California Supreme Court Closes an Anti-SLAPP Loophole

The California Supreme Court began 2017 with a significant anti-SLAPP decision that confirmed the broad reach of the state’s statute designed to protect freedom of expression. In Barry v. State Bar of California, 2017 DJDAR 83 (Jan. 5, 2017), the high court ruled that a lack of subject matter jurisdiction over a claim does not preclude a court from granting a special motion to strike under the anti-SLAPP statute, or from awarding statutory attorney fees and costs to the defendant. The Barry decision closes the “loophole” of being able to defeat an anti-SLAPP motion simply because an improper lawsuit that actually suppresses expression is also jurisdictionally flawed. This latest ruling – decided in the context of attorney disciplinary proceedings – continues the trend of California Supreme Court opinions that favor an expansive reading of the anti-SLAPP statute, thus allowing greater use of the statute as a defensive tactic.