Anti-SLAPP Prong One in Nevada: Contradictory Evidence Requires a Factual Good-Faith Showing—Mere Denial Is Not Enough

I. Introduction

In JET COMMERCIAL CONSTR., LLC v. N. AM. INS. AGENCY OF LAWTON, LLC, the Supreme Court of Nevada affirmed the denial of an anti-SLAPP special motion to dismiss crossclaims for fraudulent misrepresentation and abuse of process. The dispute grew out of a construction project for nonparty Forum Shops, LLC. Jet Commercial Construction, LLC (Jet) was contractually required to obtain compliant general liability insurance and provide a certificate of insurance (COI). Jet procured a policy through its broker, North American Insurance Agency of Lawton, LLC d/b/a Insurica of Lawton (Insurica), but after a defect claim arose, the insurer denied coverage based on a Nevada-work exclusion.

While Forum Shops sued Jet (including for negligent misrepresentation about coverage), Jet’s principal, Jake Sharp, met with Insurica producer David Hooper, who signed a notarized declaration admitting he mistakenly indicated there was coverage and issued COIs without knowing about the Nevada exclusion. After that declaration was produced in discovery in the Forum Shops case, Insurica intervened and filed crossclaims alleging Sharp induced Hooper to sign via deceptive statements (including that the declaration would not be used in litigation and was needed to release “millions of dollars”), and that Jet then ratified the scheme by using the declaration in discovery.

The key issues on appeal were (1) what “communication” the anti-SLAPP motion properly targeted (discovery production versus the underlying statements used to procure the declaration), and (2) what a defendant must show to establish “good faith communication” under Nevada’s anti-SLAPP prong one when the plaintiff supplies contradictory evidence.

II. Summary of the Opinion

The court reviewed de novo and affirmed. It held:

  • The “gist or sting” of Insurica’s crossclaims was Sharp’s alleged statements and conduct in procuring Hooper’s declaration—not Jet’s act of producing the declaration in discovery—so the discovery-production theory did not carry prong one.
  • Sharp’s alleged statements were sufficiently connected to the Forum Shops litigation and were directed to a person with “some interest in the litigation,” satisfying the Patin v. Lee connectivity test for petition-related communications.
  • Nevertheless, Jet failed prong one because it did not establish the “good faith communication” requirement in NRS 41.637. Given Hooper’s affidavit contradicting Sharp, Jet could not rely on a bare denial; it needed a factual basis supporting good-faith truthfulness of the statements as alleged. Under Spirtos v. Yemenidjian, denials are not relevant at step one where the inquiry evaluates the communication as alleged by the plaintiff.
  • Because Jet failed prong one, the court did not reach prong two (probability of prevailing).

III. Analysis

A. Precedents Cited

1. Standard of review and anti-SLAPP purpose

  • Coker v. Sassone: The court reaffirmed that denial of an anti-SLAPP special motion to dismiss is reviewed de novo, framing the Supreme Court’s willingness to re-examine the prongs independently of the district court’s reasoning.
  • Stark v. Lackey: Quoted for the policy rationale that anti-SLAPP provides a mechanism to dismiss meritless suits early and for the structure of the two-prong test. Critically, Stark also supplies the rule that a defendant’s affidavit of truthfulness can be sufficient absent contradictory evidence—a limitation that became decisive here once Insurica submitted Hooper’s conflicting affidavit.

2. Statutory “good faith” as a gatekeeping requirement

  • Shapiro v. Welt: Used to emphasize that “no communication” qualifies under NRS 41.660 unless it is “truthful or is made without knowledge of its falsehood” (quoting NRS 41.637). This case anchors the court’s treatment of “good faith” as an essential statutory threshold, not a discretionary equitable concept.

