No. 84679 

LED 

NOV 30 2023 

F 

ELIV 

CLERV 

BY 

ilEF DEPUTf CLERK 

RT 

139 Nev., Advance Opinion 53 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

LAWRENCE F. PANIK, AN 

INDIVIDUAL, 

Appellant, 

vs. 

TMM, INC., A NEVADA 

CORPORATION, 

Respondent. 

Appeal from a district court order denying an anti-SLAPP 

special motion to dismiss. Eighth Judicial District Court, Clark County; 

Gloria Sturman, Judge. 

Reversed and rernanded. 

Weide & Miller, Ltd., and F. Christopher Austin, Las Vegas, 

for Appellant. 

Lex Tecnica Ltd. and Adam R. Knecht and Vincent J. Garrido, Las Vegas, 

for Respondent. 

BEFORE THE SUPREME COURT, STIGLICH, C.J., and LEE and BELL, 

JJ. 

OPINION 

By the Court, STIGLICH, C.J.: 

Nevada's anti-SLAPP statutes are intended to protect citizens' 

First Amendment rights to petition the government for redress of 

grievances and to free speech by limiting the chilling effect of civil actions 

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that are based on the valid exercise of those rights in connection with an 

issue of public concern (SLAPP actions). 1997 Nev. Stat., ch. 387, at 1363 

(preamble to bill enacting anti-SLAPP statute). To achieve that intended 

goal, the statutes allow defendants to file a special motion to dismiss to 

obtain an early and expeditious resolution of a meritless claim for relief that 

is based on protected activity, as defined in NRS 41.637. NRS 41.650; NRS 

41.660. 

In this opinion, we clarify that the anti-SLAPP statutes do not 

exclude any particular types of claims for relief from their scope because the 

focus is on the defendant's activity, not the form of the plaintiff s claims for 

relief. The district court thus erred in concluding that the claims against 

appellant Lawrence F. Panik "do not fall within the categories of claims 

subject to the [a]nti-SLAPP statute," without further analysis. And because 

we conclude that Panik established by a preponderance of the evidence that 

respondent TMM, Inc. (TMMI) brought its claims based upon Panik's "good 

faith communication[s] ... in direct connection with an issue of public 

concern," NRS 41.660(1), we reverse the district court's order and remand 

with instructions to address prong two of the anti-SLAPP analysis.' 

FACTS AND PROCEDURAL HISTORY 

Panik is the president and CEO of nonparty Dimension, Inc. In 

2000, Panik and several other nonparties invested in a company, Digital 

Focus, Inc. (DFI), to purchase the license to a computer code (the Code). 

DF1 later transferred its interest in the Code license to nonparty Digital 

Focus Media, Inc. (DFMI), Dimension's predecessor-in-interest. TMMI 

purchased DFI and sued Dimension and DFMI in 2013 seeking to establish 

'Pursuant to NRAP 34(f)(1), we have determined that oral argument 

is not warranted. 

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its rights to the Code license (the 2013 lawsUit). The district court. found 

that Dimension owned the rights to the Code license, and this court 

affirmed. See TMM, _Inc. v. Dimension, Inc., Nos. 72025 & 72779, 2018 WL 

6829001 (Nev. Dec. 27, 2018) (Order of Affirmance). 

In 2019, Dimension brought the underlying action (the 2019 

lawsuit) against TMMI for abuse of process relating to the 2013 lawsuit. 

During settlement discussions, TMMI discovered that Dimension was in 

possession of several Code- derivatives that TMMI contends belong to it. 

Settlement discussions ceased, and TMMI filed counterclaims -against 

Dimension, alleging that Dimension converted the disputed Code 

derivatives from TMMI-. TMMI later filed a third-party complaint against 

Panik, asserting claims for trade libel, misappropriation of trade secrets, 

conversion; injunctive relief, abuse of process, and alter ego liability. TMMI 

alleged that Panik made statements to "current and prospective [TMMI) 

shareholders, directors, [and] officers" that Dimension, not TMMI; owns the 

exclusive rights to the Code and its derivatives and that TMMI was 

defrauding its- shareholders, directors, and officers by claiming it owned the 

dispUted derivatives. Panik filed an anti-SLAPP special motion to dismiss, 

arguing that TMMI filed its third-party claims in retaliation for Panik's 

alléged statements concerning the rights to the Code derivatives. Panik 

now appeals from the district court's order denying that motion: • 

DISPUSSION 

We review a district court's "decision to grant. Or deny An antiSLAPP special motion to dismiss de novo." Srnith v, Zilverberg, 137 Nev. 

