Archive for June 2014
C.A. Says Ex-Employee’s Settlement Demand Was Extortion
A fired worker who sued his ex-employer for defamation and wrongful termination committed extortion when he threatened to instigate a federal investigation of the company’s business practices if his demands were not met, the Sixth District Court of Appeal ruled. Read the rest of this entry »
SLAPP006 – CalPERS v. Moody’s – Is an Opinion Always Protected Speech Under the Anti-SLAPP Statute?
With the wisdom of a penny-stock investor trying out day-trading for the first time, the brilliant financial minds at CalPERS (California Public Employees’ Retirement System) decided to dump more than a billion dollars into three “structured investment vehicles” or SIVs, backed by subprime mortgages. After all, Standard & Poors had given these three SIVs AAA ratings, even though they were “stuffed full of toxic, subprime mortgages, home equity loans, and other types of structured-finance securities linked to subprime mortgages,” as CalPERS now alleges.
As most do when they make really bone-headed investment decisions, CalPERS looked for someone to blame, and settled on Standard & Poors for that AAA rating. It sued Standard & Poors for negligent misrepresentation, asserting that the ratings company should be held responsible for the losses suffered by CalPERS.
“But wait a cotton-picking minute,” said some fictional attorney representing Standard & Poors, “I read somewhere in law school that opinion is protected speech, and won’t support an action.” On that basis, Standard & Poor’s filed an anti-SLAPP motion, but a San Francisco judge denied the motion, finding that CalPERS had provided sufficient evidence to meet the second prong of the anti-SLAPP analysis.
Today’s podcast examines the opinion of the Court of Appeal as regards the anti-SLAPP motion. Is an opinion about the worth and safety of an investment inherently protected opinion speech?
California Public Employees’ Retirement System, Inc. v. Moody’s Investors Services, Inc., 14 S.O.S. 2584 (A134912). For a copy of the opinion as well as a copy of the original complaint, go here.
Podcast: Play in new window | Embed
Subscribe: RSS
Conflict-of-Interest Suit Against Lawmakers No SLAPP, C.A. Rules
See on Scoop.it – California SLAPP Law
Anti-SLAPP motion denied.
A suit against a public official who is accused of acting on a contract in which he or she has a personal financial interest does not implicate speech or petition rights for purposes of the anti-SLAPP statute, the Court of Appeal for this district has ruled.
Similar to the HOA case I reported yesterday, the fact that the defendant is voting or acting in an official capacity does not successfully invoke the anti-SLAPP statute if the basis of the action is fraud or breach of fiduciary duty.
Here, members of the Los Angeles City Council voted 3-2 to award a 15-year, $150 million contract to a company in which one of the members had a financial interest.
The Court of Appeal, said the a council member’s vote is an act on behalf of the public, not the individual, and thus does not implicate free speech and petition rights.
See on www.metnews.com
Eddie Murphy Beats Comedian’s Defamation Lawsuit
See on Scoop.it – California SLAPP Law
Eddie Murphy has prevailed in a strange $50 million defamation lawsuit brought by a comedian named Brando Murphy.
The bigger question is how plaintiffs find attorneys willing to represent them in cases like this.
A comedian named Brando Murphy allegedly insinuated that he was the son of Eddie Murphy, to the point that he appeared with Richard Pryor’s son on the “Sons of Comedy” tour. When Eddie Murphy’s attorney sent a cease and desist letter (and accused him of stalking), Brando sued Eddie for defamation.
Eddie responded with an anti-SLAPP motion, and Brando was unable to show that he was more likely than not to prevail on his action. Motion granted. Brando has already appealed.
For all important anti-SLAPP news, go to California SLAPP Law.
See on www.hollywoodreporter.com
Anti-SLAPP statute does not apply to statements made to HOA during board meetings | Lexology
See on Scoop.it – California SLAPP Law
“In a recent opinion, the California Court of Appeal decided that a builder cannot use the anti-SLAPP statute to circumvent fraud-based claims where there were misrepresentations by the builder to the homeowners association regarding repairs for defects at the project.”
The use of the anti-SLAPP statute was doomed from the start, but it was a novel attempt. During the time that the HOA board was still dominated by the developer’s own employees, it voted to charge the members for certain repairs. A later Board determined that the developer was responsible for the repairs, and sued to recover the costs of the repairs. The developer brought an anti-SLAPP motion, unsuccessfully claiming that the vote of the developer-dominated Board was protected speech.
See on www.lexology.com
California Court: We Won’t Issue A Subpoena To Identify Someone Just To Prove ‘Someone Is Wrong On The Internet’ | Techdirt
See on Scoop.it – California SLAPP Law
Click on the “Scoop.it” link for an interesting article on Internet anonymity. In essence, someone commented on about a blog post about a lawsuit. The person claimed to be an employee of one of the parties to the litigation, so the other side sought to subpoena the records to determine the identity of the person who made the post. Incredibly, the trial court ordered that the information be turned over, completely ignoring one’s right to remain anonymous on the Internet. On appeal from the order, the Court of Appeal reversed, stating:
“Visitor has done nothing more than provide commentary about an ongoing public dispute in a forum that could hardly be more obscure—the busy online comments section of a digital trade newspaper. Such commentary has become ubiquitous on the Internet and is widely perceived to carry no indicium of reliability and little weight. We will not lightly lend the subpoena power of the courts to prove, in essence, that Someone Is Wrong On The Internet.”
