UPEPA sec. 10 deals with costs, fees and expenses.
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This is my tenth installment of a series of articles that will explore the Uniform Public Expression Protection Act, or “UPEPA”. I must again give the caveat that while I served as an American Bar Association adviser to the drafting committee of the UPEPA, the comments and viewpoints herein are mine and mine alone, and are not those of either the Uniform Law Commission or the American Bar Association; further, others on the drafting committee might well disagree (perhaps vehemently) on certain points.

In our previous episode, The Uniform Public Expression Protection Act: Appeal and Error, we looked at how ? 9 of the UPEPA provides for a mandatory appeal of right by the movant if it loses, while a losing respondent is left with only those of an ordinary unsuccessful litigant. We will now explore the awarding of costs, attorney’s fees, and litigation expenses under ? 10.

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Section 10 of the UPEPA relates the awarding of costs, attorney’s fees and expenses. Subsection 10(1) governs the situation where the movant (defendant) wins, and subsection 10(2) governs the situation where the respondent (plaintiff) wins. We’ll get to those subsections below, but first let’s examine the main provision:

On a motion under Section 3, the court shall award court costs, reasonable attorney’s fees, and reasonable litigation expenses related to the motion:

This provision is relatively straightforward, mainly because costs, attorney’s fees and expenses are routinely dealt with by the courts, but let’s unpack it anyway.

“On a motion under Section 3”

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Section 10 only and exclusively operates to award costs, fees and expenses in those cases where there has been a special motion filed under ? 3 and not in any other. Thus, a party cannot attempt to bootstrap a bill of costs for those items to ? 10 unless they have arisen from a special motion.

“the court shall award”

There are two words here with is very important. The first important word is “shall” and it denotes that the award of costs, fees and expenses is mandatory if the conditions of either ? 10(1) or ? 10(2) are satisfied. If those conditions are met, then the court does not have any discretion in the decision whether to award costs, fees and expenses — although the court will have some discretion in the amounts to be awarded, and which of course is a quite different thing.

That the court has no discretion in the decision whether to award costs, fees and expenses is the result of a policy decision to, on the one hand, deter the filing of abusive litigation by the plaintiff in the first place (which is what ? 10(1) is all about) and to deter the filing of a frivolous or dilatory special motion by the movant (which is what ? 10(2) is all about). Thus, Comment 1 to ? 10 elucidates:

“The mandatory nature of the relief provided for by this section is integral to the uniformity of the Act. States that do not impose a mandatory award upon dismissal of a cause of action will become safe havens for abusive litigants. Without the prospect of having to financially reimburse a successful moving party, SLAPP plaintiffs will be able to file their frivolous suits in such states with impunity, knowing that, at worst, their claims will only be dismissed. But because moving parties would be financially responsible for the expense of obtaining that dismissal, the effect of the abusive cause of action is nevertheless achieved. The only way to assure a truly uniform application of the Act is to require the award of attorney’s fees to successful moving parties.”

The upshot is that the mandatory provision for awarding costs, fees and expenses is not merely compensatory, but also servers a significant deterrent purpose.

The second important word in this clause is “award” since it denotes that a party which is awarded costs, fees and expenses will end up with an enforceable money judgment for those things against the losing party, i.e., it is not treated as a fine or something where the money ends up in a court fund.

“court costs”

The term “court costs” is a generic term of art that has a particular meaning in each court, and which generally consists of things such as filing fees, appearance fees, court reporter costs (where the reporter is hired by the court), etc. These costs are typically tabulated by the court clerk. Thus, Comment 3 to ? 10: “The term ‘costs’ includes filing fees, as well as other monetary amounts a state may define as a ‘cost.’ “

“reasonable attorney’s fees”

Similarly, the term “attorney’s fees” is a generic one that has a particular meaning in each court, meaning of course the legal fees billed to the prevailing party. As Comment 4 to ? 10 states: “The term ‘attorney’s fees’ means the fees paid to the attorney to compensate for his or her time and effort in the prosecution or defense of the motion.”

There is, however, an additional qualifier in ? 10 and which is the term “reasonable”. Whether something is “reasonable” in ? 10 has two components: First, the amount of time that the prevailing party’s legal counsel spent on the matter has to be reasonable for the work product they produced and the time actually incurred on the matter at hearings or otherwise. Second, the attorney’s fees that were billed have to make sense within the overall context of the motion.

We are now finally at that place where the intent of a party comes into play in UPEPA. As I have mentioned previously, intent generally plays no role in the UPEPA, i.e., for purposes of deciding the special motion it doesn’t matter one whit why the plaintiff filed the motion, or why the movant filed the special motion, but here when we get to attorney’s fees (and expenses, as will next be mentioned) it does.

