Implicit Nondisparagement Clauses Do Not Waive Oregon’s Anti-SLAPP Protections
A Comprehensive Commentary on Lowes v. Thompson, 374 Or 23 (2025)

1. Introduction

Lowes v. Thompson is the Oregon Supreme Court’s latest word on the tension between two increasingly common contract devices—nondisparagement clauses and anti-SLAPP statutes. The Court clarifies that a bare promise “not to disparage” does not, by itself, waive the speaker’s statutory right to seek early dismissal of a lawsuit under Oregon’s anti-SLAPP statute, ORS 31.150. The holding refines practitioners’ understanding of waiver doctrine, reinforces the step-two burden-shifting framework of the statute, and signals that only an express and unmistakable waiver will forfeit anti-SLAPP protections.

Background Snapshot

• Parties: Peter Lowes (“husband,” respondent) and Amy Thompson (“wife,” petitioner) – formerly married; Thompson later ran for public office.
• Key Contract: 2017 stipulated judgment of dissolution containing (i) a broad release by Thompson of all claims against Lowes, and (ii) a “Mutual Non-Disparagement” provision.
• Disputed Speech: During her 2018 campaign Thompson told an Oregon Public Broadcasting (OPB) reporter that Lowes was her “abuser” and had “strangled” her.
• Claims Filed: Lowes sued for breach of the nondisparagement clause (and originally for defamation against OPB).
• Procedural Posture: Thompson moved to strike under ORS 31.150 (anti-SLAPP) and, in the alternative, to dismiss under ORCP 21 A(1)(h).

2. Summary of the Judgment

The Supreme Court (Bushong, J.) held:

1. Thompson satisfied step one of ORS 31.150 by showing the breach-of-contract claim “arises out of” protected speech on an issue of public interest (domestic abuse allegations made in the context of a political campaign).
2. The Court of Appeals erred in concluding that the nondisparagement clause automatically defeated Thompson’s anti-SLAPP motion by implying a waiver of the statute’s protections.
3. A waiver of statutory (or constitutional) rights must be clear and unequivocal; the dissolution judgment’s language was simply a bilateral promise, not a relinquishment of anti-SLAPP procedure.
4. Accordingly, after finding step-one satisfied, the proper course was to assess step-two—whether Lowes produced “substantial evidence” creating a probability of prevailing (including proof of causation and damages). The Court remanded to the Court of Appeals to conduct that analysis.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Neumann v. Liles, 358 Or 706 (2016) – Described the purpose and structure of Oregon’s anti-SLAPP statute; cited to explain the two-step, burden-shifting framework.
• Handy v. Lane County, 360 Or 605 (2016) – Reaffirmed that anti-SLAPP aims to screen out nonmeritorious suits burdening free speech; used to contextualize the statute’s policy.
• Bennett v. Farmers Ins., 332 Or 138 (2001) – Defined “waiver” as “the voluntary relinquishment of a known right”; provided the doctrinal yardstick.
• Johnson v. Swaim, 343 Or 423 (2007) & Great American Ins. v. General Ins., 257 Or 62 (1970) – Stressed that contractual waiver of statutory rights must be unmistakable.
• Navellier v. Sletten, 29 Cal 4th 82 (2002) – A California decision often quoted for the idea that an NDA may “waive” anti-SLAPP protection. The Oregon Court analyzed Navellier, but rejected its broad dictum as not persuasive and not essential to the California result.

The Court also engaged classic contract-interpretation authorities (Williston, Corbin) to distinguish between “interpretation” (ascertaining intent) and “construction” (assigning legal effect).

3.2 The Court’s Legal Reasoning

1. Textual Examination of the Clause
   The nondisparagement provision states only that “Neither party shall make … any statement that disparages…”; it contains no reference to “waiver,” “rights,” or “statutory procedures.” Hence, on its face it is a promise, not a relinquishment of existing remedies.
2. Contextual Reading
   Other portions of the dissolution judgment do use waiver/release language (e.g., the wife’s release of past claims, a “non-waiver of strict performance” clause). The juxtaposition shows the parties knew how to draft an explicit waiver, but chose not to for the nondisparagement section.
3. Waiver Doctrine Applied
   Under Bennett and subsequent cases, waiver must be “clear and intentional.” Ambiguity defeats waiver. Because the clause is silent on anti-SLAPP, the Court refused to infer waiver.
4. Procedure Under ORS 31.150 Remains Intact
   Once Thompson met her step-one burden, the statute compelled the court to decide step-two. The Court of Appeals’ shortcut (treating the clause as self-executing defeat of the motion) improperly collapsed the two-step analysis.
5. Limited Role of Non-Oregon Authorities
   The Court clarified that post-2001 California jurisprudence can be persuasive but is not controlling. Navellier was distinguished because (a) its “waiver” remark was dicta and (b) the California court nonetheless remanded to consider probability of success.

3.3 Anticipated Impact on Oregon Law

• Contract Drafting: Lawyers drafting settlement or dissolution agreements must now include express language if the intent is to relinquish anti-SLAPP or other procedural rights. Boiler-plate nondisparagement language will no longer suffice.
• Litigation Strategy: Defendants charged with breaching nondisparagement clauses retain access to ORS 31.150, especially when speech involves public interest matters (e.g., domestic violence, political campaigns).
• Public-Policy Debate: The concurring opinion flags wider policy concerns about clauses that silence abuse survivors. It invites legislative action similar to the federal Speak Out Act and developments in other states. Thus, although the majority opinion is narrow, the case may serve as a catalyst for statutory reform.
• Future Cases: Courts must engage in a granular, evidence-based step-two inquiry even when a contract purports to restrict speech. Plaintiffs will bear the evidentiary burden for causation and damages; no presumption of harm will bypass that requirement.

4. Complex Concepts Simplified

5. Conclusion

Lowes v. Thompson fortifies Oregon’s anti-SLAPP regime by holding that an ordinary nondisparagement clause does not, without more, waive a speaker’s statutory right to seek early dismissal of claims attacking protected speech. The decision:

• Reasserts the necessity of the statute’s two-step analysis.
• Clarifies that waiver of statutory safeguards must be explicit and intentional.
• Alerts drafters and litigants that contractual silence or ambiguity will be construed against waiver.
• Leaves open on remand the factual question of whether Lowes can meet step-two’s evidentiary threshold as to damages and causation.
• Signals—through the concurrence—that broader public-policy questions about silencing abuse victims may soon invite legislative or judicial resolution.

In short, the ruling protects vigorous public discourse by preventing inadvertent forfeiture of anti-SLAPP protections, while still permitting contractual nondisparagement claims that can survive the statute’s evidentiary gate-keeping function.