65, 67, 481 P.3d 1222, 1226 (2021). We. also -review a district court's 

interpretation•of a statute de novo. Zohar v. Zbiegien, 130 Nev. 733, 737, 

334 P.3d 402, 405 (2014). Nevada.'s a nti-SLAPP statutes direct the district 

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court to conduct a two-prong analysis, where it must first "[d]etermine 

whether the moving party has established, by a preponderance of the 

evidence, that the claim[s are] based upon a good faith communication in 

furtherance of . . . the right to free speech in direct connection with an issue 

of public concern." NRS 41.660(3)(a). To meet the burden under the first 

prong, the defendant must show "that the comments at issue fall into one of 

the four categories of protected communications enumerated in NRS 

41.637."2 Stark v. Lackey. 136 Nev. 38, 40, 458 P.3d 342, 345 (2020). Once 

the defendant establishes that the communications fall within one of those 

categories, they must then demonstrate "that the communication• 'is 

truthful or [wa]s made without knowledge of its falsehood." .ïd. (quoting 

NRS 41.637). "[I]f the district court finds the defendant has met his or her 

burden" under the first prong, "the court must then 'determine whether the 

plaintiff has demonstrated with prima facie evidence a probability of 

prevailing on [its] claim[s]." Id. (quoting NRS 41.660(3)(b)). 

The district court erred in its interpretation and application of the antiSLAPP statutes 

Panik argues that the district court failed to apply the correct 

standard under the first prong of the anti-SLAPP analysis when it 

summarily concluded that the claims against Panik "do not fall within the 

categories of claims subject to the [a]nti-SLAPP statute." We agree. 

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2The four categories of protected communications are any 

(1) communication "aimed at procuring any governmental or electoral 

action"; (2) communication to government or political entities "regarding a 

matter reasonably of concern to" that entity; (3) "[w]ritten or oral statement 

made in direct connection with an issue under consideration by a legislative, 

executive or judicial body, or any other official proceeding authorized by 

law," and (4) "[c]ommunication made in direct connection with an issue of 

public interest in a place open to the public or in a public forum." NRS 

41.637. 

4 
"When interpreting a statute, we look to its plain language. If 

a statute's language is plain and unambiguous, we enforce the statute as 

written, without resorting to the rules of construction." Zilverberg, 137 Nev. 

at 72, 481 P.3d at 1230 (citation omitted). Nevada's anti7SLAPP statutes 

provide irnmunity "from any civil action for claims based upon" a person's 

protected good faith communications. NRS 41.650; see ctlso NRS 

41.660(1)(a) (providing that, when "an action is brought against a person 

based upon a [protected] good faith communication," that Person "may file 

a special motion to dismiss" the action). The statute's plain language directs 

courts to examine the substance of the defendant's communications, not the 

title of the plaintiff s claims for relief. NRS 41.660(3)(a) ("If a special motion 

to dismiss is filed . . ., the court shall. .. [d]etermine whether the moving 

party has established, by a preponderance of the evidence, that the Claim is 

based upon a good faith communication in furtherance of the right to 

petition or the right to free speech in direct connection with an issue of 

public concern . . . ."). As the California Supreme Court has explained in 

discussing California's similar anti-SLAPP statute, "[t]he ... statute's 

definitional focus is not th.e form of the plaintiff s cause of action but, rather, 

the defendant's activity that gives rise to his or her asserted liability--and 

whether that activity constitutes protected speech or petitioning." Navellier 

v. Sletten, 52 P.3d 703, 711 (Cal. 2002).3

NRS 41.660(3)(a) affords the defendant (the moving party) the 

opportunity to establish that the plaintiff's claims for relief are based upori 

3Given "the similarities between California's and Nevada's antiSLAPP statutes," this court has "routinely look[ed] to California courts for 

guidance in this area." Coker v. Sassone, 135 Nev. 8, 11, 432 P.3d 746, 749 

(2019). 

