Background
This case is the latest chapter in protracted litigation between attorney Larry Johnson and three defendants — Shimshon Wexler, Jeffrey Cordtz, and Richard Alembik — arising from a debt-collection dispute. Johnson, representing a creditor, sent a demand letter to Cordtz (a debtor) and Alembik (Cordtz’s attorney) in 2021. Alembik consulted with Wexler, an attorney experienced in the federal Fair Debt Collection Practices Act (FDCPA), and sent Johnson a letter alleging several FDCPA violations. Wexler subsequently filed a federal FDCPA suit against Johnson on behalf of Cordtz.
In retaliation, Johnson, proceeding pro se, filed a $4 million state-court lawsuit against all three defendants, alleging defamation, intentional infliction of emotional distress, conspiracy, and tortious interference with business relations. Wexler successfully moved to strike Johnson’s claims under Georgia’s anti-SLAPP statute, OCGA section 9-11-11.1 — a provision that allows defendants to strike meritless lawsuits designed to punish the exercise of free speech or petition rights. The Court of Appeals previously affirmed the strike order, the Supreme Court denied certiorari, and the remaining defendants settled with Johnson.
Wexler then sought mandatory attorney fees under the anti-SLAPP statute’s fee provision, OCGA section 9-11-11.1(b.1). The trial court awarded $71,610 for trial-court fees (split between Wexler and his attorney Orion Webb) and $87,817 for appellate counsel, totaling $159,427. Johnson appealed the fee award.
The Court’s Holding
Senior Judge Fuller, writing for a unanimous panel, affirmed the fee award on all grounds. First, the court rejected Johnson’s argument that the FDCPA preempted Wexler’s right to recover anti-SLAPP attorney fees. Johnson advanced two preemption theories: (a) the trial court’s prior preemption ruling was the “law of the case,” and (b) the FDCPA independently preempts state anti-SLAPP fee claims. On the law-of-the-case argument, the court held that only explicit rulings by an appellate court constitute the law of the case under OCGA section 9-11-60(h), and the prior appeal never addressed FDCPA preemption. On the substantive preemption argument, the court found no conflict between the FDCPA and Georgia’s anti-SLAPP fee provision. The FDCPA’s preemption clause, 15 USC section 1692n, applies only to state laws “with respect to debt collection practices,” and this case involved no debt-collection claims.
Second, the court rejected Johnson’s argument that Wexler should not recover fees for his own work because he lacked anti-SLAPP experience. Citing Harkleroad v. Stringer, the court held that self-represented attorneys are ordinarily entitled to attorney fees, and the trial court did not abuse its discretion in awarding Wexler fees for his own litigation work, particularly where evidence showed he performed all the legal research and his involvement reduced outside counsel’s costs.
Key Takeaways
- Georgia’s anti-SLAPP fee provision, OCGA section 9-11-11.1(b.1), mandates fee awards to prevailing movants — including fees for both trial and appellate proceedings, as confirmed in Rosser v. Clyatt.
- The FDCPA does not preempt Georgia’s anti-SLAPP fee-shifting in cases where the underlying claims are not debt-collection actions, even when the factual background involves FDCPA-related conduct.
- The law-of-the-case doctrine under OCGA section 9-11-60(h) extends only to explicit appellate holdings; trial court rulings and implied appellate rulings do not qualify.
- Self-represented attorneys may recover their own fees under Georgia’s anti-SLAPP statute, consistent with the general rule that attorney pro se litigants are not exempt from fee exposure.
Why It Matters
For Georgia litigators, this opinion reinforces the teeth of the anti-SLAPP statute’s mandatory fee provision. Practitioners contemplating defamation or tort claims against opposing counsel should carefully assess whether their claims might be subject to an anti-SLAPP motion to strike, as the fee consequences can be substantial. The decision also provides a clear holding that federal regulatory frameworks like the FDCPA do not shield litigants from state-law fee obligations in cases outside the scope of the federal statute. Finally, the opinion clarifies an important procedural point: only explicit appellate holdings bind lower courts under Georgia’s law-of-the-case rule, a distinction that matters when parties attempt to leverage prior rulings on issues the appellate court never actually decided.