Posted by: Patricia Salkin | April 7, 2021

NV Supreme Court Concludes Anti-SLAPP Statute Protects Anti-Developer Comments on Nextdoor

This edited post is reposted with permission from the Rocky Mountain Sign Law Blog.  The original post was authored by Andrew L.W. Peters.

SLAPP suits prototypically arise when more powerful organizations bring doubtful claims against citizens who’ve criticized them, knowing the costs of litigation alone will silence the critics.  Most, but not all, states have Anti-SLAPP laws, and they all layer protections on top of the First Amendment’s right to petition.  Generally, Anti-SLAPP statutes supply defendants with a special motion to dismiss that operates in two steps:  first, the defendant must show that they engaged in speech, debate, or petitioning activity on an issue of public interest, and second, if they succeed, then the plaintiff must prove that its lawsuit enjoys a reasonable shot at success.  If it can’t, the suit is dismissed, and the defendants receive an award of attorneys’ fees and costs.  It’s strong medicine for would-be plaintiffs.

In a recent Nevada Supreme Court case, Olympia, a real estate developer, sued Michael Kosor, Jr., a resident in one of its developments, for defamation after Mr. Kosor criticized Olympia in public meetings and online.  His complaints concerned Olympia’s control of the development’s HOA, which he likened to “foreign dictatorship.”

After Olympia filed sued, Mr. Kosor sought dismissal under Nevada’s Anti-SLAPP statute, and the trial court granted it.  The question before the Nevada Supreme Court was whether the Anti‑SLAPP statute applied at all.  The Court concluded it did, providing guidance that could easily be applied in other states.

First, the court concluded Mr. Kosor’s statements were “made in direct connection with an issue of public interest.”  Although the case concerned a dispute between a private citizen and a private company, the court reasoned that issues of HOA governance, as well as alleged malfeasance and mismanagement, could affect Mr. Kosor’s 3,000-member community and were therefore sufficiently public.

Second, and more interestingly, the court concluded that Mr. Kosor’s statements on satisfied statute’s requirement that the protected statements be made in a “place open to the public or in a public forum.”  (Nextdoor is neighborhood-based social media platform that launched in 2011 with the prediction, “When neighbors start talking, good things happen.”)  Private websites don’t always, or even often, qualify as a public forum, but the court viewed Nextdoor as a place for the public to exchange ideas and solicit discussion.  Thus, Mr. Kosor’s statements in that forum received the same protections under the statute as they would have if he’d made them at a city council meeting.

The court ultimately remanded the case to the district court to make findings as to whether Mr. Kosor had made his statement in good faith (another statutory requirement) but assumed the statute would otherwise apply.

The case provides a reminder to real estate developers and managers:  retaliating against nettlesome community members can come at a high price.

Kosor v. Olympia Companies, LLC, 478 P.3d 390 (Nev. 2020)

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