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Friends of Historic Glasgow (Delaware) Discussions DE Supreme Court Affirms SLAPP 8-23-2008 Last week, the Delaware Supreme Court affirmed without comment Vice Chancellor Leo Strine's convoluted, hair-splitting decision in the La Grange SLAPP suit that essentially called the case a ''draw''--though he did not use that exact language. While the plaintiff, Stephen Nichols, did not win anything against any of the defendants, and in fact he still owes FOHG members Susan and David Arday about $2100 in court costs that were awarded in 2007, when the lower court proceedings ended, the Ardays were left with many thousands of dollars in attorney's fees and other expenses for defending their First Amendment rights, and DE is left with a narrowed interpretation of its already weak anti-SLAPP statute. Furthermore, Nichols can write off his legal fees as a business expense, while none of the defendants receive any such tax subsidy. This is largely a win for the developer and his law firm (Saul Ewing), even though Nichols may not see it that way, as he failed to win any monetary damages and was unable to get an injunction against the Ardays to prevent their further petitioning activity. Because of the Chancery Court's decision being allowed to stand as written, there probably will be another SLAPP suit in DE within a few years. As soon as a pro-business law firm can find another situation where they can claim some sort of familial conspiracy is interfering with a development or business deal, they will probably do so, particularly since both the DE Chancery and the DE Supreme Court did not in any way consider the plaintiff's conduct in deciding that the case did not fit the definition of a SLAPP. The ''chill'' a developer can effect on public opposition by pursuing such legal action may be worth the effort and expense, especially if the case is allowed to drag on through discovery for over a year-and-a-half, like this one was. Because of this decision family members may not be able to voice a contrary opinion on a contract matter in DE without fear of being SLAPPed, since according to Strine, family members in contact with business principals ''are not the quintessential examples of SLAPP suit defendants.'' Instead, they may be held to the standards of a corporate fiduciary and be dragged into court and forced to prove they are not conspiring to deny a developer the fruits of his bargain, whether or not they were parties to or beneficiaries of the transaction. V.C. Strine's final written opinion can be read at: http://www.delawarelitigation.com/int139.PDF. It contains some out-of-context e-mail material that was lifted directly from the plaintiff's amended pleadings and reference to a previous trial involving the Ardays that should have been entirely irrelevant, but contains none of the defendants' rebuttal material, illustrating how favorably Strine viewed the plaintiff's pleadings despite the plaintiff's abject failure to prove his case. (Strine also extended the discovery period three times at the plaintiff's request, and allowed the plaintiff to copy the Arday's computer hard drives for no other reason than the plaintiff's claim that evidence he sought was ''missing'' from the initial discovery production--a claim that was false.) Although the developer technically lost on his claims of injurious falsehood, tortious interference, and a later added defamation count, the SLAPP suit, filed in late 2005, proved quite effective in suppressing additional public opposition that might have ensured better protection of the La Grange farm's historic and environmental resources. This is why SLAPP suits persist, even if they are ultimately unsuccessful in court, as this one was; they are just an acceptable cost of doing business when it comes down to suppressing public opposition that might otherwise derail a development project. -By Dorcas Black |
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