UPEPA Opinions New
UPEPAOpinionsNew
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The use of the black diamond ♦ symbol denotes an artificial intelligence ("AI") synopsis. Since AI is often inaccurate, AI-generated materials such as these synopsis should not be relied upon, and instead proper reference should be made to the underlying real-world materials. Use AI-generated content at your own peril!
Gopher Media LLC v. Melone, 2025 WL 2858761 (9th Cir., En Banc, Oct. 9, 2025) Ninth Circuit Interlocutory Appeal Anti-SLAPP
♦ The Ninth Circuit, sitting en banc, addressed whether a district court’s denial of a motion to strike under California’s anti-SLAPP statute is immediately appealable. The court overruled its prior precedent, Batzel v. Smith (2003), and dismissed the appeal for lack of jurisdiction. The court held that the denial of an anti-SLAPP motion does not satisfy the requirements of the collateral order doctrine for interlocutory appeal. First, the court found that the anti-SLAPP analysis—which requires determining if the claim arises from protected speech and if the plaintiff has a probability of prevailing—is not "completely separate from the merits" of the underlying action. The analysis involves questions "inextricably intertwined" with the merits, contradicting the separability requirement. Second, the denial is not "effectively unreviewable" on appeal from a final judgment. While delaying review may undermine the anti-SLAPP goal of protecting defendants from the burden of litigation, this interest does not justify immediate appeal under the narrow collateral order exception. The court noted that a successful defendant can still recover attorneys' fees after a final judgment. This ruling unifies the Ninth Circuit’s approach, meaning neither the grant nor the denial of a California anti-SLAPP motion is immediately appealable as a matter of right under the collateral order doctrine. The case was remanded to the district court. ♦
J&D Dental v. Hou, 2025 WL 2639538 (Minn.App., Sept. 15 2025) Minnesota UPEPA Anti-SLAPP
♦ The Minnesota Court of Appeals affirmed the denial of Liya Hou's motion to dismiss a defamation lawsuit filed by J&D Dental under the Uniform Public Expression Protection Act (UPEPA). Hou had posted multiple negative Google reviews about her dental treatment, and J&D Dental sued, claiming the reviews were defamatory. Hou sought dismissal under UPEPA, arguing her reviews constituted speech on a "matter of public concern," which is protected under the anti-SLAPP statute. The court established that determining if speech is a "matter of public concern" under UPEPA requires a case-by-case analysis based on the totality of circumstances, considering the content, form, and context of the speech, consistent with common-law defamation standards. Applying this test, the court found: (1) Content: The content weighed against protection, as the dominant theme of Hou's reviews was her personal grievance and dispute with the clinic, not a broader public issue. (2) Form: The form (posting on a public online review forum) weighed in favor of protection. (3) Context: The context weighed against protection, as the speech was confined to the relationship between the parties and lacked connection to broader public discourse. The court concluded that the dominant theme of Hou's speech was a personal complaint, not a matter of public concern. Therefore, the lawsuit fell outside the scope of UPEPA, and the district court correctly denied Hou's motion to dismiss. ♦
Valve Corp. v. Bucher Law PLLC, 2025 WL 1792620 (Wash.App., June 30, 2025). UPEPA Anti-SLAPP
♦ The Washington Court of Appeals reversed a trial court's denial of a motion to dismiss filed by Bucher Law PLLC and AFN Law PLLC. Valve Corporation had sued the law firms for tortious interference and abuse of process, alleging they improperly used Valve's "Steam" platform's dispute resolution agreement to pursue claims on behalf of thousands of customers. The appellate court found that the law firms' actions were protected by Washington's Uniform Public Expression Protection Act (UPEPA), an anti-SLAPP statute. UPEPA applies to lawsuits targeting activities protected by the First Amendment, such as petitioning the government or engaging in judicial proceedings. The court determined that the law firms' communications and conduct in initiating arbitration for their clients were related to judicial proceedings and constituted protected petitioning activity on matters of public concern, specifically alleged antitrust and consumer protection violations. Furthermore, the court found that Valve failed to establish an exception to UPEPA and that Valve's claims failed as a matter of law. Crucially, the court held that the law firms' actions were protected by the litigation privilege, which grants attorneys immunity for communications related to judicial proceedings. The court reasoned that the law firms' conduct was pertinent and material to the relief sought for their clients and that disciplinary avenues, such as sanctions or professional conduct proceedings, were available to address any alleged misconduct. Therefore, the court reversed the trial court's decision and remanded for dismissal of Valve's claims. ♦
Paucek v. Shaulis, 2025 WL 1298457 (D.N.J., May 6, 2025).
