Kentucky Anti-SLAPP Laws Acts UPEPA

Kentucky Kentucky KentuckyAntiSlappActsLaws

KENTUCKY UNIFORM PUBLIC EXPRESSION PROTECTION ACT

KRS § 454.460 [Definitions]

As used in Sections 1 to 10 of this Act:

(1) “Cause of action” does not include:

(a) A procedural action taken or motion made in an action that does not amend or add a claim for legal, equitable, or declaratory relief; or

(b) Post-judgment enforcement actions;

(2) “Goods or services” does not include the creation, dissemination, exhibition, or advertisement or similar promotion of a dramatic, literary, musical, political, journalistic, or artistic work;

(3) “Governmental unit” means a public corporation, government, or government subdivision, agency, or instrumentality;

(4) “Matter of public concern” means a statement or activity regarding:

(a) A public official, public figure, or other person who has drawn substantial public attention due to the person's official acts, fame, notoriety, or celebrity;

(b) A matter of political, social, or other interest to the community; or

(5) “Person” means an individual, estate, trust, partnership, business or nonprofit entity, governmental unit, or other legal entity.

KRS § 454.462 [Protection of public expression]

(1) Except as otherwise provided in subsection (2) of this section, Sections 1 to 10 of this Act apply to a cause of action asserted against a person based on the person's:

(a) Communication in a legislative, executive, judicial, administrative, or other governmental proceeding;

(b) Communication on an issue under consideration or review in a legislative, executive, judicial, administrative, or other governmental proceeding; or

(c) Exercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, as guaranteed by the United States Constitution or Kentucky Constitution, on a matter of public concern.

(2)

(a) Except as provided in paragraph (b) of this subsection, Sections 1 to 10 of this Act shall not apply to a cause of action asserted:

1. Against a governmental unit or an employee or agent of a governmental unit acting or purporting to act in an official capacity;

2. By a governmental unit or an employee or agent of a governmental unit acting in an official capacity to enforce a law to protect against an imminent threat to public health or safety;

3. Against a person primarily engaged in the business of selling or leasing goods or services if the cause of action arises out of a communication or lack of communication related to the person's sale or lease of the goods or services;

4. Against a person named in a civil suit brought to establish or declare real property possessory rights, use of real property, recovery of real property, quiet title to real property, or other claims relating to real property;

5. Seeking recovery for bodily injury, wrongful death, or survival, or to statements made regarding that legal action;

6. Under the Kentucky Insurance Code or arising out of an insurance contract;

7. Based on a common law fraud claim;

8. Under KRS Chapters 401 to 407;

9. Under KRS Chapter 337, 338, 339, 342, 344, or 345, including claims of negligent supervision, retention, or infliction of emotional distress; wrongful discharge in violation of public policy; whistleblowing, including KRS 61.101 to 61.103; or enforcement of employee rights under civil service, collective bargaining, or handbooks and policies; or

10. Under the Kentucky Consumer Protection Act, KRS 367.110 to 367.300.

(b) Sections 1 to 10 of this Act apply to a cause of action asserted under paragraph (a) of this subsection when the cause of action is:

1. An action against a person arising from any act of that person, whether public or private, related to the gathering, receiving, posting, or processing of information for communication to the public, whether or not the information is actually communicated to the public, for the creation, dissemination, exhibition, or advertisement or other similar promotion of a dramatic, literary, musical, political, journalistic, or otherwise artistic work, including audio-visual work regardless of the means of distribution, a motion picture, a television or radio program, or an article published in a newspaper, Web site, magazine, or other platform, no matter the method or extent of distribution; or

2. An action against a person related to the communication, gathering, receiving, posting, or processing of consumer opinions or commentary, evaluation of consumer complaints, or reviews or ratings of businesses.

