SLAPPs: Birds do it, bees do it, even big law firms that should know better, do it.

angry photoI’m not so sure about that title, but it made me chuckle. The point of this article is that attorneys who create SLAPPs run the gamut, including large firms, who would presumably have an attorney or two who should know better. This latest case in my office is an object lesson as to how SLAPPs come about, and why the California’s SLAPP statute was such a great idea.

The case is the typical scenario where my client went off and started a business to compete with his former employer, and the former employer doesn’t like that one bit. The company sued, claiming the usual misappropriation of trade secrets, interference with prospective economic advantage and the like. My client cross-complained for breach of contract, because the company stopped paying certain significant residuals to which he is entitled. We will ultimately win, but the company is going to do what it’s going to do.

“Don’t you dare tell the world about how we’re going out of business.”

One thing it decided to do was to use the action to silence any criticism by my client. My client sent out a cautionary email to employees of the company, warning them about the shenanigans of the company. He explained that the company had not only breached contracts by cutting off his residuals, it had done the same to someone else. The email then directed the recipients to reports about the company published by Moody’s and Bloomberg, as well as press releases by the company itself, which all stated that the company is in some pretty dire financial straights.

He also sent out a press release, summarizing some events in the litigation. Specifically, when we took the deposition of the former vice president of the company, he took the Fifth and refused to answer any questions. The press release accurately reported those facts.

The company is represented by a law firm I had never heard of before this case, but according to its letterhead, it has some 30 offices, with five or six of them right here in California. It must be a pretty big firm.

The company and its attorneys apparently decided that while they were doing what they were going to do, my client is not allowed to tell anybody about the litigation or point to news stories about the finances of the company. They amended their complaint, adding four cause of action for libel, trade libel*, false advertising and unfair competition, all based on the email and the press release.

Under the heading of you can’t make this stuff up, here are some of the things they alleged were defamatory.

“It’s not 100% certain we are going to fail, it’s only close to 100%.”

My client provided a link to the article by Moody’s, and he said, “as one analyst says, the chances of [the company] defaulting on its [debts] is 100%.”

That’s defamatory, according to the complaint, because the analyst actually said, “the chances of [the company] defaulting on its [debts] is close to 100%.” So, apparently in opposing counsels’ world, that difference is defamatory because someone wanting to invest in the company would be put off by reading that the chance of default is 100%, but if they knew it was only “close to 100%” then they would be pulling out their checkbooks.

My client also wrote that his “complaint against [the company] alleges twelve causes of action, including . . . breach of the covenant of good faith and fair dealing . . . among others.”

Why is that defamatory? Because according to the complaint, my client did NOT file a complaint, he filed a CROSS-complaint, and the cause of action for breach of the covenant of good faith and fair dealing was thrown out on demurrer (before I was involved).

So, again, for that to have caused any loss of reputation, we have to assume that someone considering working for the company or investing in it would say, “I’m fine with a company that doesn’t pay its employees, so long as that’s only alleged in a cross-complaint, and so long as there is no cause of action for breach of the implied covenant. But if there’s a COMPLAINT that alleges breach of the implied covenant, the deal’s off!

This is the precise sort of case for which the anti-SLAPP statute was designed. In my never to be humble opinion, the causes of action were added purely out of a desire to gain leverage in the action, and a quick disposal of that sort of claim is the purpose of the anti-SLAPP statute. This was the quintessential SLAPP, and you are left scratching your head as to how a firm could have blundered into it, unless . . .

Crazy like a fox?

Since the SLAPP was so obvious, it has not escaped me that the firm may be crazy like a fox. It just smacks of a set-up. As stated, at the end of the day the company will be writing my client a substantial check. When I first came into the case, opposing counsel was fighting to postpone the trial, trying to put off that eventuality. It takes about six months to have a motion heard in this courtroom, and the judge does not move up motions on an ex parte application unless there has been a cancellation. If opposing counsel checked my background and saw that anti-SLAPPs are a big part of my practice, they may have filed an intentional SLAPP as a means to delay the action. That may seem crazy given the attorney fees that will come from the successful motion, but given the finances of the company, the goal might just be to push this case beyond a bankruptcy filing.

Still, I was recently retained to handle an appeal in a case where the judge improperly denied an anti-SLAPP motion, and then compuounded the error by refusing to give a jury instruction on protected speech. The jury awarded substantial damages based on protected speech. That case illustrates why it is crucial to get protected activities out of the action, even if it is clear that the plaintiff may have filed a SLAPP for purposes of delay.

*A rookie mistake to allege trade libel. It seldom makes sense to allege trade libel because the elements are far harder to meet than an action for libel, and it certainly doesn’t make sense to allege trade libel when you are already alleging libel.

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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