♦ Plaintiffs Christopher Paucek and Pro Athlete Community, Inc. (PAC) sued blogger Dahn Shaulis for defamation and tortious interference. Shaulis sought dismissal under New Jersey's anti-SLAPP statute (UPEPA) and attorney's fees. The court addressed two threshold questions. First, the court held that while some UPEPA provisions (e.g., heightened dismissal standards, discovery stays, interlocutory appeals) conflict with Federal Rules of Civil Procedure (Rules 12 and 56) and thus do not apply in federal court, UPEPA's mandatory fee-shifting provision does apply. This is because the fee-shifting is triggered if a defendant successfully dismisses the complaint under the non-conflicting Rule 12 or Rule 56 standards. The court reasoned that fee-shifting is a substantive state law, and UPEPA's severability clause allows for the application of its non-conflicting parts. The fee request, however, cannot be asserted as a counterclaim. Second, the court determined that New Jersey law governs the underlying claims. Applying New Jersey's choice-of-law rules, the court found a conflict between New Jersey, Maryland (Paucek's domicile), and Delaware (PAC's alleged principal place of business). Despite the presumptive rule favoring the plaintiff's domicile/principal place of business, the court applied New Jersey law. This was due to New Jersey's "most significant relationship" to the case, particularly its strong public policy interest in its broad anti-SLAPP law, the defendant's New Jersey domicile, and the origin of the alleged defamatory statements in New Jersey. ♦
Ferchichi v. Whataburger Restaurants LLC, 2025 WL 1350005 (Tex., May 9, 2025).
♦ The Supreme Court of Texas held that a motion to compel discovery and for associated monetary sanctions is not a "legal action" subject to dismissal under the Texas Citizens Participation Act (TCPA). The Court consolidated two cases with a common issue. In Ferchichi, plaintiffs in a personal injury suit filed a motion to compel a surveillance video and for sanctions against Whataburger. In Haven, an apartment complex owner filed a motion to compel documents and for sanctions against the mothers of student tenants who had criticized the complex online. In both cases, the targets of the discovery motions filed TCPA motions to dismiss, arguing the motions for sanctions were "legal actions" filed in response to their protected rights of petition and free speech. The respective courts of appeals agreed, reversing the trial courts' denials of the TCPA motions. The Supreme Court of Texas reversed the appellate courts. It analyzed the TCPA’s definition of "legal action," which lists specific filings like a "lawsuit, cause of action, petition, [or] complaint" followed by a catch-all for "any other judicial pleading or filing that requests... relief." Applying the ejusdem generis doctrine, the Court reasoned the catch-all must be limited to filings that are "like" the enumerated items—those that assert a substantive claim for relief (e.g., negligence or fraud). A motion to compel and for sanctions, the Court concluded, is a procedural tool ancillary to the main lawsuit, not a standalone substantive claim. Even with a request for attorney's fees, it does not become a "legal action" under the TCPA. The Court noted that applying the TCPA to such motions would subvert its purpose by halting litigation for interlocutory appeals over procedural disputes. The judgments were reversed and the cases remanded. ♦
Johnson v. Kearney, 2025 WL 1536078 (Ky.App., May 30, 2025).
