By S. Eliza James; Forrest Cressy and James, LLC, New Orleans, Louisiana.
Louisiana’s Anti-SLAPP (Strategic Lawsuits Against Public Participation), La. Code Civ. Pro.
Art. 971, is an extremely powerful tool for any litigator, no matter your practice area. For
plaintiffs, Louisiana’s Anti-SLAPP statute is especially useful in rendering dismissal of
reconventional demands, where the plaintiff (now defendant-in-reconvention) faces a claim of
defamation for filing their initial lawsuit. But practitioners beware, Louisiana’s Anti-SLAPP
provision has teeth and can have severe consequences- including dismissal with prejudice and
mandatory award of attorney’s fees and costs for the prevailing party- for litigants on both sides
of the “v”.
Louisiana’s Anti-SLAPP Statute
30 states and the District of Columbia have an Anti-SLAPP statute on the books (1). While these
laws vary in the breadth and construction, they all seek to limit SLAPP suits- or suits that are
brought for the purpose of censor or intimidation by causing one to expend considerable time
and resources in litigation. Anti-SLAPP laws are intended to protect the exercise of first
amendment rights by providing a mechanism for dismissal or narrowing of the scope of the
litigation at the onset of a case. This is of course different from the monthly money you give your insurance company – Those are your premiums.
In 1999, the Louisiana legislature enacted Acts 1999, No. 734 which codified Louisiana’s Anti-
SLAPP provision (2). The purpose of the legislation was to curb the rise in frivolous lawsuits that
tampered one’s exercise of free speech and chilled participation in matters of public significance
through abuse of the judicial process (3).
In 2004, the legislature amended the statute in two critical ways. First, it made the finding of a
“probability of success” in the context of the Special Motion to Strike, admissible iton evidence
at any stage of the litigation. Second, the attorney fee and cost provision was altered to make the
award mandatory to the prevailing party on the motion. This was a departure from the previous
iteration of the law where only prevailing defendants on a Special Motion to Strike could be
awarded attorney’s fees, absent a plaintiff defeating a motion and making an additional showing
that the special motion to strike was frivolous or filed to delay litigation.
Probability of Success Standard Under Recent Louisiana Jurisprudence
To succeed on a Special Motion to Strike, a defendant must show that the action that forms the
basis of the plaintiff’s petition arises from the exercise of his right to free speech regarding an
issue of public importance (4). The United States Supreme Court has described speech relating to
matters of public concern as speech “relating to any matter of political, social, or other concern
to the community” (5). Once the defendant meets this element for their initial claim, the burden then shifts to the plaintiff to show a “probability of success” on their claims alleged in the lawsuit.
Art. 971 limits the evidence a court can consider when determining the plaintiff’s probability of
success to “the pleadings and supporting and opposing affidavits stating the facts upon which the
liability or defense is based” (6).
Until recently, there has been little direction from Louisiana Courts about the standard for
determining a “probability of success” under art. 971, However, the issue has been confronted by
various federal circuits. The United States Fifth Circuit in Lozovyy v. Kurtz 813 F.3d (5 th Cir.
2015) summized that art. 971 does not permit a court to “weigh evidence, assess credibility, or
resolve disputed issues of material fact” therefore dismissal achieved by a Special Motion to
Strike was improper where a triable fact existed. The following year, the Court in Block v.
Tanenhaus, 815 F.3d 218 (5 th Cir. 2016) followed precedent established by Lozovyy by noting
that a non-movant's burden in opposing an art. 971 motion to strike is the same as that of a non-movant opposing summary judgment under Federal Rule of Civil Procedure 56. Therefore, to
defeat an art. 971 dismissal on a motion to strike, [a plaintiff] need only establish a genuine
dispute of material fact” (7).