KRS § 454.464 [Special motion for expedited relief]

No later than sixty (60) days after a party is served with a complaint, crossclaim, counterclaim, third-party claim, or other pleading that asserts a cause of action to which Sections 1 to 10 of this Act apply, or at a later time on a showing of good cause, the party may file a special motion for expedited relief to dismiss the cause of action in whole or in part.

KRS § 454.466 [Stay; duration of stay]

(1) Except as otherwise provided in subsections (4) to (7) of this section, on the filing of a motion under Section 3 of this Act:

(a) All other proceedings between the moving party and responding party, including discovery and any pending hearing or motion, shall be stayed; and

(b) On motion by the moving party, the court may stay a hearing or motion involving another party, or discovery by another party, if the hearing or ruling on the motion would adjudicate, or the discovery would relate to, an issue material to the motion.

(2) A stay under subsection (1) of this section shall remain in effect until entry of an order ruling on the motion under Section 3 of this Act and expiration of the time under Section 9 of this Act for the moving party to appeal the order.

(3) Except as otherwise provided in subsections (5), (6), and (7) of this section, if a party appeals from an order ruling on a motion under Section 3 of this Act, all proceedings between all parties in the action shall be stayed. The stay shall remain in effect until the conclusion of the appeal.

(4) During a stay under subsection (1) of this section, the court shall allow limited discovery if a party shows that specific information is necessary to establish whether a party has satisfied or failed to satisfy a burden under subsection (1) of Section 7 of this Act and the information is not reasonably available unless discovery is allowed, including but not limited to situations where a witness may be unavailable or records may have been destroyed.

(5) A motion under Section 10 of this Act for costs, attorney's fees, and expenses shall not be subject to a stay under this section.

(6) A stay under this section shall not affect a party's ability to voluntarily dismiss a cause of action or part of a cause of action or a motion to sever a cause of action.

(7) During a stay under this section, the court for good cause may hear and rule on:

(a) A motion unrelated to the motion under Section 3 of this Act; and

(b) A motion seeking a special or preliminary injunction to protect against an imminent threat to public health or safety.

KRS § 454.468 [Hearing on motion for expedited relief]

(1) The court shall hear a motion under Section 3 of this Act no later than sixty (60) days after filing of the motion, unless the court orders a later hearing:

(a) To allow limited discovery under Section 4 of this Act; or

(b) For good cause shown.

(2) If the court orders a later hearing under subsection (1)(a) of this section, the court shall hear the motion under Section 3 of this Act no later than sixty (60) days after the court order allowing limited discovery, unless the court orders a later hearing under subsection (1)(b) of this section, in which case the hearing shall be scheduled in an expedited manner.

KRS § 454.470 [Proof; pleadings and evidence considered]

In ruling on a motion under Section 3 of this Act, the court shall consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment.

KRS § 454.472 [Dismissal of cause of action]

(1) In ruling on a motion under Section 3 of this Act, the court shall dismiss with prejudice a cause of action, or part of a cause of action, if:

(a) The moving party establishes under subsection (1) of Section 2 of this Act that Sections 1 to 10 of this Act apply;

(b) The responding party fails to establish under subsection (2) of Section 2 of this Act that Sections 1 to 10 of this Act do not apply; and

1. The responding party fails to establish a prima facie case as to each essential element of the cause of action; or

2. The moving party establishes that:

a. The responding party failed to state a cause of action upon which relief can be granted; or

b. There is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the cause of action or part of the action.

(2) A voluntary dismissal without prejudice of a responding party's cause of action, or part of a cause of action, that is the subject of a motion under Section 3 of this Act does not affect a moving party's right to obtain a ruling on the motion and seek costs, attorney's fees, and expenses under Section 10 of this Act.

(3) A voluntary dismissal with prejudice of a responding party's cause of action, or part of a cause of action, that is the subject of a motion under Section 3 of this Act establishes for the purpose of Section 10 of this Act that the moving party prevailed on the motion.

