HB 1475-FN - AS INTRODUCED

2024 SESSION

24-2610

10/05

HOUSE BILL 1475-FN

AN ACT relative to preventing strategic lawsuits against public participation.

SPONSORS: Rep. Corcoran, Hills. 44; Rep. Potucek, Rock. 13; Rep. Booras, Hills. 8; Rep. Plett, Hills. 29

COMMITTEE: Judiciary

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.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

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) The purpose of this statute is to ensure full participation by citizens and organizations in the robust discussion of issues in furtherance of the right of petition, and of the rights of freedom of speech and of expression in connection with any matter of public concern. This statute recognizes that such litigation is disfavored and should be resolved quickly with minimum cost to those exercising their rights protected by the First Amendment to the U.S. Constitution or Part I, Article 22 of the New Hampshire Constitution. In furtherance of this purpose, in any case in which a party asserts that the civil claims, counterclaims, cross claims or pre-suit discovery against said party are based, either in whole or in part, on said party’s exercise of its right of petition, or of its rights of freedom of speech or freedom of expression in connection with any matter of public concern under the Constitution of the United States or of the State of New Hampshire, said party may bring a special motion to dismiss.

(b) 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.

(c) This immunity may be invoked by a defendant, respondent, or counter-defendant at any time, but it can be waived if the defendant, respondent, or counter-defendant substantially litigates the case beyond a jurisdictional challenge before raising the immunity, unless facts later develop demonstrating the immunity should apply, and such facts were not available to the defendant prior.

(d) This immunity may be invoked by making a showing that a claim or counterclaim is based upon the defendant, respondent, or counter-defendant’s use of the rights afforded under the First Amendment to the U.S. Constitution or Part I, Article 22 of the of the New Hampshire Constitution.

(e) This immunity may be invoked so long as a claim, action, proceeding, or counter-claim is based upon at least one act in furtherance of these rights, even if the claim, action, proceeding, or counter-claim is also based on acts not in furtherance of these rights.

(f) This immunity may only be overcome by a showing by the plaintiff, respondent or counter-plaintiff that the claim or counterclaim is of sufficient merit, with prima facie evidence, there is a probability of prevailing on the claim or counterclaim. If invoked in federal court or in a court outside the State of New Hampshire, the plaintiff must show that the claim can survive a motion to dismiss or a motion for summary judgment, or analogous motion, as applicable.

(g) 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 in the state courts of New Hampshire and, to the fullest extent permissible, in the jurisdiction in which the matter is pending.

(h) If a defendant or counter-defendant 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 well as all actual costs, disbursements and reasonable attorneys’ fees expended in any successful appeal. The rights and remedies of this statute apply to claims or actions brought by the state of New Hampshire or its subdivisions against any person or entity and, to the fullest extent possible, sovereign immunity for the recovery by such defendant or respondent of fees, costs, and damages provided in this statute is hereby waived.

(i) If a defendant, respondent or counter-defendant successfully disposes of all claims or counter-claims by a party brought against it under this section, the defendant or counter-defendant may recover all actual costs, disbursements, and reasonable attorneys’ fees incurred in defending itself from the claims or counter-claims, regardless of whether such costs, disbursements, or attorneys’ fees are related to a motion under this section.

(j) If fewer than all claims or counterclaims are disposed of under this section, the defendant or counter-defendant may only recover those costs, disbursements, and attorneys’ fees incurred in connection with dismissing the claims that are deemed to be violative of the anti-SLAPP law.

(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, or if in an arbitration or administrative proceeding, by their analogous procedures. The party invoking this immunity may also bring a counterclaim for violation of the anti-SLAPP law.

(l) No government entity nor government employee acting in their official capacity may enjoy this immunity nor any provision under this statute. However, it may be freely employed against any governmental entity or employee.

507-H:2 Anti-SLAPP Procedural Rules. The purpose of this section is to provide procedures through which RSA 507-H:1 will apply in all courts in this state.

I. In federal courts and in foreign jurisdictions, these procedural rules are severable from the anti-SLAPP substantive immunity established in the foregoing section. In New Hampshire state courts, and wherever these rules are not in conflict with those of the tribunal, 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, or both.

II. A special motion to dismiss may be filed 7 days after notice of an intent to bring an Anti-SLAPP motion is served upon the plaintiff or counter-plaintiff (or other authority bringing the claim).

III. If a special motion to dismiss is filed, the court 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; or

(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 all other portions of the case, including discovery and motion practice 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. The purpose of this section is to provide a positive cause of action for persons who have been aggrieved by a SLAPP suit, but require additional remedies to be made whole.

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 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 the anti-SLAPP statute, 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:

(a) A claim was filed,

(b) There was an anti-SLAPP motion filed (or an equivalent in federal court), and

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. If any citizen of this state is sued in another jurisdiction outside this state, and that citizen raises the anti-SLAPP protections in RSA 507-H 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 courts in New Hampshire.

(b) The defendant or counter-defendant in the foreign action invoked 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.

(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 these 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.

507-H:4 Retroactivity. The provisions of this chapter shall apply to all actions pending in the state of New Hampshire on the effective date of this chapter and, to the fullest extent permissible, to actions pending in federal courts and foreign jurisdictions.

2 Effective Date. This act shall take effect January 1, 2025.

LBA

24-2610

12/1/23

HB 1475-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to preventing strategic lawsuits against public participation.

FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None


Estimated State Impact - Increase / (Decrease)
	FY 2024	FY 2025	FY 2026	FY 2027
Revenue	$0	$0	$0	$0
Revenue Fund(s)	None
Expenditures	$0	Indeterminable	Indeterminable	Indeterminable
Funding Source(s)	General Fund
Appropriations	$0	$0	$0	$0
Funding Source(s)	None
• Does this bill provide sufficient funding to cover estimated expenditures? [X] N/A • Does this bill authorize new positions to implement this bill? [X] No

METHODOLOGY:

The Judicial Branch states It is not possible to estimate how this change in law would impact the number of filings in the courts.

AGENCIES CONTACTED:

Judicial Branch