/>iFactual Background & Procedural History
On May 29, 2025, the New Jersey Appellate Division issued a decision in Satz v. Starr (N.J. App. Div., Docket No. A-2785-23), permitting defendants the opportunity to pursue counsel fees, costs, and expenses under the Uniform Public Expression Protection Act (“UPEPA”). In October 2023, the plaintiff sued defendants after they circulated a flyer in their community advocating that plaintiff grant his wife a religious divorce. Id. at 2. Plaintiff alleged that the flyer contained an unflattering photograph of him and called for a protest outside of his parents’ residence. Id. Plaintiff’s complaint sought judgment for the removal of the flyer from circulation, termination of the protests, emotional distress, and $30 million in damages. Id.
Defendants, after all were served, sought to negotiate a briefing scheduling with plaintiff, but plaintiff failed to cooperate with the defendants. The defendants moved before the trial court to extend the time to answer the complaint. Id. at 3-4. Plaintiff filed opposition to the motion and cross-moved for entry of default judgment. Id. In opposition, the defendants argued they had a meritorious defense because the complaint infringed upon their protected First Amendment rights and was therefore subject to dismissal under the UPEPA. Id. Defendants included an order to show cause for dismissal of the action and requested counsel fees and costs as permitted under UPEPA. Id.
On January 24, 2024, the trial judge granted the defendants’ motion to file an answer and denied plaintiff’s cross-motion for entry of judgment. Id. That same day, before any ruling was made on the order to show cause, plaintiff voluntarily dismissed the complaint, stating that “it was clear once the judge grants orders that have no basis that this [case] will be going nowhere.” Id. On March 12, 2024, the defendants moved to re-open the matter for the limited purpose of considering the underlying application for counsel fees and costs. Id. The trial judge denied the application, indicating that the defendants had not answered the complaint and further interpreted defendants’ motion for fees as a request for sanctions based on frivolous litigation. Id. at 4-5. The defendants subsequently appealed the ruling, arguing that the voluntary dismissal of the complaint deprived them of their rights under UPEPA and provided a blueprint for other strategic lawsuits against public participation (“SLAPP”) to misuse the legal system in the same manner as plaintiff. Id. at 5-6.
What is The UPEPA?
The UPEPA, enacted in 2023, is New Jersey’s version of an anti-SLAPP law designed to protect individuals from lawsuits that aim to suppress and silence public expression. To date, thirty-five states and the District of Columbia have enacted legislation to ensure defendants facing First Amendment suppression are afforded expeditious and effective legal recourse if the complaint against them is meritless.
Under the UPEPA, a defendant in New Jersey is afforded three forms of protection in the early stages of litigation to ensure that lawsuits aimed at suppression of First Amendment activity are based on legitimate grounds: (1) a defendant may file an order to show cause within sixty days of service of the complaint requesting dismissal if the plaintiff fails to establish a prima facie case (N.J.S.A. 2A:53A-51-55); (2) in the event the order to show cause is denied, defendants are permitted an immediate right to appeal the trial court’s denial and the action is stayed pending appeal (N.J.S.A. 2A:53A-57); and (3) the UPEPA permits the award of legal fees and costs if defendants prevail in proving the case to be meritless (N.J.S.A. 2A:53A-58).
The New Jersey Appellate Division Ruling
Plaintiff argued on appeal that for the defendants to be awarded fees and costs, the dismissal of the action following the order to show cause must be initiated by the court. Docket No. A-2785-23 at 11-12. Upon review of the UPEPA’s plain language and the facts of the case, the Appellate Division reversed and remanded the matter for further proceedings. The Appellate Division noted that the plain language of the UPEPA (1) does not require the defendants to file an answer before moving to dismiss the complaint via order to show cause; and (2) that a voluntary dismissal does not impact the moving defendants’ right to obtain a ruling on the order to show cause and seek costs, attorney’s fees, and expenses related to same. Id. at 10-11.
Conclusion and Impact on Litigation
The Appellate Division’s ruling solidifies the rights of a defendant to seek fees and expenses if they find themselves subject to a frivolous SLAPP lawsuit. Now, whether a SLAPP plaintiff voluntarily dismisses a cause of action in anticipation of an unfavorable ruling or an application for dismissal is fully adjudicated, defendants undoubtedly are permitted to recover their costs and expenses incurred in defending against the suit. This ruling will serve as a strong reminder to prospective plaintiffs that frivolous litigation aimed at suppressing activity that is protected by the First Amendment will not be tolerated in the New Jersey courts.
