SCOVT rules as a matter of first impression that anti-SLAPP statute does not apply unless there is a“public issue.”

Felis v. Downs Rachlin Martin, PLLC, 2015 Vt. 129 [10/16/2015]

DOOLEY, J. This case arises out of a divorce proceeding. Plaintiff claims fraud and breach of fiduciary duty by GFC, who was retained on behalf of plaintiff’s former wife to prepare business valuations related to the proceeding. GFC appeals the superior court’s denial of its motion to strike pursuant to 12 V.S.A. § 1041, Vermont’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law. We affirm.

This is our first opportunity to construe Vermont’s anti-SLAPP statute. The issue before us turns on whether plaintiff’s action is a SLAPP suit, as defined under § 1041. GFC contends that the plain language of § 1041(i)(1), which extends the protections of the statute to “any written or oral statements made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,” covers its testimony in the divorce proceeding.

Section 1041(a) provides that the statute applies to actions “arising from the defendant’s exercise, in connection with a public issue,” of free speech and petitioning rights. Section 1041(i), in turn, lists four specific types of activity. We conclude that the “in connection with a public issue” requirement of 12 V.S.A. § 1041(a) must be met in any motion to strike under the anti-SLAPP statute, regardless of the type of activity.

GFC presented expert testimony on the value of one of plaintiff’s businesses in order to support Ms. Felis’ proposed property distribution in a divorce order. The testimony was not “a matter of public significance.”

We reach this result as a matter of statutory interpretation in order to implement the intent of the Legislature in adopting the anti-SLAPP remedy and keeping that remedy within the bounds of the paradigm on which it was based.

How cited.