WILKES & McHUGH P.A. v. LTC CONSULTING, L.P.
306 Ga. 252
Ga.2019Background
- Wilkes & McHugh, P.A. and attorney Gary Wimbish ran full-page newspaper ads about deficiencies cited in government surveys of three Georgia nursing homes owned by LTC Consulting and affiliates.
- Plaintiffs sued for violation of OCGA § 31-7-3.2(j) (a 2015 law restricting use/reference to survey results in nursing-home ads), Georgia deceptive trade-practices and false-advertising statutes, and sought injunctive relief; the trial court issued a TRO and an expanded TRO enjoining the ads.
- Defendants filed an anti‑SLAPP motion under the revised OCGA § 9-11-11.1 (2016 amendment modeled on Cal. CCP § 425.16), arguing the ads are protected speech and also raising a First Amendment challenge to § 31-7-3.2(j).
- The trial court denied the anti‑SLAPP motion at the second-step merits stage without fully resolving threshold issues; defendants appealed and the case was transferred to the Georgia Supreme Court because of the constitutional-question component.
- The Georgia Supreme Court held defendants made the required threshold showing that the claims arise from protected speech (lawyer advertising re: public‑interest nursing‑home conditions), but vacated the denial because the trial court did not apply the correct two‑step anti‑SLAPP analysis and failed to address important statutory‑interpretation and constitutional questions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 9-11-11.1 applies (claims "arising from" protected activity) | Plaintiffs implicitly argued anti‑SLAPP not applicable or that the ads violated statutory limits so anti‑SLAPP should fail | Ads are protected speech (lawyer commercial speech) about public‑interest nursing‑home conditions, so anti‑SLAPP applies | Court: Defendants met threshold showing; ads could reasonably be construed as protected speech in connection with public‑interest issue (OCGA § 9-11-11.1(c)(4)) |
| Whether plaintiffs established a probability of prevailing (second‑step) | Plaintiffs relied on verified complaint and existing TRO to show probability of success under the statutes cited | Defendants argued plaintiffs failed to state/substantiate legally sufficient claims and raised First Amendment and statutory‑scope defenses | Court: Trial court did not properly apply step‑two standards; it failed to analyze legal sufficiency and prima facie evidence; remanded to reconsider under proper standards |
| Whether OCGA § 31-7-3.2(j) and related statutes apply to attorney advertising and survive constitutional scrutiny | Plaintiffs asserted statutes apply and support claims against defendants | Defendants contended § 31-7-3.2(j) is unconstitutional or inapplicable to lawyer ads; also argued ads substantially complied | Held: Court declined to decide on appeal; identified complex statutory‑interpretation and separation‑of‑powers and First Amendment questions that trial court must address first on remand |
| Procedural defects in trial court's anti‑SLAPP handling (scope of review, discovery, affidavits) | Plaintiffs treated complaint and TRO as sufficient for step two | Defendants argued trial court skipped threshold and misapplied anti‑SLAPP mechanics (e.g., consideration of pleadings and affidavits, proper burdens) | Court: Anti‑SLAPP two‑step requires (1) threshold showing that claim arises from protected activity, then (2) plaintiff must show legal sufficiency and prima facie facts; trial court did not follow required analysis and remand directed for proper application |
Key Cases Cited
- Florida Bar v. Went For It, 515 U.S. 618 (attorney advertising is commercial speech with First Amendment protection)
- Navellier v. Sletten, 52 P.3d 703 (Cal. 2002) (explaining anti‑SLAPP threshold: cause of action must be based on protected activity)
- Soukup v. Law Offices of Herbert Hafif, 139 P.3d 30 (Cal. 2006) (plaintiff must show legal sufficiency and prima facie facts at step two)
- Taus v. Loftus, 151 P.3d 1185 (Cal. 2007) (courts should not weigh conflicting evidence to decide step‑two probability)
- Briggs v. Eden Council for Hope & Opportunity, 969 P.2d 564 (Cal. 1998) (step‑two requires plaintiff to state and substantiate legally sufficient claim)
- City of Montebello v. Vasquez, 376 P.3d 624 (Cal. 2016) (treatment of plaintiff/defendant evidence in anti‑SLAPP second‑step analysis)
- RCO Legal, P.S., Inc. v. Johnson, 347 Ga. App. 661 (discussing Georgia application of current anti‑SLAPP standards)