♦ The Kentucky Court of Appeals reversed a trial court's decision denying attorney's fees under the Uniform Public Expression Protection Act (UPEPA) after a plaintiff voluntarily dismissed her lawsuit. Plaintiff Kelli Kearney sued defendant Sharon Muse Johnson, a political opponent, over campaign statements. Johnson filed a UPEPA motion to dismiss, arguing her statements were protected speech. The trial court, seeking to avoid UPEPA's mandatory fee provisions, suggested Kearney voluntarily dismiss her claims with prejudice, which she did. The court then ruled UPEPA was inapplicable. The appellate court held that UPEPA's plain language (KRS 454.472(3) and 454.478) explicitly mandates that a voluntary dismissal with prejudice establishes the UPEPA movant as the prevailing party, entitling them to attorney's fees. The trial court erred by ignoring this mandatory language and attempting to circumvent the statute. The case was remanded for a determination of Johnson's fees. ♦
Satz v. Keset Starr, 2025 WL 1522032 (N.J.App., May 29, 2025).
♦ The N.J. Appellate Division addressed whether a plaintiff's voluntary dismissal of a lawsuit prevents defendants from seeking attorney's fees under the Uniform Public Expression Protection Act (UPEPA), New Jersey's anti-SLAPP law. Plaintiff Allen J. Satz sued defendants for $30 million over a flyer related to a religious divorce. Defendants sought dismissal and fees under UPEPA, arguing the suit targeted protected speech. Satz then voluntarily dismissed his complaint. The trial court denied defendants' subsequent motion for UPEPA fees, mistakenly believing the dismissal precluded it and confusing UPEPA's standard with frivolous litigation. The Appellate Division reversed, holding that UPEPA explicitly allows defendants to pursue fees even after a voluntary dismissal (N.J.S.A. 2A:53A-55(b)). This prevents a "loophole" where SLAPP plaintiffs could avoid liability by strategically dismissing their cases. The court remanded, directing the trial judge to hear the defendants' UPEPA motion for fees and costs. ♦
Cook v. Trimble, 2025 WL 1287932 (Minn.App., May 5, 2025).
♦ The Court of Appeals of Minnesota reviewed a district court's denial of a special motion for expedited relief under the Minnesota Uniform Public Expression Protection Act (UPEPA). Respondent Dalvin Cook sued appellants (Gracelyn Trimble's attorneys and their law firm) for defamation and invasion of privacy. The claims stemmed from (1) statements made by appellants to the media in 2021 before filing a lawsuit on Trimble's behalf against Cook, and (2) statements made in a 2023 court filing in that lawsuit, which publicly disclosed Cook's settlement offers. The Court of Appeals held that: 1. Decisions on UPEPA special motions are reviewed de novo. 2. The judicial-proceedings privilege generally does not protect an attorney's statements to the media regarding a lawsuit; thus, it did not protect the appellants' 2021 media statements. However, Cook's defamation claim based on these statements failed because he, as a public figure, did not provide sufficient evidence of actual malice by clear and convincing evidence. 3. The judicial-proceedings privilege did protect the appellants' 2023 statements made in a court filing, leading to the dismissal of the defamation claim based on those statements. 4. Cook's invasion-of-privacy claim, based on the public filing of settlement offers, was not protected by the judicial-proceedings privilege (as it doesn't 'sound in defamation') nor was it dismissed on other grounds like attorney immunity or public concern at this stage. The court affirmed the denial of the motion to dismiss the invasion-of-privacy claim, reversed the denial regarding both defamation claims (effectively dismissing them), and remanded the case for further proceedings on the invasion-of-privacy claim." ♦
M.G. v. Bainbridge Island School Distr. #303, 2025 WL 892770 (Wash.App., March 24, 2025).
♦ This Washington Court of Appeals case, M.G. v. Bainbridge Island School Distr. #303, involves a lawsuit brought by M.G., Samantha Gerlach, and Suzanne Gerlach against the Bainbridge Island School District, Washington State HOSA, Naszya Bradshaw, and Eleanor Wilson, stemming from social media posts and related events in 2020 and 2021 concerning allegations of sexual assault involving Bainbridge High School students, including M.G.. The court addresses the application of Washington's Uniform Public Expression Protection Act (UPEPA), an anti-SLAPP law, to the case. The trial court granted Eleanor Wilson's and Naszya Bradshaw's joint UPEPA motion, dismissing all claims against them. The Court of Appeals affirmed the dismissal of claims against Wilson and Bradshaw, finding that their social media posts addressed a matter of public concern (sexual assault allegations and the school's response) and that the plaintiffs failed to establish a prima facie case of defamation or demonstrate that any UPEPA exceptions applied. ♦
UHS of Provo Canyon, Inc. v. Bliss, 2024 WL 4279243 (D.Utah, Sept. 24, 2024).