KRS § 454.474 [Ruling on motion for expedited relief]

The court shall rule on a motion under Section 3 of this Act no later than sixty (60) days after a hearing under Section 5 of this Act.

KRS § 454.476 [Appeal]

Any party may appeal as a matter of right from an order granting or denying, in whole or in part, a motion under Section 3 of this Act. The appeal shall be filed in accordance with the Kentucky Rules of Civil Procedure.

KRS § 454.478 [Costs, attorney’s fees, and expenses

On a motion under Section 3 of this Act, or the appeal of an order granting or denying a motion under Section 3 of this Act, the court shall award court costs, reasonable attorney's fees, and reasonable litigation expenses related to the motion:

(1) To the moving party if the moving party prevails on the motion; or

(2) To the responding party if the responding party prevails on the motion and the court finds that the motion was brought without good cause.

OVERVIEW

The Kentucky General Assembly has adopted the Kentucky Uniform Public Expression Protection Act, which provides the Bluegrass State with Anti-SLAPP legislation for the first time. This is the second enactment of the UPEPA, and follows that of Washington state which adopted the UPEPA about this time last year. Reportedly, at least five other states are considering the adoption of the UPEPA during the 2022 legislative term.

As with Washington, the Kentucky Assembly did not adopt the UPEPA verbatim, but instead made their own slight changes to the Act so as to respond to local concerns. While it is highly desirable that uniform legislation be wholly uniform, such is often unrealistic when it comes to important legislation such as the UPEPA that affects a broad variety of local interests. As I have previously written, the UPEPA drafting committee (on which I served as an American Bar Association Section Adviser) anticipated that the various states would adopt slight modification to the Act — mostly to the scope of the coverage or non-coverage of the Act — and therefore adopted a chassis approach such that these modifications could be made without unduly messing up the statutory scheme as a whole. This is largely what Kentucky has done.

Part and parcel of the chassis approach was the desire of the drafting committee that each state could effectively become its own test tube for what works or doesn't work in terms of Anti-SLAPP laws, with the other states (and eventually a drafting committee for a revised UPEPA) looking on to see the results. This effectively makes the UPEPA a dynamic statute, as opposed to many uniform acts where the law basically halts, or at least advances very slowly, upon their adoption.

To this end, Kentucky has already made some modifications to the UPEPA which look pretty good, and frankly I wish we had thought about when drafting the original Act. For instance, the Kentucky statute does not allow for a special motion to be brought in post-judgment enforcement proceedings, which would be an utterly ridiculous motion by a debtor who has already had the particular claim adjudicated against her. On the other hand, the Kentucky statute does not allow a special motion to be asserted in relation to an amendment that does not add a claim, the idea of course being that the responding party should have objected to the offensive cause of action immediately and not waited around until it was amended. The UPEPA drafting committee considered this idea, but rejected it on the grounds that a movant might not figure out that the cause of action impinged upon a protected area of expression until it was amended.

Kentucky also made some exclusions from the scope of their UPEPA, meaning situations in which the Act will not apply and thus no special motion will be available, in certain actions relating to real property rights (probably demanded by the local property lawyers bar), personal injury cases, insurance claims, common law fraud claims, whistleblower claims, and violations of the Kentucky Consumer Protection Act (these latter probably demanded by the local trial lawyers bar).

On the other hand, Kentucky added some protections for lawsuits relating to the distribution of certain media, as well as consumer opinions and reviews of businesses. These protections were arguably already found in the UPEPA, but if the Kentucky Assembly thinks it is a good idea to make these protections more clear, good for them.

Otherwise, the only other significant change that I could spot at a quick glance is that under the Kentucky UPEPA both the movant and respondent have a right to an immediate appeal. This is different from the UPEPA in that only the movant had a right to an immediate appeal, although the respondent could always take a special appeal by way of writ or suchlike. This isn't that big of a deal, and in fact the drafting committee itself went back and forth on the appeal rights of the various parties and considered this option, so we have a test tube there as well to observe.