Take the example of where the plaintiff files a cause of action that technically infringes on some protected right of the defendant, but is a relatively minor part of the plaintiff’s action that overall isn’t anything like abusive litigation in the classic SLAPP sense. The sensible thing for the defendant’s attorney to do would be to either call the plaintiff’s attorney up, or send them a letter, requesting that the plaintiff delete the offending part of this cause of action. However, the defendant’s attorney doesn’t do that, but instead simply files a special motion ? spending a lot more time on it than the issue deserves, and ultimately prevails on the special motion. In such a case, in determining what is “reasonable”, the court should take into account the minor nature of the infraction upon the defendant’s protected rights, that the defendant’s counsel did not seek to contact the plaintiff’s counsel in advance of filing the motion to warn about the violation and seek a voluntary resolution, and in running up the bill in filing and litigation a special motion over an issue that the plaintiff probably would have voluntarily dismissed anyway ? and award the defendant the most minimal fees practical as being “reasonable”.

In stark contrast, let’s say that the plaintiff has filed a defamation action in obvious retaliation for some proper conduct of the defendant. The plaintiff and its counsel known exactly what they did and why, and there is no point in the defendant’s attorney in contacting them prior to filing a special motion. Here, the special motion requires a lot of work by defense counsel, and it is hotly contested by the plaintiff. In this case, the concept of “reasonable” would militate in favor of awarding the defendant all of its attorney’s fees, every last dime.

Which is all to say that when the court gets to the matter of attorney’s fees, the court should look at the totality of the situation and make an award of those fees with “reasonable” being determined by the totality of the facts and circumstances before the court.

“and reasonable litigation expenses”

The same term “reasonable” as applied to attorney’s fees likewise applies to litigation expenses, as described by Comment 5 to ? 10: “The term ‘litigation expenses’ means the hard costs an attorney incurs in the prosecution or defense of the motion. Typical expenses in a case can include copies and faxes, postage, couriers, expert witnesses, consultants, private court reporters, and travel.” Where the biggest battles of litigation expenses come up is in the area of experts because their fees can be so big (and even surpass attorney’s fees in some cases): Did the prevailing party really need the expert, and was the expert’s fees reasonable?

“related to the motion”

The phrase “related to the motion” strictly ties an award of costs, fees and expenses to those necessary for the prosecution or defense of the special motion, and not for any other purposes.

For instance, prior to filing its special motion (which is ultimately successful), the defendant drafts and files a motion to dismiss for lack of jurisdiction. Because this work does not relate to the special motion, the costs and fees for filing that motion may not be awarded under ? 10.

Now let us move on to subsection 10(1).

(1) to the moving party if the moving party prevails on the motion; or

This provision is self-explanatory: If the moving party prevails on the special motion, then the moving party gets its costs, fees and expenses (the latter two subject to the aforementioned “reasonable”) as a matter of right.

Note that the moving party must “prevail” (just as the respondent must) to be entitled to an award of costs, fees and expenses. Below we will discuss the situation where there is a mixed result, i.e., the movant’s special motion is not wholly successful and the respondent thus partially prevails on the motion as well.

Where things get more interesting is if the special motion is not successful, as provided in subsection 10(2):

(2) to the responding party if the responding party prevails on the motion and the court finds that the motion was frivolous or filed solely with intent to delay the proceeding.

The obvious thing which distinguishes ? 10(1) from ? 10(2) is that with the former the award of costs, fees and expenses is mandatory, whereas with the latter the (prevailing) respondent has to prove either one of two possible conditions to gain the same award.

“to the responding party if the responding party prevails on the motion”

As with the movant in ? 10(1), the responding party has to actually prevail on the motion to be entitled to an award under ? 10(2).

“and the court finds that the motion was”

This clause requires the court to make a specific finding that the special motion was either frivolous or dilatory, as will next be discussed. This is a very different situation than under subsection 10(1) where the court need not make any finding, since the mere fact that the movant prevailed itself entitles the award.

“frivolous”

The word “frivolous” is a well-understood term-of-art in the legal realm, which means that the position taken by a party is so bereft of legal or factual substance that the position should not properly have been taken in the first place. Thus, as applied here, “frivolous” means that the special motion was bereft of legal or factual substance and should not have been filed.

Because the movant’s initial burden is nothing more than to show that the complained-of cause of action falls with the scope of the Act, i.e., touches upon protected speech or conduct, the upshot is that a special motion will be “frivolous” when there is not even a good faith argument (much less a winning one) that the cause of action has touched upon protected speech or conduct.

For example, the plaintiff files a plain-vanilla breach of contract action against the defendant which does not touch in any way upon the defendant’s protected speech or conduct. However, seeking to have the case thrown out on other grounds early in the litigation, the defendant files a special motion which conjures up a flimsy and nonsensical argument about how the defendant’s protected speech and conduct were violated, but then goes on to argue the defendant’s main substantive point which has utterly nothing to do with that protected speech and conduct. In such a case, the special motion is “frivolous” for purposes of subsection 10(2).