♦ This memorandum decision and preliminary injunction order from the United States District Court for the District of Utah concerns a lawsuit filed by UHS of Provo Canyon, Inc. ("Provo Canyon"), a youth residential treatment center, against Robert Bliss, a filmmaker. Bliss applied for and was briefly employed as a mental health technician at Provo Canyon. Provo Canyon alleges Bliss secretly recorded patients, staff, and confidential documents, intending to use the material in a future video. Bliss contends his actions were protected under Utah's Uniform Public Expression Protection Act (UPEPA), an anti-SLAPP law. The court addressed Bliss's motion to dismiss and Provo Canyon's motion for a preliminary injunction. The court found that UPEPA applied to some of Provo Canyon's claims (those not directly related to individual patient's protected health information), but ultimately denied Bliss's motion to dismiss most of the claims. The court found Provo Canyon had sufficiently pled claims for breach of contract, fraudulent misrepresentation, violations of state and federal wiretap acts, and conversion. The intrusion upon seclusion claim was dismissed because Provo Canyon, as a corporation, lacks standing to bring such a claim. The court granted Provo Canyon's motion for a preliminary injunction, ordering Bliss to return all recordings and confidential materials obtained at Provo Canyon and prohibiting him from disseminating any such material until further order of the court. The injunction allows Bliss's attorney to retain the materials for the purposes of litigation. Expedited discovery was also ordered to determine the extent of the materials Bliss possesses. The court balanced Bliss's First Amendment rights with Provo Canyon's need to protect patient confidentiality and the safety of its staff and residents. ♦
Davenport Extreme Pools & Spas, Inc. v. Mulflur, 2024 WL 2982718 (Ky.App., June 14, 2024).
♦ This Kentucky Court of Appeals opinion affirms the trial court's dismissal of a lawsuit filed by Davenport Extreme Pools & Spas, Inc. against the Mulflurs and others. Davenport alleged tortious interference and defamation stemming from negative online and private communications about their pool installation services. The trial court dismissed the case under Kentucky's Uniform Public Expression Protection Act (UPEPA), a new anti-SLAPP law. The appeals court held that: (1) UPEPA applies retroactively: The court found UPEPA to be a procedural, not substantive, change, thus it applies to events preceding its enactment. This contradicts a prior, non-binding opinion from the same court. (2) UPEPA does not violate jural rights: The act doesn't abolish or restrict existing common-law rights of recovery. (3) The communications were protected under UPEPA: The court rejected Davenport's argument that the communications were private and not protected. The court found the communications fell under UPEPA's broad definition of protected speech concerning matters of public concern, specifically consumer reviews. (4) The tortious interference claims failed: Davenport failed to establish a prima facie case, showing no causal link between the communications and the cancellation of a pool contract. (5) The defamation claims failed: The court deemed the allegedly defamatory statements to be non-actionable opinions based on known facts, not provably false statements. (6) The UPEPA fee provision is not unconstitutionally vague: The court found the statute sufficiently clear for courts to determine which fees are related to the UPEPA motion. (7) The award of attorney's fees was proper: The trial court did not abuse its discretion in awarding fees for the entire representation, not just the UPEPA motion. (8)The court lacked jurisdiction on the conversion of fees to a civil judgment: Davenport failed to file a separate notice of appeal regarding this issue. The court affirmed the trial court's decision in its entirety, except for the issue of converting the attorney's fees to a civil judgment, which it declined to address due to lack of jurisdiction. The court also denied a motion by the Mulflurs to take judicial notice of additional evidence. ♦
Peach v. Hagerman, 2024 WL 1748443 (W.D.Ky., April 23, 2024).
