The Court of Appeals of Georgia has affirmed an award of attorney fees under the state’s anti-Strategic Lawsuit Against Public Participation statute against a collection attorney who argued that the Fair Debt Collection Practices Act preempted the fees.
The background: The dispute grew out of a routine debt-collection matter in which the plaintiff, a collection attorney, represented a creditor.
- The plaintiff sent a demand letter to a debtor and the debtor’s attorney warning of liability for his fees, and the debtor’s attorney consulted the defendant, an attorney familiar with the FDCPA, who replied alleging FDCPA violations in the letter.
- The plaintiff withdrew the letter, but the defendant filed a federal FDCPA suit on the debtor’s behalf, and the plaintiff then threatened to sue the defendant unless the parties settled and dismissed that federal case.
- When his demands were not met, the plaintiff, representing himself, sued the defendant and two others for $4 million, alleging defamation, intentional infliction of emotional distress, conspiracy, and tortious interference with business relations.
- The defendant moved to strike the suit under Georgia’s anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute. The trial court granted the motion, struck all claims, and later ordered the plaintiff to pay $71,610 for trial-level work and $87,817 to appellate counsel.
The ruling: The Appeals Court affirmed the fee award, rejecting the plaintiff’s argument that the FDCPA preempted fees owed under a state free-speech statute.
- Senior Judge Fuller of the Court of Appeals of Georgia, who wrote that the fee request was largely, if not entirely, unrelated to the FDCPA, put it bluntly: “This is not a debt collection case.”
- The plaintiff first argued that an earlier trial court ruling on preemption was binding because it had been affirmed on appeal, but the judge explained that only a court’s explicit holdings carry forward, and the earlier appeal had upheld the strike on unrelated grounds without ever deciding preemption.
- On the merits, the judge noted that the FDCPA displaces inconsistent state debt-collection laws only to the extent of the conflict, while the anti-SLAPP statute exists to protect speech and petition rights; because this was not an action by a debtor seeking protection from collection practices, no conflict existed.
- The plaintiff also argued the defendant should not recover fees for his own work because he lacked anti-SLAPP experience, but the judge held that attorneys who represent themselves are entitled to fees, quoting precedent: “Why should the prosecutor of a frivolous litigation claim be let off the hook simply because the victim of the litigation represented himself?”
- Fees under the anti-SLAPP statute are mandatory once the moving party prevails on a motion to strike, and they cover both trial and appellate proceedings.
