"As a lawyer licensed in five states (MA, FL, CA, AZ, and NV) and who practices free speech law nationwide, I am in a position to comment on the relative merits of various states' views on First Amendment principles. Among the many states where I have worked on cases, Flori-duh is the worst. Hands down.
It has no anti-SLAPP law to speak of. Its state legislation intended to deter frivolous litigation, Fla. Stat. 57.105, looks great on the books but is a "paper tiger." While the statute was amended in 2002 to give it some real teeth, the state judiciary generally does not apply it. As a result, Flori-duh is a hotbed of frivolous SLAPP litigation.
If Nevada does not update its anemic anti-SLAPP law, it bears the risk of becoming the Florida of the West – at least with respect to frivolous SLAPPs. That risk is laid bare for all to see in the recent case of Metabolic Research v. Ferrell, despite the fact that the Ninth Circuit seems to have tossed in a prescription to cure some of the symptoms of the Nevada anti-SLAPP statute's lack of a fully developed spine.
What Happened?
From the Ninth Circuit's opinion:
On October 20, 2009, Scott J. Ferrell, an attorney practicing law in Orange County California, sent “demand letters” to Metabolic Research, Inc. (“Metabolic”), at its address in Las Vegas, Nevada, and to General Nutrition Centers, Inc. (“GNC”), at its address in Pittsburgh, Pennsylvania. The demand letters purported to notify the recipients that they had violated California Civil Code §§ 1750-1756, the California Consumer Legal Remedies Act (“CLRA”), by falsely advertising the properties and potential benefits of a product named Stemulite, which they marketed as a natural fitness supplement. Ferrell represented that he was acting on behalf of Michael Campos, Thomas Hess, and Sarah Jordan, all of whom he alleged purchased Stemulite in California, in reliance on the supposed false advertising, and had not received the purported benefits.
Op. at 7027. Ferrell demanded that Metabolic and GNC "cease their false advertising of Stemulite" (Op. at 7027), identify purchasers of the substance, provide refunds to them all, disgorge profits from Stemulite sales, and implement a corrective advertising campaign. A failure to do so would be met with a lawsuit."
Source of Quotes on Nevada SLAPP Laws
http://www.citmedialaw.org/blog/2012/nevada-needs-revised-anti-slapp-statute-ninth-circuit-gives-us-some-daylight"The Court then went on to list the ways that Ferrell, and other similarly-situated defendants, might find justice. The Ninth noted that despite the fact that Ferrell couldn't appeal at this point, he still had a potential award of fees and costs later on. This might be true, but it is a small comfort if he can't afford to litigate the matter for that long. The Ninth then reminded us of the existence of Rule 11, the laughable sanctions mechanism in the Federal Rules. Rule 11 sanctions against even the most outrageous filings are slightly more common than rainbow sherbet flying out of a unicorn's ass.
The Ninth then threw in some very interesting dicta, in which it seemed to lay out an instruction manual for litigants (at least in Federal Court) who seek review of lower court decisions, when an anti-SLAPP statute fails to provide a right to an interlocutory appeal.
First, a litigant in federal court may ask the district court to certify and the court of appeals to accept an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) as involving controlling questions of law the resolution of which will speed the termination of the litigation. Secondly, in truly extraordinary cases, a writ of mandamus is available. 28 U.S.C. § 1651(a) (the All Writs Act codifying the common law writ of mandamus); Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 377 (2004). We have had recourse to the writ of mandamus to protect first amendment rights where we feared that the Mohawk decision foreclosed collateral order appeals. See Perry v. Schwarzenegger, 591 F.3d 1147, 1154-56 (9th Cir. 2010). Ferrell did not seek to avail himself of 28 U.S.C. § 1292(b), nor did he seek mandamus in this Court. We, therefore, express no opinion on how we might have decided such an appeal or application had one been brought. We conclude that an immediate appeal is not necessary to protect the rights in Nevada Revised Statute § 41.660.
Source of Quotes on Nevada SLAPP Laws
http://www.citmedialaw.org/blog/2012/nevada-needs-revised-anti-slapp-statute-ninth-circuit-gives-us-some-daylight
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