3. “Gist or sting” and identifying what conduct the claims are truly “based upon”

  • Rosen v. Tarkanian: Provided the operative lens: anti-SLAPP focuses on the “gist or sting” of the statements that form the basis of the claims. Applying Rosen, the court rejected Jet’s attempt to recharacterize Insurica’s claims as targeting discovery production, holding instead that the core conduct was Sharp’s alleged misrepresentations to obtain the declaration.

4. Petitioning/discovery authorities and why Jet’s reliance failed

  • Cabral v. Martins: Cited as an example of a case where claims did arise directly from petitioning and litigation conduct (including preparatory communications “intimately intertwined with” judicial filings). The Nevada court distinguished it because Insurica’s crossclaims were not predicated on Jet’s discovery production itself; production was merely a “vehicle” for notice and imputation.

5. Prong-one connectivity test: relation to litigation and audience with interest

  • Patin v. Lee: Supplied the two-part requirement that the statement (1) relate to substantive issues in the litigation and (2) be directed to persons with “some interest in the litigation.” The court applied Patin to hold Sharp’s statements—aimed at eliciting an admission about insurance coverage for the project—were connected to the Forum Shops allegations and directed to Hooper/Insurica, who had a concrete stake given their role in issuing the COI and knowledge of the coverage denial and lawsuit.

6. Step-one evidentiary posture: evaluate the communication as alleged, not as denied

  • Spirtos v. Yemenidjian: This was the decision’s fulcrum. The court relied on Spirtos to reiterate that step one evaluates “the communication as it is alleged in the plaintiff’s complaint and in any of the plaintiff’s clarifying declarations.” In Spirtos, a defendant’s declaration lacking factual bases (and effectively denying the alleged statement) failed to establish good faith. Likewise here, Sharp’s declaration mostly denied making the alleged promises and threats; with Hooper’s contradictory affidavit in the record, those denials did not carry Jet’s burden to show good faith truthfulness of the communications as alleged.

7. Prima facie prong two (not reached) and fee-prematurity doctrine

  • Wynn v. Associated Press: Cited to describe prong two’s prima facie standard (“sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited”). The court did not apply this standard because prong one failed.
  • Matter of Guardianship of M.J.M.: Used to support the court’s refusal to address Jet’s attorney-fee challenge as premature where the district court had not yet awarded an amount, mirroring the appellate finality principle that a fee issue is not ripe until quantified.

8. Briefing and affirmance on alternative grounds

  • Edwards v. Emperor's Garden Rest.: Invoked to decline Jet’s undeveloped argument under NRS 41.637(1) (“aimed at procuring any governmental or electoral action”); inadequate briefing waives meaningful review.
  • Milender v. Marcum: Supported affirmance on a different rationale than the district court used. Even if the district court’s omissions-based reasoning was flawed, the Supreme Court affirmed because Jet independently failed the good-faith component of prong one.

B. Legal Reasoning

1. Properly identifying the challenged “basis” of the claims

Jet framed the crossclaims as attacking protected litigation conduct—producing the declaration in discovery—arguing that this was a communicative act in a judicial proceeding under NRS 41.637(3). The court instead parsed the cross-complaint and held that discovery production was not the operative wrong; it merely (i) allowed Insurica to learn the declaration had been disclosed and (ii) served as the mechanism by which Sharp’s alleged inducement could be attributed to Jet and to Steve Rich. Under Rosen v. Tarkanian, the “gist or sting” was Sharp’s alleged deception in obtaining the declaration.

2. Petition-related connection satisfied, but good-faith not

Applying Patin v. Lee, the court accepted that Sharp’s statements, as alleged, related to substantive issues in the Forum Shops litigation (insurance coverage representations) and were directed to an interested person (the broker/producer who issued the COI and knew of the denial and lawsuit).

The dispositive failure was statutory “good faith” under NRS 41.637. The court treated “good faith” as an evidentiary burden on the movant at prong one: the movant must show the statement is truthful or made without knowledge of falsehood. Critically, under Spirtos v. Yemenidjian, the court evaluated the communications as Insurica alleged them (e.g., that Sharp said the declaration “had nothing to do with any ongoing litigation” and would not be used in litigation, and that money would not be released absent the admission).

