10/11/16

Effective as of July 1, 2016, the General Assembly added an attorney’s fees provision to a rarely used statute that provides immunity under certain circumstances for statements made at public hearings. That statute, Virginia Code § 8.01-223.2, was originally enacted in 2007 and provides limited immunity for certain business torts based solely on statements made at public hearings. The main section of statute provides:

A person shall be immune from civil liability for a violation of § 18.2-499 or a claim of tortious interference with an existing contract or a business or contractual expectancy based solely on statements made by that person at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body. The immunity provided by this section shall not apply to any statements made with knowledge that they are false, or reckless disregard for whether they are false.

The statute clearly has its roots in the First Amendment’s right to petition clause and the Noerr‑Pennington doctrine. Its effectiveness, however, seems limited and, with the exception of the attorney’s fees provision, arguably does nothing more than what the law already required. The amended statute now provides that, “[a]ny person who has a suit against him dismissed pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs.”

The statute, while seemingly helpful, appears to have limited utility given that immunity only applies when claims are based solely on statements made at a public hearing. As a practical matter, very few cases alleging a business conspiracy or a claim for tortious interference arise solely because of statements made at public hearings. Indeed, there only appears to be one reported case applying the statute, and the court found that the immunity was not available for precisely that reason. See Smithfield Foods, Inc. vs. United Food and Commercial Workers International Union, 593 F. Supp. 2d 840, 847 (E.D. Va. 2008).

Based on a review of the legislative history, it appears that the most recent change was intended to expand the scope of the immunity to make it more like Anti-SLAPP statutes in other states. For reasons not disclosed in that history, however, it appears that the change was limited to adding the attorney’s fees provision.

Even though the statute has limited utility, commercial litigators should be aware that it exists. You never know when that case will come along that falls squarely into the immunity afforded by the statute.

 

 

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