The Uniform Public Expression Protection Act: New Jersey’s Recently Enacted Anti-SLAPP Legislation

September 15, 2023 | Comments Off on The Uniform Public Expression Protection Act: New Jersey’s Recently Enacted Anti-SLAPP Legislation
Posted by Afiyfa H. Ellington

On September 7, 2023, New Jersey enacted the Uniform Public Expression Protection Act (“UPEPA”), which provides for an expedited procedural dismissal process against a party who has filed a Strategic Lawsuit against Public Participation (“SLAPP”), a lawsuit brought on by individuals and companies seeking to stop critics from making public statements against them.

The UPEPA applies to an individual or company who files a cause of action in a civil action lawsuit against another individual or company based on the person’s communications on an issue under consideration or review by any branch of government.  The UPEPA also protects the exercise of freedom of speech rights contained in the constitutions of the United States and the State of New Jersey.

Most importantly, the person who is served with a complaint, cross-claim, third-party complaint claim or other pleading that asserts a cause of action to which the UPEPA applies, is required within sixty (60) days of service (unless good cause is shown for an extension) to file an Order to Show Cause with the court seeking the dismissal of that cause of action.  The court may permit limited discovery if the parties require evidence to establish whether a party has satisfied or failed to satisfy the burden under the UPEPA. This process compels the court to set the hearing on an expeditious basis.

The court is required to dismiss the complaint or other pleading, with prejudice, if (1) the movant establishes that the UPEPA applies; (2) the responding party fails to establish that the UPEPA does not apply; and (3) either (a) the responding party failed to establish a prima facie case as to each essential element of any cause of action in the complaint or (b) the moving party establishes that (i) the responding party failed to file a cause of action upon which relief can be granted; or (ii) there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.  If the movant prevails on the Order to Show Cause, the court may award court costs, attorney’s fees and reasonable litigation expenses.

The UPEPA has a presumption that a stay of the court proceedings should be granted while the Order to Sow Cause is processed, so that the parties do not expend resources on discovery and hearings.  A party can appeal from a determination of the court on the Order to Sow Cause to the appellate court and the trial court may grant a stay on all proceedings between all parties until the conclusion of the appeal.

It is important to note that the UPEPA is a complex law and there are many factors that a court will consider when deciding whether to dismiss a SLAPP lawsuit.  If you are considering filing a complaint against an individual or company who is making a statement about a matter of public concern, GH&C is here to discuss whether the UPEPA may apply to your case and the impact such a claim may have on your case.

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