Sharp’s declaration did not supply a factual predicate demonstrating the truthfulness (or non-knowing falsity) of those alleged statements; it largely denied saying them. In line with Spirtos, denials do not satisfy step one when the plaintiff has put forward a contrary version through declarations. And while Stark v. Lackey allows a generalized affidavit of belief in truthfulness to suffice in some cases, that sufficiency evaporates where the plaintiff presents contradictory evidence—precisely what Hooper’s affidavit provided.

3. Doctrinal refinement: what “good faith” requires when the record conflicts

The opinion’s practical rule is that once the nonmovant supplies evidence contradicting the defendant’s account of the communication, the movant must do more than deny; it must provide a factual basis showing that the communication, as alleged, was truthful or made without knowledge of falsehood. In other words, anti-SLAPP prong one in Nevada is not won by converting a credibility contest into a categorical denial; the movant bears the risk of an underdeveloped factual showing on “good faith.”

C. Impact

  • Limits on “litigation conduct” reframing: Parties cannot reliably convert claims about pre-disclosure inducement or misconduct into claims “based upon” discovery production simply because the contested document later appears in discovery. Courts will look to the “gist or sting” and the pleadings’ theory of liability.
  • Heightened importance of the movant’s evidentiary proffer at prong one: Where the plaintiff (or cross-claimant) offers sworn contradictory evidence, defendants must present affirmative factual support for good faith—not merely denials. This will likely increase the quality and specificity of declarations submitted with anti-SLAPP motions.
  • Strategic consequences in disputes involving declarations and witness statements: When liability is premised on allegedly deceptive procurement of a statement (rather than the act of filing/producing it), anti-SLAPP protection may be harder to obtain unless the defendant can show the alleged inducements were truthful or non-knowingly false.
  • Appellate efficiency and alternative-ground affirmance: By affirming under Milender v. Marcum, the court signaled that even if a district court misidentifies the theory (e.g., “omissions”), an anti-SLAPP denial will stand if the record supports failure on any prong-one requirement.

IV. Complex Concepts Simplified

  • Anti-SLAPP: A statutory procedure allowing early dismissal of claims targeting protected petitioning/speech activity, before expensive litigation proceeds.
  • Two-prong test (NRS 41.660):
    1. Prong one: The defendant must show the claim is based on a good faith communication in furtherance of the right to petition.
    2. Prong two: If prong one is met, the plaintiff must show prima facie evidence of a probability of prevailing.
  • “Good faith communication” (NRS 41.637): Not merely “connected to a case,” but also “truthful or made without knowledge of its falsehood.” If the plaintiff submits evidence the statement was knowingly false, the defendant must substantively counter that at prong one.
  • “Gist or sting”: The court asks what the claim is really about—the core thrust of the alleged wrongful statements or conduct—rather than the defendant’s preferred characterization.
  • “Some interest in the litigation”: The protected statement must be directed to someone meaningfully connected to or affected by the litigation (not necessarily a party), such as a broker involved in the transaction at issue.
  • Premature fee appeal: If a court has not actually awarded fees or set an amount, an appeal of fees is typically not ripe.

V. Conclusion

The Nevada Supreme Court’s affirmance clarifies that anti-SLAPP prong one turns not only on whether the communication relates to litigation, but also on whether the movant can prove statutory “good faith” in the face of contradictory evidence. When the plaintiff supplies sworn evidence disputing what was said, a defendant cannot carry prong one with simple denials; consistent with Spirtos v. Yemenidjian, the movant must provide a factual basis demonstrating the alleged communications were truthful or made without knowledge of falsity. The opinion also reinforces that courts will identify the real target of the claims under the “gist or sting” framework, preventing parties from insulating alleged pre-litigation deception by pointing to later discovery production.