More than a SLAPP on the Wrist: Lessons from Nandigam v. Beavers
By: Eric C. Lyons, Member - Meridian Law
Last summer, the Tennessee Court of Appeals decided Nandigam Neurology, PLC et al. v. Beavers—the first case of its kind to uphold the dismissal of a lawsuit under Tennessee’s relatively new “anti-SLAPP” statute, the Tennessee Public Participation Act (“TPPA”) codified at Tenn. Code Ann. § 20-17-101 et. seq.[1]
Background
In 2019, Tennessee enacted the TPPA, commonly referred to as an “anti-SLAPP” statute in legal circles. The acronym “SLAPP” refers to “strategic lawsuits against public participation”—lawsuits filed to threaten critics or dissenters with not only monetary damages if the plaintiff wins but also the cost of hiring an attorney to defend against the lawsuit—regardless of whether the lawsuit has any legal merit.[2]
SLAPP claims typically proceed on defamation theories of liability—including libel (written statements) and slander (oral statements). The classic “SLAPP” archetype conjures the image of a business or wealthy individual suing an individual with more limited financial means to either punish that individual for speaking out or—more often—to intimidate them into silence. Such abuse of the judicial process can have a chilling effect on speech that should be protected by the First Amendment, not to mention the free speech rights under various state constitutions.
State legislatures began enacting anti-SLAPP statutes as early as the 1980s to combat SLAPP abuse. As of 2021, over thirty states have adopted some version of an anti-SLAPP statute.[3] The TPPA’s 2019 sponsors in the Tennessee legislature viewed it as necessary to address the ability of wealthy litigants to “silence whistleblowers, journalists, and political protestors” with “the threat of costly, time consuming, and expensive litigation.”[4] But the TPPA’s sponsors also explicitly stated that it was intended to protect citizens exercising their freedom of speech on more trivial matters, including—for example—bad Yelp.com reviews.[5]
How the TPPA Works
Tennessee’s anti-SLAPP statute offers defendants several means to protect themselves against a frivolous lawsuit.
First, the TPPA allows a defendant to petition the court to dismiss the SLAPP on the basis that it has been filed in response to the protected exercise of a right to freedom of speech, right to petition, or right of association. Unlike federal courts, Tennessee is a notice pleading state, which means in practice that the dismissal of a lawsuit at this early stage tends to be a relatively rare occurrence. However, the TPPA effectively shifts the burden back to the plaintiff to prove to the court that it has established each essential element of its claim. Even when the plaintiff has satisfactorily carried that burden, the court may still dismiss the case if the petitioning defendant establishes valid defenses. In stark contrast to the evidential limitations governing typical Rule 12 motions to dismiss, the TPPA permits defendants to advocate for dismissal with sworn affidavits or other admissible evidence, much like a motion for summary judgment. In laymen’s terms, a petition for dismissal under the TPPA potentially gives a defendant hope for a much speedier resolution of their case.
Second, the filing of the TPPA petition immediately stays all discovery, saving the defendant the time and considerable expense of serving and responding to interrogatories, requests for production, requests for admission, or even depositions until the petition has been resolved.
Third, the TPPA mandates that successful TPPA petitioners be awarded their court costs, attorney’s fees, discretionary costs, and other expenses they would otherwise have to pay out of their own pockets. The TPPA also permits courts to sanction SLAPP plaintiffs.
Finally, the TPPA allows a TPPA petition to be “immediately appealable as of right” straight to the Court of Appeals.
Facts
The Nandigam case arose after defendant Kelly Beavers filed a negative Yelp.com review of neurologist Dr. Kaveer Nandigam. Beavers and Nandigam had gotten into a disagreement over whether she could videotape her father’s doctor’s appointment, which she maintained was necessary due to her father’s neurological and memory issues.
In response to the bad review, Nandigam’s practice sued Beavers in general sessions court (sometimes called “small claims” court) for defamation, libel, false light, and conspiracy.[6] Beavers petitioned for dismissal under the TPPA and filed an affidavit stating that her Yelp.com review had been truthful and based on her observations.
