5-14-09 James LoBiondo, Jr., et al. v. Grace Schwartz, et al.
(A-86/87-07)
The common law cause of action for malicious use of process,
although disfavored, is a viable response to Strategic Lawsuits
Against Public Participation (SLAPP) suits. The required
elements of the tort, namely, the filing of a complaint, without
probable cause, that was actuated by malice, that terminated in
favor of the party now seeking relief, and that caused the party
now seeking relief to suffer a special grievance must all be
proven but are refined by the Court to meet the circumstances of
a SLAPP suit. Thus, one who can demonstrate that his or her
right of free speech or to petition was actually infringed will
satisfy the special grievance element of the cause of action.
Moreover, the advice-of-counsel defense is a viable defense to a
SLAPP suit. If and when that defense is asserted, the party
seeking relief may also pursue a cause of action against the
attorney who was the source of the advice. When the target is
the attorney, a separate evaluation of the proof that the
original claim was actuated by malice is required, focusing on
the motivation of the attorney, with the need to demonstrate
that the attorney’s primary motive was an improper one.