♦ This memorandum opinion and order addresses several motions in the case Peach v. Hagerman. Plaintiff Peach moved to dismiss the defendants' counterclaims for defamation, arguing the Kentucky statute of limitations barred them. He also moved to strike the defendants' untimely response and sought expedited review under Kentucky's Uniform Public Expression Protection Act (KUPEPA). The court denied Peach's motion to strike, finding the delay excusable due to a calendaring error and lack of prejudice to Peach. The court also denied Peach's motion to dismiss the counterclaims, holding that because the plaintiff's initial complaint was timely, the defendants' compulsory counterclaims, logically related to the original complaint, were also timely, even if filed after the statute of limitations had run on the underlying events. Finally, the court denied Peach's motion for expedited review under the KUPEPA, finding that the act's procedures are preempted by the Federal Rules of Civil Procedure because they create a higher burden of proof and evidentiary standards than those rules allow. The court reasoned that applying the KUPEPA would require treating the motion as a summary judgment motion, which would be premature given the pending discovery deadlines. The joint motion for a status conference was denied as moot. ♦
Thurman v. Cowles Co., 2024 WL 119333 (Wash.App., Jan. 11, 2024).
♦ This Washington Court of Appeals case, Thurman v. Cowles Co., concerns the application of the Uniform Public Expression Protection Act (UPEPA), designed to expedite dismissal of lawsuits targeting free speech. Thurman sued Cowles (publisher of the Spokesman-Review) for defamation and invasion of privacy after an article about his firing from the Sheriff's department. The court addressed several key issues: (1) Retroactivity of UPEPA: The court held that UPEPA applies to causes of action asserted on or after its effective date, even if the initial complaint was filed earlier. This means Thurman's amended defamation claim, though part of a pre-UPEPA lawsuit, fell under the Act. (2) Timeliness of UPEPA motions: Filing an amended complaint restarts the 60-day clock for filing a UPEPA motion for new claims, so Cowles' motion was timely. (3) Conflict with Court Rules: The court found that where UPEPA's procedural rules conflict with Washington Supreme Court rules (specifically regarding discovery and appeals), the court rules prevail. The UPEPA's automatic right of appeal from a partial denial of expedited relief was deemed inconsistent with existing appellate rules. (4) Constitutional Challenges: Thurman's constitutional challenges to UPEPA (access to courts, equal protection) were rejected. The court found that the UPEPA's temporary discovery stay didn't violate access to courts, and that the Act's differential treatment of plaintiffs and defendants in defamation cases involving public concern was rationally related to its purpose of protecting free speech. (5) CPA Claim and Attorney Fees: The court affirmed the dismissal of Thurman's Consumer Protection Act (CPA) claim, finding it barred by the First Amendment. The court remanded the case for consideration of Cowles' UPEPA motion regarding the defamation claim and ordered Cowles to receive attorney fees and costs related to the successful dismissal of the CPA claim. Further fees and costs will be awarded if Cowles prevails on the defamation claim. ♦
Torchstar Corp., Hyatech, Inc., 2023 WL 137762 (E.D.Wa., Jan. 9, 2023).
♦ Torchstar Corp. sued Hyatech, Inc. for copyright infringement and unfair competition related to the sale of LED products on Amazon. Hyatech counterclaimed for tortious interference, alleging Torchstar falsely accused them of infringement to get their products delisted from Amazon. Torchstar moved to dismiss Hyatech's counterclaim under Washington's anti-SLAPP statute (UPEPA), arguing their actions were protected petitioning. The court denied Torchstar's motion. It found the Noerr-Pennington doctrine (protecting petitioning of government) inapplicable to Torchstar's complaints to Amazon, a private entity. However, the court also found genuine issues of material fact existed regarding whether Torchstar's lawsuit constituted "sham litigation," preventing dismissal of Hyatech's counterclaim. The court determined that Hyatech had stated a valid cause of action and that there were genuine issues of material fact precluding summary judgment. Therefore, the court denied Torchstar's motion to strike and awarded no attorney's fees. ♦
Jha v. Khan, 2022 WL 16918101 (Wash.App., Div. 1, Nov. 14, 2022).
