546 P.3d 311
Or. Ct. App.2024Background
- After divorcing, Peter Lowes and Amy Thompson entered into a settlement agreement with a mutual nondisparagement clause, incorporated into their judgment.
- Thompson allegedly breached this clause by making abuse allegations against Lowes to an Oregon Public Broadcasting reporter (published in an article) and in an email to Lowes’s colleagues.
- Lowes sued Thompson for breach of contract; Thompson responded with an anti-SLAPP motion targeting only the OPB article statements and also moved to dismiss the complaint.
- The trial court granted both motions, dismissing all of Lowes's claims.
- On appeal, Lowes argued the trial court erred in both granting the anti-SLAPP motion and dismissing for failure to state a claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of anti-SLAPP motion | Only covers OPB article claims | Should dismiss all claims | Only OPB article claims could be stricken |
| Waiver of anti-SLAPP rights by contract | Nondisparagement clause waives rights | Clause does not waive free speech/anti-SLAPP rights | Nondisparagement clause contractually waives those rights |
| Sufficiency of Breach of Contract Pleading | Pleaded causation & damages | Failed to plead causation & damages | Allegations sufficient at pleading stage |
| Need to Reach Likelihood of Success | Waiver alone defeats anti-SLAPP | Breach not likely; waiver insufficient | Finding waiver ends anti-SLAPP inquiry |
Key Cases Cited
- Tokarski v. Wildfang, 313 Or App 19 (Oregon anti-SLAPP cannot be used to strike entire complaint if motion targets only part)
- Handy v. Lane County, 274 Or App 644 (explains anti-SLAPP mechanisms and modeling after California law)
- Moyer v. Columbia State Bank, 316 Or App 393 (elements of breach of contract claim/pleading standard)
- Doe v. Portland Health Centers, Inc., 99 Or App 423 (damages for reputational and business harms available in breach of contract)