Sat, 21 Dec 2019

Billionaire Sheldon Adelson Is Trying To Use An Anti-SLAPP Law To Get Out Of Paying Anti-SLAPP Damages And It Ain't Working
Furnished content.


Billionaire casino mogul Sheldon Adelson has been known to be a bit litigious at times. Way back in 2015, when there was an effort underway to overturn Nevada's very good anti-SLAPP law, there was speculation that Adelson was behind the effort, due to him losing a case thanks to that law. It turns out that the remnants of that particular case are still going, despite dating all the way back to events in 2012. The issue involves the National Jewish Democratic Council posting a link concerning operations in Adelson's Macau casinos. The case went through a variety of different courts and was dismissed under Nevada's anti-SLAPP laws.But a variation on that case continued because when NJDC then sought compensatory and punitive damages for the original SLAPP suit, Adelson tried to flip the script and argued (among many other things) that the lawsuit against him for such damages was, itself, a SLAPP suit. Earlier this fall, the judge said that's not how any of this works.

Adelson next moves for dismissal under Nevada's anti-SLAPP law. He puckishly avers that his initial defamation suit even though it was dismissed as a SLAPP was itself protected conduct under the anti-SLAPP statute. He therefore argues that he is entitled to dismissal of this damages suit because it, too, qualifies as a SLAPP.[....]Under Adelson's reading of these two provisions, any anti-SLAPP damages action can itself qualify as a SLAPP if the previously dismissed SLAPP was a good faith communication i.e., if the previous suit was not objectively baseless. (Dkt. No. 30 at 6.) This interpretation of the statute, however, creates an oddity. It would be peculiar, to say the least, if Nevada wrote its anti-SLAPP statute to shield litigants who file SLAPPs from liability in a subsequent anti-SLAPP damages action. The twin aims of the statute are to protect defendants from litigation costs and to deter plaintiffs from bringing SLAPP claims. John, 219 P.3d at 1281. Those compensatory and deterrent purposes would be substantially undermined if the statute's damages provision applied only to the subset of SLAPP lawsuits that could be demonstrated to be objectively unreasonable or brought in subjective bad faith.

Adelson has not even attempted to meet his burden of production. For example, in order to establish that the communication was made in good faith, the movant must provide evidence that the communication was truthful or . . . made without knowledge of its falsehood. ... But Adelson has not provided any evidence whatsoever written or oral, by witnesses or affidavits, ... that the allegations in his initial lawsuit were truthful or brought without knowledge of their falsehood. Thus, Adelson has failed to demonstrate that his initial lawsuit was a good faith communication. Because he has failed this threshold showing, Adelson's special motion to dismiss is denied.

Adelson descries an inconsistency. But these holdings are easily reconciled. At the time of Adelson v. Harris, the Nevada statute provided only that the special motion to dismiss was to be [t]reat[ed] . . . as a motion for summary judgment.... Accordingly, the Court in Adelson v. Harris properly applied the summary-judgment standard to conclude that Adelson fail[ed] to demonstrate a genuine issue of material fact on the issue of good faith.... In 2013, however, the Nevada legislature removed the language likening an anti-SLAPP motion to dismiss to a motion for summary judgment and set forth a specific burden-shifting framework.... Under that framework, it is now the movant's initial burden to establish[], by a preponderance of the evidence, that the claim is based upon a good faith communication.... In this case, Adelson submitted no evidence whatsoever on the issue. Accordingly, Adelson failed to meet his burden, as required by the post-2013 statute, and his anti-SLAPP motion was properly denied.

Further, as Plaintiffs correctly note, even if Adelson were deemed to have met his initial burden, he would still be disentitled to dismissal. The burden would then shift to Plaintiffs to demonstrate a probability of prevailing on the claim.... And because the sole precondition to prevailing on the claim for compensatory damages is the district court's grant of a special motion to dismiss, Plaintiffs would be able to do so.

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