based Litigation
  • The Uniform Public Expression Protection Act establishes expedited procedures—including special motions, automatic discovery stays, dismissal standards, and mandatory fee-shifting—that can fundamentally alter the course of litigation involving protected speech.
• Surviving an Anti-SLAPP Challenge Requires Fact-Specific Pleading and Evidentiary Support
  • Plaintiffs pursuing speech-based claims must plead detailed, well-supported allegations and, where appropriate, provide affidavits or documentary evidence to establish a prima facie case before discovery is available.
• Statutory Coverage and Exemptions Shape Litigation Strategy
  • Determining whether a claim falls within UPEPA’s protections—or qualifies for an exemption such as commercial speech, government enforcement, or official-capacity conduct—is a critical threshold issue that influences case strategy and potential outcomes.
• Early Risk Assessment and Client Counseling Are Critical
  • Attorneys should evaluate UPEPA’s applicability at the outset of a case, advise clients regarding procedural requirements and the possibility of mandatory attorney’s fees, and develop litigation strategies that account for both the Act’s protections and its financial consequences.

 Syllabus

1. UPEPA Structural Gauntlet
   • Section 3
     • Authorizes Special Motion for Expedited Relief
       • Motion needs to be filed within 60 days of being served; however, late filing may be allowed upon showing of good cause
       • Borad scope – entire lawsuit or just specific, targeted causes of action within the pleading
     • Section 4
       • Mandates an automatic stay of all court proceedings between the moving and responding parties – including discovery and pending hearings – immediately upon the filing of a special motion for expedited relief
         • Designed to halt burdensome litigation tactics common in SLAPP suits, preventing plaintiffs from draining defendant’s resources through expensive, time-consuming discovery before the merit of the case is decided
       • Automatic stay does not automatically apply to all parties in the case; however, the court may stay proceedings or discovery involving other parties if those matters relate to issues material to the dismissal motion
       • Exception: The court may allow strictly limited discovery during the stay if a party demonstrates that specific information is necessary to meet a burden of proof and cannot be reasonably obtained elsewhere
     • Section 5
       • Governs Hearing Procedure and Timeframe
         • Court must hear the anti-SLAPP motion within 60 days, unless it determines a later date is required to accommodate limited discovery under Section 4
     • Section 7
       • Applicability
         • Moving party must first establish the lawsuit or cause of action arises from a type of public expression or protected activity covered by the Act;
       • Exemptions
         • If the motion applies, the burden shifts to the responding party (the plaintiff) to prove their claim is exempted from the statute’s coverage
       • If the Act applies and no exemptions dismiss, court will dismiss the lawsuit or cause of action if:
         • The responding party fails to establish a prima facie case; OR
         • The moving party establishes the responding party failed to state a claim upon which relief can be granted; OR
         • The moving party establishes there is no genuine issue of material fact, entitling them to judgment as a matter of law
     • Section 10
       • Governs mandatory (in the case of the movant) and conditional (in the case of respondent) awarding of court costs, attorney fees, and litigation expenses
       • If movant wins, UPEPA requires the judge to award the moving party their court costs, reasonable attorney fees, and other litigation expenses related to the motion
       • If court denies the motion, responding party can be awarded their costs and fees by the court only if the judge specifically finds that the motion to dismiss was frivolous or filed solely to delay the proceedings
       • Can you voluntarily dismiss a claim after an anti-SLAPP motion has been filed to avoid Section 10? NO
         • If plaintiff voluntarily dismisses a lawsuit or cause of action without prejudice the defendant is entitled to have the motion heard and seek fees;
         • If plaintiff voluntarily dismisses a lawsuit or cause of action with prejudice, defendant’s motion is deemed validated and defendant will be entitled to costs and fees under the statute
   • Exemption Screen:
     • Commercial Speech
       • The act’s protections do not apply to a cause of action against a person primarily engage in the business of selling or leasing goods or services
         • Communication must arise out of a communication related to: (a) the person’s sale or lease of goods or services; (b) a pitch, representation, or statement made for the purpose of promoting, securing, or completing a sale, lease, or commercial transaction
       • Primary factors evaluated by Courts
         • Speaker’s Identity: If the defendant a person or entity primarily engaged in the business of selling or leasing goods or services?
         • Intended audience: Was the communication primarily directed at actual or potential customers or clients to promote sales?
         • Content: Did the communication consist of representations of fact about the defendant’s or a competitor’s business operations, goods, or services, rather than a matter of public concern?
     • Government Enforcement
       • Carve-out stating the Act’s anti-SLAPP protections do not apply to legal actions brought by a government unit or its agents to enforce laws meant to protect against imminent threats t public health or safety
         • Does not negate UPEPA protections if a private citizen or journalist speaks out about the government or a public concern
     • Employee Capacity
       • The law strictly exempts causes of action asserted against a government unit or an employee/agent acting within their official capacity
         • If public servant is sued for speech or actions taken purely in their personal capacity, they may still be able to utilize UPEPA protections
2. Properly Pleading a Complaint to Survive Section 7
   • Specificity
     • General Pleading Standards/Notice Pleading is not Enough
       • Who – name the specific individuals or corporate entities
       • What – detail the exact statements or actions
       • When/Where – allege exact dates, times, locations
       • Facts Supporting Actual Malice (if applicable) – cannot survive UPEPA by merely alleging Defendants “knew” the statement was false or published with “reckless disregard.” There must be facts alleged that, if true, support the inference by clear and convincing evidence defendant knew the statement was false or acted with reckless disregard
       • Quantifiable Damages – Allege specific, quantifiable damages
   • Provide Affidavit/Evidentiary Support
     • While not required, attaching sworn affidavits, declarations, or key documentary evidence can bolster a claim – particularly in light of discovery stay that occurs upon the filing of a UPEPA application
3. Counseling Clients: Key Considerations and Risks
   • Assess Scope Early
     • Evaluate whether the targeted speech involves an issue of public interest or is made in a government proceeding, which places it under UPEPA
   • Advise Clients of Mandatory Recovery if UPEPA Movant is Successful
     • Advise clients that if the special motion to dismiss succeeds, recovery of attorney’s fees is guaranteed under the statute