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protected good faith communications. That first step in the anti-SLAPP 

analysis necessarily looks beyond the fbrm of the plaintiff s claims for relief, 

which makes sense given the purpose of the anti-SLAPP statutes' specialmotion-to-dismiss procedure—to provide a mechanism for the expeditious 

resolution of meritless SLAPPs regardless of the form the SLAPP takes. See 

NRS 41.660(2) (allowing a defendant 60 days after service of a complaint 

based on the defendant's good faith communication in furtherance of 

petitioning or speech rights to file a special motion to dismiss). If the focus 

were instead on the form of the 'plaintiff s claims for relief, the plaintiff 

would be completely in control of the anti-SLAPP statutes' application. This 

would allow the plaintiff to circumvent the Legislature's intent to limit the 

chilling effect that SLAPPs have on the rights to petition and to speech and 

frustrate the quick resolution of meritless SLAPPs. Accordingly, 

"fclonsistent with the broad construction that the anti-SLAPP statute is to 

receive, [the statute] may apply to any cause of action." Thomas R. Burké, 

Anti-SLAPP Litigation § 4.1 (2022) (observing that anti-SLAPP protectiOns 

have been extended to over 40 different types of claims). Indeed, we have 

recognized that anti-SLAPP protections may apply in cases involving a 

variety of claims for relief. See, e.g., Zilverberg, 137 Nev. at 66-69, 481 P.3d 

at 1226-28 (defamation per se, conspiracy, and injunctive relief); Abrarns v. 

Sanson, 136 Nev. 83, 85, 458 P.3d 1062, 1065 (2020) (defamation, 

intentional and negligent infliction of emotional distress, false light, 

business disparageMent, civil conspiracy, and concert of action); Delucci V. 

Songer, 133 Nev. 290, 292, 396 P.3d 826, 828 (2017) (defamation and 

intentional infliction of emotional distress). 

Here, rather than evaluating the statements that are the has' is 

of TNIMI's third-party claims against Panik, the district court considered 

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whether those claims were of the type entitled to anti-SLAPP protections. 

Because the statutes do not limit anti-SLAPP protections to only certain 

claims for relief, the district court erred when it denied Panik's motion 

based on its finding that "the subject claims do not fall within the categories 

of claims subject to the [a]nti-SLAPP statute." 

Panik rnet his burden under the first prong 

Panik further argues that he met his burden under the first 

prong of the anti-SLAPP analysis. Under that prong, Panik was required 

to demonstrate by a preponderance of•the evidence that his statements fell 

within one of the four statutorily defined categories of protected speech. See 

NRS 41.637. TMMI alleged that Panik made statements to its 

shareholders, directors, and officers challenging TMMI's claim to the Code 

derivatives.4 We agree with Panik that such statements were "made in 

direct connection with an issue under consideration by a . . . judicial body," 

NRS 41.637(3), and thus fall within one of the statute's categories. Indeed, 

the statements were directly connected to the ultimate issue in TMMI's 

counterclaims in the 2019 lawsuit, and Panik made those statements to 

people with an interest in the litigation—TMMI directors, officers, 

shareholders, and potential shareholders. See Patin v. Lee, 134 Nev. 722, 

726, 429 P.3d 1248, 1251 (2018) (explaining that for a statement to be 

protected under NRS 41.637(3), "the statement must (1) relate to the 

4While the parties dispute whether Panik made the challenged 

statements, the court "must evaluate the communication as it is alleged in 

the plaintiff s complaint and in any of the plaintiff s clarifying declarations." 

Spirtos u. Yernenidjian, 137 Nev. 711, 715-16, 720, 499 P.3d 611, 616-17, 

620 (2021) ("[A] moving party's denial that he or she made the alleged 

statements has no relevance . . . ."). 

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substantive issues in the litigation and (2) be directed to persons having 

some interest in the litigation"). 

