Daily Blast July 24, 2015

As previously reported, the Washington Supreme Court struck down the Washington Act Limiting Strategic Lawsuits Against Public Participation codified at RCW 4.24.525 (the anti-SLAPP statute) because it violates the right of trial by jury under Wash. Const. art. I, § 21 and is unconstitutional because it requires a trial judge to adjudicate factual questions in non-frivolous claims without a trial. Davis v. Cox, 183 Wn.2d 269, ___ P.3d ___ (2015).  On July 24, 2015, the Court determined the retroactivity of its decision in Davis in Akrie v. Grant, Supreme Court Cause No. 89820-1 (per curiam).

In Akrie, Scott Akrie and Volcan Group Inc. d/b/a NetLogix (collectively “Akrie”) sued a number of individual and corporate defendants (collectively “Grant”) alleging they twice transcribed Jason Dillon’s phone conversations without his permission thereby violating the privacy act, ch. 973 RCW. Dillon was not a party in the case. Grant moved to strike the claims under Washington’s anti-SLAPP statute and also moved to dismiss the claims pursuant to CR 12(b)(6). The trial court granted both motions and dismissed the claims with prejudice. Pursuant to the anti-SLAPP statute, the court entered judgment imposing a $10,000 statutory penalty, attorney fees, and costs. Akrie appealed and Grant cross-appealed. Akrie later withdrew his appeal.

On appeal, Grant argued each defendant was entitled to a $10,000 statutory penalty, for a total of $50,000, rather than the total of $10,000 the trial court awarded. The Court of Appeals agreed, reversing the trial court solely on the issue of statutory damages under the anti-SLAPP statute and remanding with instructions to enter judgment.

The Supreme Court granted Akrie’s petition for review; however, it stayed the case pending its decision in Davis. In light of Davis, it determined it was unnecessary to decide the proper amount of statutory damages under the anti-SLAPP statute because the statute is unconstitutional and thus no longer provides grounds for any award of damages. The question remained, however, whether Akrie could benefit from Davis when he did not appeal the statutory damages award. The Supreme court concluded the necessities of the case justified granting Akrie the affirmative relief of vacating the trial court’s award of statutory penalties, attorney fees, and cost. In particular, the Court noted the case was pending when it invalidated the anti-SLAPP statute and thus basic fairness demanded that it not sustain a penalty imposed pursuant to a statute it had held unconstitutional.

The Supreme Court remanded the case to the trial court with instructions to vacate any award of statutory damages, attorney fees, and costs. The trial court’s judgment dismissing Akrie’s claims with prejudice pursuant to CR 12(b)(6) remained undisturbed and was therefore final.

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