Nandigam’s initial response to the TPPA petition committed several, ultimately fatal errors:
1. Nandigam incorrectly argued that the TPPA was a rule of civil procedure that did not apply in small claims court, when the TPPA is a statute that applies to all litigation.
2. Nandigam urged the Court to ignore Beavers’ affidavit because there is no discovery in general sessions, even though the TPPA expressly permits defendants to file affidavits in support of their petition.
3. Instead of taking the time to address the substance of Beavers’ petition by presenting proof, Nandigam relied entirely on these (incorrect) procedural arguments in his initial response.
The third error became the crux of Nandigam’s downfall. The TPPA required Dr. Nandigam to respond with substantive arguments “no less than five (5) days before the hearing.” But Nandigam delayed in filing any papers addressing the merits of Beavers’ petition until the afternoon before the second hearing, six days after the initial hearing. Nandigam’s response was too little too late, and the small claims court rejected his late-filed answer. Nandigam appealed.[7]
The Court of Appeals Decision
The Court of Appeals resolved two critical questions about the proper procedure under this new law.
First, even though general sessions decisions typically go to circuit court on appeal, the Court confirmed that all TPPA appeals immediately go straight to the Court of Appeals. Requiring small claims cases to “proceed through another layer of litigation in the circuit court” would directly contradict the purpose of the TPPA because “the point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.”[8]
Second, the Court of Appeals agreed with the small claims court that Nandigam had, at his peril, failed to respond to the merits of Beaver’s petition within the timeframe dictated by the TPPA. Nandigam’s procedural deficiency made dismissal “mandatory.”[9]
Third, as a matter of first impression, the Court of Appeals concluded that—to bolster its effect as a deterrent—the TPPA permits courts to award successful TPPA defendants their attorney’s fees in both the trial court and on appeal. This ruling is a massive win for TPPA defendants because appellate cases can take substantially more time and resources to prepare for than lower court decisions—particularly small claims cases.
But the Nandigam decision is also notable for what it declined to decide. Nandigam’s late-filed answer attempted to establish a prima facie case of defamation based on Beavers’ use of ironic air quotes around the word “Dr.” in her Yelp.com review and her claim that Nandigam “threw a temper tantrum” and “slammed things.” But because Nandigam filed his answer addressing these claims too late, the Court of Appeals did not need to examine whether this would pass muster under the TPPA and left it to future courts to decide what is and what is not enough to counter a TPPA petition.
Conclusion
Litigants and practitioners should pay heed to Nandigam and keep an eye out for future cases like it. Litigation is not always the answer. Had cooler heads prevailed, this SLAPP litigant may have been spared the headache of litigation, the considerable expenses of the other side’s legal fees, and unwanted negative publicity on a high-profile lawsuit—all over a review that ultimately is not even taken into account for the business’s Yelp.com star rating. Nandigam serves as a reminder to all would-be SLAPP litigants to think twice before using the judicial process to apply pressure to those who have spoken ill of them because the TPPA is a force to be reckoned with—even in small claims court.
[1] No. M202000553COAR3CV, 2021 WL 2494935, at *4 n.2 (Tenn. Ct. App. June 18, 2021).
[2] Id. (citations omitted).
[3] Id.
[4] Id. at *10.
[5] Id.
[6] Note that Nandigam had originally filed his lawsuit in circuit court, where Beavers first moved to dismiss under the TPPA. However, mistakenly believing that the TPPA was a procedural rule, Nandigam voluntarily dismissed the original lawsuit and refiled in general sessions court, where the rules of civil procedure do not apply. The Court of Appeals was unimpressed by Nandigam’s “forum shopping and gamesmanship.” Id. at *11 n.7.
[7] Nandigam first appealed the small claims judgment to circuit court, which is typically the appropriate procedure. However, the circuit court transferred the case to the Court of Appeals.
[8] Id. at *8, 11 (quotations omitted).
[9] Id. at *13.