Panik also met his burden to establish that his statements were 

"truthful or made without knowledge of [their] falsehood." NRS 41.637; see 

also Coker v. Sassone, 135 Nev. 8, 12, 432 P.3d 746, 749 (2019) (recognizing 

this as part of the movant's burden). In particular, Panik offered the final 

judgment from the 2013 lawsuit, which held that Dimension was the sole 

owner of the Code license, as well as several addendums to the original Code 

license agreement that support his belief that Dimension is the sole owner 

of any Code derivatives, including those at dispute in TMMI's 

counterclaims. Panik also provided a declaration stating that he believes 

the statements concerning Dimension's exclusive rights are true. That 

evidence, "absent [any] contradictory evidence in the record," is sufficient to 

meet Panik's burden of showing that the statements were made in good 

faith. See Stark, 136 Nev. at 43, 458 P.3d at 347 (holding that "an affidavit 

stating that the defendant believed the communications to be truthful . . . is 

sufficient to meet [his] burden absent contradictory evidence in the record"). 

The district court applied an incorrect standard in evaluating TMMI's 

claims under the second prong 

Finally, Panik argues that the district court also erred when it 

evaluated TMMI's claims under the second prong because the court applied 

the wrong test, finding -that [TMMI's] claims [were] prompted by TMMI's 

good faith belief in material issues of fact." We agree. 

The language in the district court's order indicates that the 

court treated Panik's motion as one for summary judgment. Doing so 

ignores the statute's direction that, on the second prong analysis, the court 

must "determine whether the plaintiff has demonstrated with prima facie 

evidence a probability of prevailing on [its] claim [s]." NRS 41.660(3)(b). As 

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explained in Coker, while the previous version of NRS 41.660 "instructed 

courts to treat [a] special motion to dismiss as a motion for summary 

judgment, . . . [i]n 2013, the Legislature removed [that] language . . . and 

set forth [the] specific burden-shifting framework" noted above. 135 Nev. 

at 10, 432 P.3d at 748. 

Because the statute no longer directs district courts to treat a 

special motion to dismiss as one for summary judgment, the relevant 

inquiry is not whether the plaintiff can establish a genuine issue of material 

fact, but whether the plaintiff can produce prima facie evidence in support 

of its claims. Compare NRCP 56 (directing the district court to "grant 

summary judgment if the movant shows that there is no genuine dispute as 

to any material fact"), with NRS 41.660(3)(b) (requiring the plaintiff to 

demonstrate "a probability of prevailing on [its] claim[s]" with prima facie 

evidence). In conducting the second prong analysis, the •district court must 

"review each claim and assess the plaintiffs probability of prevailing," 

which "is determined by comparing the evidence presented with the 

elements of the claim." Zilverberg, 137 Nev. at 70-71, 481 P.3d at: 1229. The 

district court's analysis here did not comport with NRS 41.660's burdenshifting framework, as it failed to consider whether TMMI produced prima 

facie evidence sufficient to demonstrate that its third-party claims against 

Panik "have minimal merit." Id. at 70, 481 P.3d at 1229; see also Abrams, 

136 Nev. at 91, 458 P.3d at 1069 (adopting California's "minimal Merit" 

burden under the second prong of the analysis). 

COIVCL USION 

Nevada's anti-SLAPP statutes make clear that on prong one of 

the analysis, the district court's focus in evaluating a special motion to 

dismiss must be on the defendant's communications rather than the form 

of the plaintiff s claims. We conclude that Panik has met the burden under 

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the first prong of the anti-SLAPP analysis by demonstrating that the claims 

in the complaint are based on "good faith communication[s] ... in direct 

connection with an issue of public concern." NRS 41.660(1). Because Panik 

satisfied the burden under the first prong and the district court did not 

apply the correct analysis under the second prong of the anti-SLAPP 

analysis, we reverse the district court's order and remand this matter with 

instructions for the district court to determine, consistent with NRS 

41.660(3)(b), whether TM1V11 "has demonstrated with prima facie evidence 

a probability of prevailing on [its] claim[s]."5

, C.J. 

Stiglich 

We concur: 

5Given our disposition, we deny Panik's request for an award of 

attorney fees, costs, and an additional award under NRS 41.670(1), as that 

statute only authorizes the court to make such an award after it grants a 

special motion to dismiss. 

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