Revision: Oct. 16, 2023, 1:21 p.m.
2024 SESSION
24-2610.0
10/05
HOUSE BILL [bill number]
SPONSORS: [sponsors]
COMMITTEE: [committee]
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ANALYSIS
This bill establishes legal process for preventing strategic lawsuits against public participation (anti-SLAPP) as qualified immunity from suit, prosecution, and from liability for any defendant or counter-defendant in any action, case, claim, administrative proceeding, arbitration, or any other legal process that impacts their First Amendment rights.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-2610.0
10/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to preventing strategic lawsuits against public participation.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Anti-SLAPP Substantive Immunity. Amend RSA by inserting after chapter 507-G the following new chapter:
CHAPTER 507-H
Anti-SLAPP Substantive Immunity
507-H:1 Anti-SLAPP Substantive Immunity.
I. In this chapter, "SLAPP" means a strategic lawsuit against public participation.
II.(a) All laws of this state shall be construed to afford qualified immunity from suit, prosecution, and from liability for any defendant or counter-defendant in any action, case, claim, administrative proceeding, arbitration, or any other legal
process that impacts their First Amendment rights.
(b) This immunity may be invoked at any time, but it can be waived if the party substantially litigates the case beyond a jurisdictional challenge before raising the immunity.
(c) This immunity may be invoked by making a showing that any claim (including counterclaims or cross claims) is based upon the moving party’s use of the rights afforded under the First Amendment to the United States Constitution or the free speech provision of the New Hampshire Constitution.
(d) This immunity may be invoked so long as a the legal action is based upon at least one act in furtherance of these rights, even if the claim or counter-claim is also based on acts not in furtherance of these rights.
(e) This immunity may only be overcome by a showing that the claim or counterclaim is of sufficient merit that the plaintiff or counter-plaintiff can show, with prima facie evidence, a probability of prevailing on the claim or counterclaim. If in federal court, it should be a showing that the claim can survive a motion to dismiss or a motion for summary judgment.
(f) Given that this is a substantive immunity from suit, not just liability, any denial of a motion invoking this immunity shall be appealable on an interlocutory basis.
(g) If a defendant or counter-defendant (or respondent or any other term used for the recipient of legal process) successfully invokes this immunity, that defendant or counter-defendant shall be entitled to all actual costs, disbursements and reasonable attorneys' fees expended in the defense of the case as including those expended on any successful appeal.
(h) If a party is successful in defending themselves under this chapter, the party may recover all actual costs, disbursements, and reasonable attorneys’ fees incurred in defending itself, regardless of whether such costs, disbursements, or attorneys’ fees are related to a motion under this chapter.
(i) An anti-SLAPP motion shall be considered “successful” if the court (or other adjudicator) rules it so or if the non-moving party withdraws its claims after the motion is filed, but before it has been adjudicated.
(j) If fewer than all claims or counterclaims are disposed of under this chapter, the defendant or counter-defendant may only recover those costs, disbursements, and attorneys’ fees incurred in connection with a motion under this chapter.
(k) This immunity may be exercised either by a motion to dismiss invoking the immunity, a motion for judgment on the pleadings, or an early motion for summary judgment invoking the immunity. The party invoking this immunity may also bring a counterclaim for violation of the anti-SLAPP law under this chapter.
(l) No government entity may enjoy this immunity nor any provision under this statute. However, it may be freely employed against any governmental entity.
507-H:2 Anti-SLAPP Procedural Rules.
I. If an action is brought against a person in violation of the substantive immunity from anti-SLAPP litigation, the person against whom the action is brought may bring a special motion to dismiss or an anti-SLAPP counterclaim.
II. A special motion to dismiss must be filed within 90 days after service of the complaint or counterclaim, in the court’s discretion, at any later time upon terms it deems proper.
III. If a special motion to dismiss is filed, the court (or other presiding officer, if not in a court of law) shall:
(a) Determine whether the moving party has established by a preponderance of the evidence that the claim fits within the substantive immunity protections;
(b) If the court determines that the moving party has met the burden pursuant to subparagraph (a), determine whether the non-moving party has demonstrated with prima facie evidence a probability of prevailing on the claim;
(c) If the court determines that the non-moving party has established a probability of prevailing on the claim pursuant to subparagraph (b), ensure that such determination will not:
(1) Be admitted into evidence at any later stage of the underlying action or subsequent proceeding;
(2) Affect the burden of proof that is applied in the underlying action or
subsequent proceeding;
(d) Consider such evidence, written or oral, by witnesses or affidavits, as may be material in making a determination pursuant to subparagraphs (a) and (b);
(e) Except as otherwise provided in paragraph IV, stay discovery and all other motions pending:
(1) A ruling by the court on the motion; and
(2) The disposition of any appeal from the ruling on the motion; and
(f) Rule on the motion within 30 judicial days after the motion is served upon the plaintiff, with such time to be extended by good cause shown or as the court’s schedule requires.
