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Cynthia Hodges, J.D., LL.M., M.A.

A "SLAPP-back" is a countersuit in which the defendant in the original SLAPP sues the plaintiff for the injuries and losses caused by the SLAPP.[1] If one has successfully defended a SLAPP, and one can show that the SLAPP was brought for a purpose other than to resolve the issue by legal means, then a SLAPP-back can be filed to seek monetary damages, including pain and suffering. [2]

Oregon’s anti-SLAPP statute may be found at Oregon Revised Statutes §§ 31.150 through 31.155. [3] The statute protects any statement made in a public place in connection with an issue of public interest. [4] In Gardner v. Martino, 2005 U.S. Dist. LEXIS 38970 (D. Or. 2005), the court found that issues of consumerism, including complaints about products, are issues of public interest. [5]

Although some states specifically allow SLAPP-back suits, [6] Oregon’s statute is silent on the subject. Therefore, common law actions can be used to recover in a SLAPP-back. [7] The most common SLAPP-back claims are malicious prosecution and abuse of process. [8] However, defamation is another option, [9] as are intentional infliction of emotional distress, outrageous conduct, and conspiracy. [10]

Malicious Prosecution

The elements of malicious prosecution are (1) filing a lawsuit; (2) without probable
cause; (3) with malice; (4) that terminated in favor of the victim; and (5) resulted in
damages to the victim. [11]

Abuse of Process

The elements of abuse of process are (1) the willful use of the legal process; (2) which
is not proper; (3) for an ulterior motive or purpose. .


The elements for libel in Oregon appear to be that the plaintiff must prove:
a false and defamatory statement about the plaintiff was made;
which was an unprivileged publication to a third party;
the defendant acted intentionally or negligently; and

Intentional Infliction of Emotional Distress

To prevail on a claim of international infliction of emotional distress, a plaintiff must
generally show that (1) conduct is extreme or outrageous; (2) a causal connection
between the conduct and emotional distress; (3) the conduct results in severe distress;
and (4) the conduct was intentional or negligent. [12]

Outrageous Conduct

The plaintiff generally must prove: (1) the defendant engaged in extreme and
outrageous conduct; (2) the conduct was reckless or with the intent of causing the
plaintiff severe emotional distress; and (3) the plaintiff incurred severe emotional
distress. [13]


Plaintiffs must prove (1) that a conspiracy between two or more individuals existed;
(2) that specific wrongful acts (other torts) were carried out by the defendants
pursuant to the conspiracy; and (3) that the plaintiff was damaged as a result of such
acts. [14]


1 “What is a SLAPP?,” SLAPP Resource Center, 2006, http://web.archive.org/web/20070322111517/http://www.slapps.org/faq.htm
2 “What are SLAPPs?”, The Anti-SLAPP Resource Center, at http://www.thefirstamendment.org/antislappresourcecenter.html#What%20are%20slapps
3 “State Laws,” SLAPP Resource Center, http://www.slapps.org/stateLaws.htm [no longer available]
4 Id.
5 Id.
6 “What is a SLAPP?,” at http://web.archive.org/web/20070322111517/http://www.slapps.org/faq.htm
7 Id.
8 Id.
9 http://www.answers.com/topic/strategic-lawsuit-against-public-participation?cat=biz-fin
10 “What is a SLAPP?,” at http://web.archive.org/web/20070322111517/http://www.slapps.org/faq.htm
11 Id.
12 Id.
13 Id.
14 Id.

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Copyright © 2013 Cynthia Hodges, Esq. All Rights Reserved.