“or filed solely with intent to delay the proceeding”

Similarly, a special motion that has no other purpose than delay of the litigation can likewise implicate subsection 10(2). For instance, a plaintiff could file a lawsuit seeking an injunction against some act about to be committed by the defendant, say, attempting to burn the grass off a field which will put the plaintiff’s nearby orchard at risk. The plaintiff files the lawsuit and seeks a temporary restraining order to prevent the fire to the grass, but before the TRO is heard the defendant files a special motion to strike even though there is no protected speech or conduct of the defendant implicated. In such a case, the special motion is dilatory. Notably, the motion is also frivolous, which illustrates that usually both elements (frivolous and dilatory) will be present, although only one such element needs to be satisfied for subsection 10(2) to be implicated.

This concludes out discussion of what is in ? 10 as it relates to awards of costs, fees and expenses. Now let us examine what is not included in ? 10, at least not expressly.

Where The Result Is Mixed

There will of course be cases where the special motion is only partially successful, which means that both the movant and respondent have “prevailed” in part. Section 10 does not address this outcome, but instead leaves the resolution to the sound discretion and common sense of the court.

Generally, and unless the unsuccessful part of the special motion was frivolous or dilatory, where the movant prevails on the special motion at all, then the movant should be determined to be the prevailing party, although here the court may temper the awarding of fees and expenses (but not costs, since those must be fully awarded) to the movant as to only what was “reasonable” ?meaning that the movant should be awarded its fees and expenses only to the extent that those were necessary to the part of the special motion upon which the movant prevailed.

Where this gets interesting is where the special motion succeeds in part, but the respondent is able to show that at least a part of the special motion was frivolous (but not dilatory, since if the special motion succeeded at all, it is unlikely that it was filed for dilatory purposes). In such a case, the court might offset some of the fees and expenses (but not costs) by way of the aforementioned “reasonable” analysis, if not make an award where the respondent walks away with a net recovery.

Again, and because it is probably impossible to draft something that could encompass the myriad situations in this area that might arise, Section 10 simply leaves this to the sound discretion and common sense of the court, which will presumably be guided by existing law in other areas as to such awards where there has been a mixed result.

Sanctions Against Counsel

The other major item that ? 10 does not address is that relating to sanctions against the counsel for either a plaintiff who has filed a cause of action that impinges upon the defendant’s protected speech or conduct, or counsel for a defendant who has filed a frivolous or dilatory special motion.

The drafting committee spent a goodly amount of time discussing this issue and considered many alternatives. In fact, your instant writer advocated early and often, to the drafting committee that such sanctions should be a part of UPEPA and probably in ? 10, based on your writer’s experience in dealing with judgment debtors who often bring abusive litigation against their creditors because, in part, they have little to lose in bringing such litigation no matter how ill-conceived because they aren’t paying the underlying judgment anyway and don’t care if they incur additional unpaid (or unpayable) liability ? but the attorneys for such debtors should know better and at least not assist them in such an endeavor, and the plaintiff might be broke and unable to pay but the debtor’s counsel probably will not be.

Ultimately, as has been noted, the drafting committee decided not to include attorney sanctions in UPEPA, largely based on the fact that there are existing mechanisms (Rule 11-type sanctions) that already exist to punish such counsel. Thus, Comment 2 to ? 10 states: “Nothing in this section should be construed to prevent a court, in appropriate circumstances, from awarding sanctions under other applicable law or court rule against a party, the party’s attorney, or both. For instance, many states have adopted court rules analogous to Fed. R. Civ. P. 11, and the constricted breadth of Section 10 should not act as a shield or restriction against the imposition of such sanctions where they would be otherwise warranted.”

As a practice matter, coordinating a motion for sanctions against counsel with a special motion to strike is more difficult than it sounds, since the special motion must be heard within a certain time period but a motion for sanctions is usually treated like any other motion for docketing purposes. Thus, a defendant seeking sanctions against an attorney who has brought abusive litigation must consider drafting their motion for sanctions and providing it to the plaintiff’s attorney before the special motion is filed, so that the plaintiff’s attorney can have the option of simply dismissing the offending cause of action under the Rule 11 “safe harbor” provisions.

Otherwise, if a special motion and a motion for sanctions have been filed, the defendant will need to consider whether tactically those motions should be heard at the same time, and thus seek to have the hearings on the motions consolidated on the hearing docket, or have them heard in seriatim ? noting that the latter may benefit from the issue preclusive effect regarding the propriety of the cause of action if the special motion is granted, although that means additional time wasted to attend a second hearing.

At any rate, the point is that if sanctions against counsel are sought, they will have to be sought outside the UPEPA and under other existing law, but the UPEPA in no way restricts the awarding of such sanctions in appropriate cases.

That concludes our discussion of ? 10, and in my final installment of this series on UPEPA, we will tie up a few loose threads and finally wrap up this series.

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