Key Takeaways:

• California’s anti-SLAPP statute is a procedural tool defendants can use to dismiss claims that implicate a defendant’s First Amendment rights

• In Wilson v. Cable News Network, Inc. et al., California’s Supreme Court ruled that a former employee’s retaliatory and discriminatory termination claim can be dismissed at the initial stages of litigation through the state’s anti-SLAPP statute

• The Wilson decision is good news for employers because it confirms employers can continue to bring anti-SLAPP motions seeking early dismissal of meritless lawsuits based on speech-based components of adverse employment actions

The California anti-SLAPP (Strategic Lawsuits Against Public Policy) statute is a procedural tool California defendants can utilize to quickly dismiss claims that implicate a defendant’s First Amendment rights. The purpose of the statute is to protect defendants from meritless lawsuits that might chill the exercise of their right to speak and petition on matters of public concern.

The anti-SLAPP analysis is two-fold. First, a defendant must establish that a plaintiff’s claim implicates an activity protected by the statute. Second, if the defendant makes this showing, the plaintiff must demonstrate that his or her claims have minimal merit. Filing of an anti-SLAPP brings about an immediate stay of discovery, and a successful motion may entitle a defendant to attorney fees.

In a recent decision, Wilson v. Cable News Network, Inc. et al., the California Supreme Court considered whether an ex-employee journalist’s allegedly retaliatory and discriminatory termination constituted conduct falling within the fourth category of protected activity under the anti-SLAPP statute. The plaintiff claimed that his employer CNN, a cable and Internet news organization, denied him promotions, gave him unfavorable assignments, and ultimately fired him for unlawful discriminatory and retaliatory reasons.

CNN filed an anti-SLAPP motion, arguing that its decision to terminate the plaintiff’s employment was in furtherance of a right to determine who should speak on its behalf on matters of public interest. The California appellate court held that the termination did not trigger anti-SLAPP as the plaintiff challenged the motivation behind the termination, and not the termination itself. The court reasoned that motivation was not “conduct” constituting protected activity. In fact, several other California appellate courts similarly held that the anti-SLAPP statute could not be used against discrimination or retaliation employment actions.

The California Supreme Court reversed the lower court’s decision and clarified that the anti-SLAPP statute contained no exception for discrimination or retaliation claims. The court held that a defendant’s burden in a discrimination suit is to show that the complained of adverse action, in and of itself, is an act in furtherance of its speech and petitioning rights. CNN argued that:

1. Its selection of journalists is conduct in furtherance of its exercise of speech rights; and
2. Its decision to enforce journalistic standards by terminating a writer for alleged plagiarism constituted conduct in furtherance of protected activity

The court rejected CNN’s first argument, but found that CNN’s second plagiarism rationale invoked the protections of the anti-SLAPP statute. Accordingly, the employer’s termination was protected activity under the anti-SLAPP statute, and subjected the claims based on the termination to early dismissal.

The Wilson decision is good news for employers because it confirms that employers can continue to bring anti-SLAPP motions seeking early dismissal of meritless lawsuits based on speech-based components of adverse employment actions.

To learn more about other procedural tools available to employers for early dismissal of litigation, please contact:

• Caroline J. Berdzik
• Peter J. Woo
• Stephen C. Mazzara
• Erica B. Row
• Kristin Klein Wheaton
• Or another member of our Employment and Labor practice