IV. Upon a showing by a party that information necessary to meet or oppose the burden pursuant to paragraph III is in the possession of another party or a third party and is not reasonably available without discovery, the court shall allow limited discovery for the purpose of ascertaining such information.
(a) This showing must be demonstrated by separate motion, and must be
accompanied by an affidavit, signed under penalty of perjury, by the moving party
and the moving party’s attorney.
(b) This motion must lay out, with specificity, the discovery requested, the
reason the specific discovery is necessary, and why it cannot be gathered in any other way.
(c) If the motion lacks such specificity, it must be denied and the reasonable attorneys’ fees incurred in opposing it must be awarded to the non-moving party.
(d) Before bringing such discovery motion, the prospective moving party must meet and confer with the non-moving party in order to resolve the matter without a motion. If the non-moving party has unreasonably declined to agree to the discovery, the moving party shall be entitled to the reasonable attorneys’ fees incurred in bringing the motion.
V. If the court dismisses the action pursuant to a special motion to dismiss, the dismissal operates as an adjudication upon the merits.
VI. If the plaintiff or counter-plaintiff notices dismissal or moves to dismiss the action, or seeks to amend the complaint, after a special motion to dismiss is filed:
(a) Such notice of dismissal or motion to dismiss shall function as an admission that the special motion was meritorious, and thus the court must grant the motion.
(b) Such motion to amend shall function as an admission that the special
motion was meritorious as to any claims that the amendment would remove.
VII. The court may modify any deadlines pursuant to this section or any other deadlines relating to a complaint filed pursuant to this section if such modification would serve the interests of justice.
507-H:3 Separate Action or Counterclaim.
I. If any claim, action, administrative proceeding, arbitration, or any similar process of any kind is brought against a party, and that party wishes to invoke the anti-SLAPP law in this chapter by way of separate action or counterclaim rather than by separate motion, they may do so. Alternatively, this claim may be brought after the conclusion of the matter similar to a malicious prosecution claim.
II. If an action is brought and a party successfully invokes this chapter, that person may bring a subsequent separate action to recover any costs and fees that the trial court failed to grant.
III. The elements of this claim are:
(a) A claim was filed.
(b) There was an anti-SLAPP motion filed (or an equivalent in federal court).
(c) The motion was successful.
IV. If the claim is successful, the court shall:
(a) Award statutory damages of no less than $10,000.
(b) Award compensatory damages.
(c) Award the plaintiff additional damages in an amount calculated to deter the SLAPP plaintiff from bringing further SLAPP suits.
(d) Award the prevailing plaintiff attorneys fees and costs.
V. The motion shall be considered “successful” if a court rules it so or if the
plaintiff in the prior action withdraws its claims after the motion is filed, but before the court can adjudicate it.
VI. If any citizen of this state is sued in another jurisdiction outside this state, and that citizen raises the anti-SLAPP protections in this chapter, but the foreign jurisdiction declines to apply RSA 507-H, but that citizen ultimately prevails in the action, then that citizen shall have a cause of action against the plaintiff or counter-plaintiff in the foreign action, if the following are proven:
(a) The claim would have been subject to RSA 507-H, if it had been brought in the state or federal courts in New Hampshire;
(b) The defendant or counter-defendant in the foreign action invoked RSA
507-H;
(c) The foreign court declined to apply RSA 507-H;
(d) The New Hampshire defendant prevailed in that foreign action including obtaining a dismissal without prejudice or a dismissal for a lack of personal jurisdiction; and
(e) The New Hampshire defendant in the foreign action gave the plaintiff in the foreign action notice, in writing, that if the New Hampshire defendant in the foreign action prevailed, the New Hampshire defendant in the foreign action would bring a claim under this section.
(f) If the above 5 elements are proven by a preponderance of the evidence, then the plaintiff in this action shall be entitled to:
(1) Statutory damages of between $10,000 and $100,000;
(2) Damages in an amount equal to the actual costs, disbursements and reasonable attorneys’ fees expended in the foreign action, which were incurred after the giving of notice;
(3) All actual costs, disbursements and reasonable attorneys' fees expended in bringing the New Hampshire action; and
(4) Punitive damages.
2 Effective Date. This act shall take effect January 1, 2025.