♦ This Washington Court of Appeals case, Jha v. Khan, concerns the first appellate application of the Uniform Public Expression Protection Act (UPEPA), a law designed to prevent Strategic Lawsuits Against Public Participation (SLAPPs). Siddharth Jha, a property developer, sued Varisha Khan, a political candidate, for invasion of privacy by false light based on statements Khan made about Jha in her campaign materials. These statements referenced a prior lawsuit against Jha alleging abuse and revenge porn. Khan moved to dismiss under UPEPA. The trial court denied the motion, finding material facts in dispute. The appeals court reversed. The court held that UPEPA applied because Khan's statements, made in a political campaign article criticizing her opponent, were on a matter of public concern. The court then found that Jha failed to establish a prima facie case of invasion of privacy by false light because he didn't prove Khan's statements were false. The court reasoned that the statement about the lawsuit was true, and the statement about Jha disregarding public transparency was an opinion. Furthermore, the court found Khan's statements were protected by the fair reporting privilege, as they were a fair abridgement of the New York lawsuit. Finally, the court held that the trial court erred by allowing Jha to amend his complaint after Khan's UPEPA motion was filed, as this violated the automatic stay provision of UPEPA. The case was reversed and remanded with instructions to dismiss Jha's claims with prejudice and award Khan attorney fees and costs at both the trial and appellate levels. ♦
Al-Albustani v. Alger, 2022 WL 3213331 (W.D.Wa., Aug. 9, 2022).
♦ Al-Albustani v. Alger, 2022 WL 3213331 (W.D.Wa., Aug. 9, 2022). (1) Background: Plaintiff alleges that Defendant made false and defamatory statements about him on a radio show, claiming he murdered his wife. Plaintiff sued Defendant for copyright infringement, violation of the Washington Personality Rights Act (WPRA), invasion of privacy by false light, intentional infliction of emotional distress, and negligent infliction of emotional distress. (2) Defendant's Motion: Defendant filed a motion to dismiss under the Washington Uniform Public Expression Protection Act (UPEPA), which is Washington's anti-SLAPP law. Defendant argued that her statements were opinions and that she did not mention Plaintiff by name. (3) Court's Ruling: The court granted Defendant's motion in part and denied it in part. Copyright Infringement: The court dismissed this claim with prejudice because Plaintiff abandoned it. WPRA: The court dismissed this claim without prejudice because Plaintiff failed to allege that Defendant used the deceased's name for advertising purposes. Plaintiff was given leave to amend this claim. Invasion of Privacy by False Light: The court denied the motion because Plaintiff sufficiently alleged that Defendant's statements were false and highly offensive. Intentional Infliction of Emotional Distress: The court denied the motion because Plaintiff sufficiently alleged that Defendant's statements were outrageous. Negligent Infliction of Emotional Distress: The court denied the motion because Plaintiff sufficiently alleged that Defendant's statements caused him emotional distress. (4) Key Takeaways: The court applied a two-pronged standard for UPEPA motions: If the motion challenges the legal sufficiency of a claim, the court applies the Rule 12(b)(6) standard; If the motion challenges the factual sufficiency of a claim, the court applies the Rule 56 standard and allows discovery. The court found that even opinion statements can be actionable under false light if they falsely express or imply provable facts about the plaintiff. The court found that a single, outrageous statement on a nationally syndicated radio show can be sufficient to state a claim for intentional infliction of emotional distress. The court found that PTSD can be sufficient to state a claim for negligent infliction of emotional distress. ♦
Project Veritas v. Leland Stanford Junior Univ., 2022 WL 1555047 (W.D.Wa., May 17, 2022).
♦ Project Veritas sued Stanford University and the University of Washington for defamation, alleging that they published a blog post and collaborated with the New York Times to discredit a Project Veritas video about alleged voter fraud. The district court dismissed the case with prejudice. It found that the statements in the blog post and subsequent New York Times articles were non-actionable opinions protected by the First Amendment, not factual assertions that could be proven false. The court applied Washington's anti-SLAPP statute (UPEPA) to Stanford's motion to dismiss, but not to the University of Washington's, finding that UPEPA did not apply to governmental entities. Subsequently, the court granted Stanford's motion for attorney's fees under UPEPA, awarding them $149,596.90. ♦