Five Things to Know About Nevada’s Anti-SLAPP Statute

Nevada’s anti-SLAPP statute (NRS 41.635-670) provides litigants a method of challenging meritless speech-chilling claims (so-called “strategic lawsuits against public participation,” or “SLAPP” suits) at the outset of litigation. Here are five things to know:

1. It may be broader than you think. Is your client being sued because of…words? Whether spoken or written, whether in an angry post on Facebook or an award-winning documentary, if your client is being sued because of words (or any expressive activity), consider whether the statute applies. In addition to protecting speech to or about governmental bodies, the statute applies to any “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,” provided those statements are truthful or made without knowledge of falsehood. That said, a meritorious case will not be dismissed simply because your client’s speech falls within the statute.
2. Procedurally, it’s different. The anti-SLAPP statute has its own built-in deadlines and its own procedures. An anti-SLAPP motion is due within 60 days of service of the complaint. In considering the motion, the court will first examine whether the moving party has met its burden to show, by a preponderance of the evidence, that the plaintiff’s claim is based upon a communication as defined in the statute. If the moving party does so, the court will then examine whether the plaintiff has demonstrated with prima facie evidence a probability of prevailing on the claim. If the court denies the motion, the moving party can take an interlocutory appeal. If the court grants the motion, it must award attorneys’ fees, and may award an additional amount. There are other procedural differences, so be sure to take a close look at the statute.
3. Be careful in federal court. The Ninth Circuit has held that anti-SLAPP statutes apply only to state-law claims in federal court, and that the Rule 12(b)(6) standard or the Rule 56 standard, as opposed to the standard laid out in the statute, will apply. Some circuits have held that anti-SLAPP statutes don’t apply at all in federal court. There are other differences too nuanced to mention in this format, and some aspects are unsettled – be cognizant of your venue and research accordingly.
4. It applies to more than just defamation. Because people think of speech when they think of anti-SLAPP statutes, sometimes defamation or false light claims are all that come to mind. But many not-so-obvious claims may come within the ambit of the statute as well; the test is whether the claim is “based upon” a qualifying communication, not whether a specific cause of action is at issue. Courts have stricken a variety of claims, such as unjust enrichment and tortious interference with contractual relations, on the basis of anti-SLAPP statutes.
5. It’s changed over the years. Nevada’s statute has changed several times over the years, most significantly in 2013 and 2015. In reviewing case law, remember that older anti-SLAPP cases may be applying a different standard.

About the author

Bethany Rabe is an attorney in the Las Vegas office of Greenberg Traurig. She focuses her practice on entertainment-related litigation, including copyright, trademark, rights of publicity, defamation, and anti-SLAPP.