Anti-SLAPP Law: Not Applicable to Arbitration

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Overview of Anti-SLAPP

California’s Anti-SLAPP law protects against low-merit lawsuits designed to chill exercise of “a person’s right of petition or free speech” about “a public issue”. Example: If a person sues their former employer for having engaged in systemic wage discrimination and employer files a “counter-suit” with frivolous claims against employee.  Anti-SLAPP is designed to dismiss that “counter-suit” early.

The Recordings: Arbitration Evidence.

In a recent case, Zhang v. Jenevein (2019) 31 Cal.App.5th 585, the California Court of Appeal considered a case where recordings were allegedly made without consent and those recordings allowed into evidence in an arbitration (not a lawsuit in state or federal court).

Simplifying the facts a bit, the person alleging the recording was made without their consent then filed a lawsuit against his opponent in the arbitration.  The lawsuit claims were for recording confidential communications and invasion of privacy.

The defendant in this lawsuit (the alleged invader of privacy) attempted to use California’s Anti-SLAPP law to knock back the claims against him.  He claimed that the prior arbitration was a “judicial proceeding” or an “official proceeding authorized by law” – these were key pieces of his Anti-SLAPP defense.

Arbitration Does Not Trigger Anti-SLAPP.

The Court of Appeal dealt with these facts by citing to numerous cases in which it has been repeatedly held that arbitration is not, in fact, a “judicial proceeding”, nor does it qualify as an “official proceeding authorized by law”.

Since the prior arbitration was not a proceeding included by the Anti-SLAPP law, further litigation was allowed to go forward on the recording and privacy claims.

Analysis

Without going into the motives of the players in this particular drama, we must draw lessons from cases like this because our system is “precedential”.   It’s based on what happened in the last similar case.

Here, the precedent that is reinforced is that arbitration is a private proceeding that is entitled to fewer protections than would be accorded to a proceeding in a state or federal court.  

One of the protections that will not be afforded to you if you agree to arbitration (and go forward with an arbitration) is that of California’s Anti-SLAPP law.

There are issues that should be considered before signing away rights and agreeing to arbitration.  If you wish to speak with one of our knowledgeable attorneys, please contact us.

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