Delaware Has Become Defamation Plaintiffs' Favorite Venue. Will The State's Newly Enacted Anti-SLAPP Statute Chill That Trend?

Reprinted with permission from the Delaware Business Court Insider © 2025 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

While Delaware has long been a favored place of incorporation for major media companies, it has only rarely been the chosen forum for defamation cases. That shifted following the 2020 election and the onslaught of defamation cases brought in the state's courts.

These politically charged defamation cases ushered in a new wave of Delaware defamation cases, including by California Gov. Gavin Newsom—seeking damages from Fox News for allegedly accusing Newsom of lying about calls with President Donald Trump—and President Emmanuel Macron and Brigitte Macron against conservative pundit Candace Owens, seeking recovery for repeated claims that France's First Lady is a man. Just this month, Saks Global Enterprises sued Puck over reporting on the luxury retailer's financial health, and conservative activist Robby Starbuck sued Google for defamation based on AI chatbot-generated content.

These and other headline-grabbing defamation cases have shined a bright spotlight on Delaware courts as a potentially plaintiff-friendly option for multi-state defamation claims. While the facts and damages alleged in each case may be unique, the circumstances that led to Delaware as the forum of choice are not.

Most major media companies are incorporated in Delaware, avoiding the jurisdictional challenges that plague plaintiffs in other states. The state also has a generous two-year statute of limitations and, until recently, no special laws for speech-related suits.

But that may change with Delaware's adoption of an anti-SLAPP statute based on the Uniform Law Commission's Public Expression Protection Act, or UPEPA.

Delaware UPEPA

UPEPA puts defamation plaintiffs on the hook for attorney fees if courts rule the defendants are immune from suit. The law passed both houses of the Delaware legislature unanimously, and Gov. Matt Meyer signed the bill into law on Sept. 15 with acknowledgment that UPEPA, along with another new statute intended to prevent school book bans, would "protect Delawareans' voices."

UPEPA is a model law the Uniform Law Commission adopted in 2020 to address what have been coined Strategic Lawsuits Against Public Participation, or SLAPP suits. These suits lack merit and can chill speech with resource-draining litigation. In developing the uniform law, drafters reviewed anti-SLAPP statutes that already had been enacted by states around the country, including California, Texas and Florida. The law's immunity—and the mandatory fee-shifting that comes with that immunity—is triggered whenever a plaintiff cannot make out a prima facie case, fails to state a claim as a matter of law, or is unable to show a genuine issue of material fact and the defendant is entitled to judgment as a matter of law. In addition to a fee-shifting provision, UPEPA provides defendants who file UPEPA motions an opportunity for interlocutory appeal of a denial of their motion, and automatically stays discovery until a UPEPA motion is resolved.

According to the Uniform Law Commission, 14 states have enacted statutes based on UPEPA, including Delaware's neighbors Pennsylvania and New Jersey, and eight additional states have introduced the bill. New York, which has had an anti-SLAPP statute on the books for decades, revised its law in 2020 to provide even more protections to speakers defending against speech-related claims than UPEPA. New York's law includes an actual malice fault standard applicable to publications about matters of public concern, as well as an ability for SLAPP defendants to file standalone claims to recover fees.

Key questions remain about Delaware's UPEPA. For example, it is unclear whether it will apply in federal court. New Jersey's version of the law has been held to apply in federal court, which suggest that Delaware's law should apply there as well. Additionally, because Delaware's UPEPA does not explicitly state it is retroactive, it is unlikely to apply to ongoing defamation suits.

The Practical Option of Delaware Courts

UPEPA certainly makes Delaware a less appealing forum for defamation plaintiffs. According to the Institute for Free Speech, at least 12 states have no anti-SLAPP statute, and some states' anti-SLAPP statutes are less robust than UPEPA. But there's a good chance that Delaware's defamation trend may hold.

Delaware has long been a favored venue for corporate litigation and intellectual property disputes because so many corporate defendants are incorporated in Delaware, simplifying potential jurisdictional questions. Those Delaware corporations include many major media companies.

Given the growing popularity of anti-SLAPP statutes, it may soon be difficult for a defamation plaintiff to avoid them. For example, Newsom resides in California and Fox News is domiciled in New York and Delaware, leaving Newsom to choose between California, New York or Delaware as his lawsuit locale. If the lawsuit was filed today, even following enactment of Delaware's UPEPA, Newsom might still choose Delaware over more media defendant-friendly California or New York. And Robby Starbuck presumably could have brought suit in Tennessee, where he claims to reside (and which also has an anti-SLAPP statute), or California, where Google is headquartered, yet he chose to file his complaint in Delaware.

Additionally, Delaware's "purple" status may be a draw when considering the jury pool. For right-leaning plaintiffs (or right-wing defendants), a jury pool from Delaware might be preferable over a jury pool from a more blue population such as New York City or Los Angeles, and vice versa for left-leaning plaintiffs, with Delaware more appealing than a state with a more red population.

Another perk for all parties is that the Delaware judiciary is known for being balanced and sophisticated. Judges are appointed by the governor and confirmed by the Senate for 12-year terms, and no matter which political party is in control, a balance in judicial appointments' party affiliations is required. Judges must be "learned in the law," which in practice means many are seasoned litigators before joining the bench. Delaware judges tend to carefully consider dispositive motions and issue full opinions with extensive analysis.

Delaware Defamation Law

Regardless of forum choice, Delaware courts typically apply the substantive law of the plaintiff's domicile to the affirmative elements of a defamation claim. New York and California, where many media organizations are headquartered, have robust and well-developed bodies of defamation case law, whereas Delaware has a comparably much smaller body of precedent.

But for tough choice of law questions, the buck stops with the presiding judge. Recently, in Toptal v. Bloomberg, the defendant argued the plaintiff company—which did not have a brick and mortar headquarters—had significant contacts with New York, and so New York law should apply. The court rejected this argument, finding the alleged New York contacts were not significant enough and Delaware law applied.

The application of Delaware substantive law does not mean the law itself favors plaintiffs. In fact, two of the Delaware Supreme Court's most recent defamation opinions were not plaintiff-friendly. The Delaware Supreme Court affirmed the dismissal of a claim brought by a former Trump campaign adviser named in the Steele Dossier in 2021, and brought an end to a dispute over Hunter Biden's laptop data in August.

Still, Delaware law has some advantages for potential plaintiffs. Notably, its two-year statute of limitations for defamation claims, which is a procedural rule, may apply to claims brought in Delaware. New York, California, and the neighboring states of Pennsylvania, New Jersey, and Maryland all have one-year statutes of limitations.

Time will tell if the Delaware's UPEPA will slow the trend of more defamation cases being brought there, but it will at least provide media companies who face lawsuits there a new tool to defend themselves and recoup legal fees, which can add up quickly. New York courts have recently awarded several media defendants roughly $400,000 in legal fees pursuant to New York's Anti-SLAPP statute, including to The New York Times against President Trump, and a Texas appellate court recently upheld a $150,000 fee award to The American Prospect against the head of an emergency room staffing company. This new law, which provides an efficient vehicle to weed out baseless claims, should be a welcome change for any Delaware-incorporated company that creates or publishes content.