MCLE Self-Study: The Anti-SLAPP Statute: Much Worse, and Not As Bad, As You Think It Is

By John S. West

John S. West is a partner at the law firm of Allred, Maroko & Goldberg. He represents employees in disputes from the pre-litigation stage through trial and appeal. Mr. West has succesfully argued numerous matters in the courts of appeal (state and federal) and before the California Supreme Court. He speaks to bar groups on employment law subjects and regularly contributes articles to legal publications.

If you are an employment lawyer who represents plaintiffs, you might assume that your ethical compass is all you need to steer away from entanglement in California’s dreaded anti-SLAPP statute, Civil Procedure Code § 425.16. After all, your clients often assert claims under statutes such as the Fair Employment and Housing Act (FEHA), which reflects "the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination."¹ FEHA’s public policy seems on its face inconsistent with the policy behind the anti-SLAPP statute, which "reflects the legislative recognition that SLAPP suit plaintiffs are not seeking to succeed on the merits but to use the legal system to chill the defendant’s First Amendment rights."²

The Defendant’s Motives: Important or Irrelevant?