Summary
The Oregon Supreme Court addressed whether a nondisparagement clause in a stipulated divorce judgment constitutes a waiver of the procedural protections under Oregon’s anti-SLAPP statute. The court concluded that the clause did not clearly reflect an intent to relinquish statutory rights, thereby reversing the Court of Appeals' ruling that the waiver alone defeated the special motion to strike. The case was remanded for the appellate court to determine whether the plaintiff met his burden at the second step of the anti-SLAPP analysis.
Topics
Practice areas
Questions Presented
- Whether the nondisparagement clause in the stipulated dissolution judgment waived Thompson's right to invoke the procedural protections of Oregon's anti-SLAPP statute.
- Whether the nondisparagement clause alone defeated Thompson's special motion to strike after she satisfied the anti-SLAPP statute's first-step burden.
- Whether the Court of Appeals was required to determine whether Lowes established a probability of prevailing on his breach-of-contract claim under the second step of the anti-SLAPP statute.
Holdings
- A contractual nondisparagement provision in a stipulated divorce judgment does not waive the procedural protections of Oregon's anti-SLAPP statute unless the contract clearly indicates an intent to relinquish those statutory rights. The provision here did not clearly do so.
- After a defendant establishes that a claim arises from speech or conduct covered by ORS 31.150(2), the court must determine whether the plaintiff has established a probability of prevailing by presenting substantial evidence sufficient to support a prima facie case. A nondisparagement clause does not eliminate that required second-step inquiry.
Key quotations
“We conclude that the nondisparagement clause did not waive Thompson’s right to the procedural protections afforded by the anti-SLAPP statute, and thus the clause itself did not defeat her special motion to strike.” (32)
“Instead, we conclude—consistent with the California Supreme Court’s holding in Navellier—that, because Thompson met her initial burden of establishing that Lowes’s claim “arises out of” speech that is covered by subsection (2) of ORS 31.150, the Court of Appeals was required to determine whether the trial court erred in ruling that Lowes had not met his burden of establishing that he had a probability of prevailing on his claim.” (40)
Factual background
The parties married in 2013 and later entered a stipulated dissolution judgment containing a mutual nondisparagement provision. Thompson had previously obtained a domestic-violence restraining order against Lowes, and Lowes pleaded guilty to one count of fourth-degree assault before completing a deferred sentencing program and having the charges dismissed. During Thompson's campaign for county commission, she told a reporter that Lowes was her abuser and described his alleged domestic-violence conduct. Lowes alleged that those statements breached the nondisparagement clause and sought approximately $1.4 million in damages.
Procedural history
Lowes sued Thompson for breach of the nondisparagement clause in the parties' stipulated dissolution judgment, alleging that statements she made to a reporter about domestic violence breached the clause. The trial court granted Thompson's anti-SLAPP motion after finding that the claim arose from protected speech and that Lowes had not shown a probability of prevailing, and it also granted an alternative motion to dismiss. The Court of Appeals reversed in part, concluding that the contractual nondisparagement provision alone defeated the anti-SLAPP motion without reaching the second step. The Oregon Supreme Court affirmed in part, reversed in part, and remanded to the Court of Appeals.
Remand instructions
The case is remanded to the Oregon Court of Appeals to determine in the first instance whether the trial court erred in concluding that Lowes failed to establish a probability of prevailing on his breach-of-contract claim under the second step of ORS 31.150. The Court of Appeals may also address Lowes's argument concerning allegedly disparaging statements not protected by the anti-SLAPP statute, if necessary.