See on www.techdirt.com
California Supreme Court to decide in GLAD v. CNN whether state Disabled Persons Act’s “public accommodations” include websites
See on Scoop.it – California SLAPP Law
This is an interesting disability case with anti-SLAPP implications. GLAD (an advocacy group for the deaf) brought an action against CNN, claiming that its failure to include closed captioning on all the videos it posts on its website, amounted to discrimination. CNN responded with an anti-SLAPP motion, which was denied by the District Court.
The appellate court, after observing that there was no dispute whether CNN’s online videos involved matters of public concern, held that the decision not to use captions did fall under the anti-SLAPP statute, and determined that GLAD was not likely to prevail on action since it could not show intentional discrimination based on disability. The court accepted CNN.com’s decision to display videos without captions prior to FCC captioning rules, even if not itself an exercise of free speech, as conduct “in furtherance” of free speech rights, especially given CNN’s concerns about potential costs, delay, and inaccuracies if forced to caption prematurely.
On a very interesting final note, the 9th Circuit’s referred GLAD v. CNN to the California Supreme Court for a determination of whether the DPA applies to online “places”. The California Supreme Court will now make a definitive statement as to whether websites have to comply with disability requirements.
Click on the “Scoop.it” link above for a more detailed discussion of this important holding.
See on www.lexology.com
Anti-SLAPP Ruling: Opinion by Standard & Poor’s Not Necessarily Protected Speech
With the wisdom of a penny-stock investor trying out day-trading for the first time, the brilliant financial minds at CalPERS (California Public Employees’ Retirement System) decided to dump more than a billion dollars into three “structured investment vehicles” or SIVs, backed by subprime mortgages. (That was a really long sentence but I think it’s grammatically correct.) After all, Standard & Poors had given these three SIVs AAA ratings, even though they were “stuffed full of toxic, subprime mortgages, home equity loans, and other types of structured-finance securities linked to subprime mortgages,” as CalPERS now alleges.
As most do when they make really bone-headed investment decisions, CalPERS looked for someone to blame, and settled on Standard & Poors for that AAA rating. It sued Standard & Poors for negligent misrepresentation, asserting that the ratings company should be held responsible for the losses suffered by CalPERS.
“But wait a cotton-picking minute,” said some fictional attorney representing Standard & Poors, “I read somewhere in law school that opinion is protected speech, and won’t support an action.” On that basis, Standard & Poor’s filed an anti-SLAPP motion, but a San Francisco judge denied the motion, finding that CalPERS had provided sufficient evidence to meet the second prong of the anti-SLAPP analysis. (Judge Richard Kramer to be precise, in case you happen to know the judges at the San Francisco Superior Court. Me, I never heard of the guy even though I have handled cases in that courthouse.)
Standard & Poors exercised its right to appeal that decision, but the Court of Appeal affirmed. As Justice Martin Jenkins (I don’t know him either) wrote:
We agree with CalPERS this evidence reflects that the Rating Agencies published the ratings from a position of superior knowledge, information and expertise regarding the SIVs’ composition, underlying structure and function that was not generally available in the market. More specifically, we conclude this evidence reflects not only that the Agencies employed superior knowledge and special information and expertise to assign ratings to the SIVs, they employed their special knowledge, information and expertise to participate in, and exert control over, the very construction of the SIVs. As such, we agree with CalPERS a prima facie case has been made that the ratings are actionable as ‘professional opinions’ or ‘deliberate affirmations of fact’ regarding the nature and quality of the SIV product.
While pure opinion speech is of course protected, and would generally protect Standard & Poor’s from it predictions, “the same cannot be said of the ratings at issue here, which were allegedly issued for private use by the limited class of investors dealing in complex and esoteric nonregistered securities,” Jenkins said.
IBM Mag Card Typewriter
The case is California Public Employees’ Retirement System, Inc. v. Moody’s Investors Services, Inc., 14 S.O.S. 2584. I have provided below the actual file-stamped copy of the complaint (complete with Civil Case Cover Sheet!) and the opinion of the Court of Appeal.
I have also attached a copy of the Order on a demurrer in the action. It has nothing to do with what we are discussing, but I wanted you to see it so you don’t make the same mistake the attorneys at Berman DeValerio made. Well, it’s not so much a mistake, per se, ab initio, but they prepared the proposed order and entitled the document “[Proposed] Order blah, blah, blah.” So far so good. The judge then reviews and signs the Order, and crosses out the word “proposed” in the name of the document. But then thinking that the footer has to exactly match the name of the document, the attorneys at Berman DeValerio (I’m guessing it was Daniel Barenbaum because he has a pretty high bar number, whereas Joseph Tabacco stated practicing back when IBM Mag Card typewriters were on the bleeding edge of technology, and he would therefore be very frugal with keystrokes) then put that exact title in the footer of every page in the proposed order. Poor Judge Kramer then had to cross out the word “Proposed” on every single page. No wonder it takes so long to get a case to trial in San Francisco. I never put the word “proposed” in the footer, and so far no one has ever complained.
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDSkQ1c0FIUC1TQXc/edit?usp=drivesdk” title=”Complete Calpers Complaint.pdf” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDbWFPWFVFVk83RUk/edit?usp=drivesdk” title=”Opinion re CalPERS.PDF” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
[google-drive-embed url=”https://docs.google.com/a/toplawfirm.com/file/d/0BxLJb92smfYDSUFaVmUwTXZOX0E/edit?usp=drivesdk” title=”Order from demurrer.pdf” icon=”https://ssl.gstatic.com/docs/doclist/images/icon_10_pdf_list.png” newwindow=”yes” style=”normal”]
Posted in Anti-SLAPP motion, Case Results, SLAPP | Tags: Berman DeValerio, Daniel Barenbaum, Joseph Tabacco | 1 Comment »