While federal jurisprudence is persuasive, it is not binding on Louisiana courts (8). Moreover, the
holdings of Lozovyy and Block presented possible Erie considerations, which are not present
when a state court is tasked with interpreting and applying its own laws (9). In 2019, this issue came
squarely before the Louisiana First Circuit Court of Appeals in Rafferty v. Bennett, et. al., 2018
CW 1503 (La. 1 Cir. 2/15/2019) writ denied, 2019-0447 (05/20/2019). In Rafferty, plaintiff-in-
reconvention sued for defamation and malicious prosecution stemming from Rafferty’s lawsuit
alleging that she was raped by an on-duty police officer. The Special Motion to Strike was
granted by the trial court and the reconventional demand was dismissed with prejudice. Upon
review, the First Circuit reversed the trial court’s grant of the art. 971 Special Motion to Strike
by determining that the plaintiff-in-reconvention met “his burden as a genuine issue of material
fact existed which precluded the granting of the Motion” (10). Prior to Rafferty, Louisiana’s Third
Circuit Court of Appeals suggested that there are two different and distinct standards for art. 971
motions and motions for summary judgment under art. 966, but declined to define the standard
that should be applied when determining a plaintiff’s “probability of success” on their claim (11).
Should the First Circuit standard be adopted by other Louisiana Circuit Courts, significant issues
arise as to the utility of art. 971. The strict evidentiary provisions in art. 971(A)(2) and the time
period for filing a Special Motion to Strike (90 days after service of the petition, or by
permission of court) are intended to promote art. 971 motions as a speedy way, prior to incurring
costs related to discovery, of weeding out meritless claims (12, 13). While the motion is pending, the
evidentiary standard and moratorium on discovery create favorable scenarios for a plaintiff
surviving an art. 971 challenge by meeting the low threshold that a triable issue of fact exists.
Under this scenario, when allegations of a petition are denied and discovery has not commenced,
one could rightfully argue that most facts are at genuinely in dispute thereby defeating any art.
971 challenge. This scenario is at odds with the intention of the legislature in passing the Anti-
SLAPP statue since it could limit the utility of the Special Motion to Strike in weeding out
meritless claims.
Practitioners seeking dismissal via art. 971 motions need to be cautious given the ambiguity
about the probability of success standard in current Louisiana jurisprudence. Art. 971 is high risk
with the mandatory award of attorney’s fees for the prevailing party and inference of a
probability of success being admissible at all stages of trial where the motion was defeated. It is
also high reward where a litigant can achieve dismissal with prejudice and attorney’s fees and costs where the motion is successfully urged. Therefore, it is imperative that practitioners understand the evolving and nuanced area of caselaw regarding this article prior to filing a Special Motion to Strike.
1 “State Anti-SLAPP Reference Card.” Last accessed 6 Nov. 2019. https://anti-slapp.org/your-
states-free-speech-protection/.
2 La. Code Civ. Pro. Art. 971.
3 Acts 1999, No. 734 Sect. 2.
4 Kirksey v. New Orleans Jazz & Heritage Found., Inc., 116 So. 3d at 668 (quoting Melius, 980
So.2d 167, 171 (La. App. 4 Cir. 2008))
5 Connick v. Myers, 461 U.S. 138, 146 (1983).
6 La. Code. Civ. Pro. art. 971(A)(2).
7 Block v. Tanenhaus, 815 F.3d 218, 221 (5 Cir. 2016).
8 Exch. Nat. Bank of Chicago v. Spalitta, 321 So.2d 338, 342 (La. 1975).
9 Erie R. Co. v. Tompkins, 304 U.S. 64 (1964).
10 Rafferty v. Bennett, et. al., 2018 CW 1503 (La. App. 1 Cir. 2/15/2019), writ denied, 2019-0447
(05/20/2019).
11 Savoie v. Page, 2009-0415 (La. App. 3 Cir. 11/4/09), 23 So. 3d 1013, 1017.
12 La. Code Civ. Pro. art. 971(C)(1)
13 Lamz v. Wells, 938 So. 2d 792, 796 (La. App. 1 Cir. 6/9/2006).
S. Eliza James
Attorney at Law
Partner | FCJ Law Firm
Email: eliza@fcjlaw.com
Office: (504) 605-0777