Anti-SLAPP motion
Michael Mann Brief Lays Out Climate Change Defamation Theory – Climate Science Watch
In a brief filed today in the DC Court of Appeals as part of his defamation lawsuit against the National Review and the Competitive Enterprise Institute, Michael Mann once again argued his case and requested that the Court proceed to adjudicate the merits of Defendants’ appeal of the trial court’s denial of their motion to dismiss. The stated intention of Dr. Mann’s request is to expedite moving to trial on a case that has been long-delayed in procedural tangles.
Source: www.climatesciencewatch.org
This climate change defamation case has been an interesting one to follow. It was falsely assumed by many that the suit would not survive an anti-SLAPP motion because it is based on a dispute over global warming, and that is a hotly-debated issue. However, the anti-SLAPP motion failed because the defamation arises from the claim that the research was conducted fraudulently. That is an allegation that can be proven true or false, and therefore is not opinion.
See on Scoop.it – California SLAPP Law
The Weirdest Story About a Conservative Obsession, a Convicted Bomber, and Taylor Swift You Have Ever Read
Benghazi, Robin Williams, Islam, Twitter, and a convicted bomber from the 1970s came together in a court case against right-wing bloggers.
Source: www.thedailybeast.com
A very entertaining story about a guy who likes to sue, illustrating why a federal anti-SLAPP law might not be a bad idea.
See on Scoop.it – California SLAPP Law
Dance Moms Lawyers Slam Kelly Hyland Lawsuit, File Motion to Dismiss
If you watch Dance Moms online, you know Kelly Hyland is suing the show and its main star, Lee Miller, the dance studio shot-caller and show matriarch.
L.A. Superior Court Judge Ruth Kwan stated she was inclined to toss out Hyland’s claim that Miller defamed her in the aftermath of an episode last year.
Defense attorneys filed a motion to dismiss the case under California’s anti-SLAPP law protecting free speech. But attorneys representing Hyland argued otherwise.
They claim their clients were not properly compensated and that the contract between them and the series was unfairly slanted in favor of the production company.
Attorney Kelli Sager, on behalf of Collins, said Hyland was paid for every episode on which she appeared, and that simply, “is the deal she signed.”
“She’s just unhappy she was not on every week,” Sager said.
Source: www.thehollywoodgossip.com
I do get really tired of the the, “I didn’t understand what I was signing” defense, which is the argument being made by Hyland in this case. For example, I have received a number of calls over the years from contestants on American Idol, wanting to sue because the show made them look foolish, after signing an agreement with the show that they would not sue for being made to look foolish.
Nonetheless, the case is interesting in the anti-SLAPP context because it is outside the normal analysis of protected speech. By that I mean, when I prevail on an anti-SLAPP motion, it is often because the speech was subject to, say, the litigation privilege. It is because of that privilege that the plaintiff cannot make the requisite showing that he, she or it is likely to prevail.
Here, the reason the plaintiff can’t prevail is simply because the contract prohibits it. No fancy privilege, just basic contract law.
Latham Sued For Malicious Prosecution
Yesterday, a California appellate court overturned the lower court’s dismissal of a malicious prosecution claim against Biglaw mainstay Latham & Watkins. According to the opinion, the lower court was wrong on the statute of limitations, but the opinion also went out of its way to express just how likely the plaintiffs were to prevail on the merits of their claim that Latham doggedly pursued them on a “non-viable” legal theory.
Latham still has an opportunity to defend itself, but the language of this opinion is certainly not encouraging.
The plaintiff already recovered over $1.6 million in fees from Latham’s client, let’s see how they do against the firm…
Source: abovethelaw.com
Shame on the Latham & Watkins law firm.
I have proposed a law akin to the anti-SLAPP statute, which would apply to companies who seek to prevent former employees from creating competing businesses, and this case illustrates why.
The anti-SLAPP statute was passed because companies and individuals would use the time and expense of litigation as a means to silence criticism. If someone is saying something you don’t like, just sue them. The critic is then faced with the prospect of spending tens of thousands of dollars on a defense, or just ceasing the criticism.
In the case of employees who leave a company to start a competing business, the business brings suit claiming the use of “trade secrets,” and ties the former employees up in years of litigation; all the time knowing that the trade secrets do not exist and are certainly not being used. Sound familiar?
The Uniform Trade Secrets Act (UTSA) affords some protection to employees in this position, since it provides for the award of attorney fees to the employees if they prevail in the action, and the court determines that the action was brought in bad faith. But that does little to prevent the misuse of trade secret claims by companies wanting to stifle competition, since they can often bankrupt the former employees and force them to capitulate long before the employees can prevail in the action.
In this case, the plaintiff company brought in experts to testify that the former employees, no matter how good their intentions, had to be prevented from competing under the doctrine of “inevitable disclosure.” One problem, dear experts, inevitable disclosure is not a viable theory in California.
In any event, in this case the former employees beat the bogus suit, and were awarded $1.6 million in attorney fees against the company. They then brought a malicious prosecution action, and Latham & Watkins responded with an anti-SLAPP motion, arguing, inter alia, that the malicious prosecution action was barred by the statute of limitations. The trial court granted the anti-SLAPP motion on that basis.
[UPDATE 6/26/2015] On appeal, the Court of Appeal affirmed the trial court’s decision to grant the anti-SLAPP motion, but on a different basis. The Court of Appeal found that the trial court erred in concluding that the action was barred by the statute of limitations, but nonetheless affirmed the ruling on the basis of the “Interim Adverse Judgment Rule” (the Rule).
During the trial court proceedings, the employees had brought a motion for summary judgment. The trial court had denied the motion, finding that there were triable issues of fact. Under the Rule, if a dispositive motion is brought, and the action survives that motion, then it cannot be later said that the action was without merit. This is true even though the trial court later specifically found that the action had been brought in bad faith.
For this reason, the malicious prosecution action failed because an element of that claim is that the action was brought without probable cause, but if the claim survived a motion for summary judgment, that establishes that the action at least presented triable issues.
A malicious prosecution action in essence automatically falls under the anti-SLAPP statute, since it involves a party’s right of redress. The first prong is therefore met. Here, the burden then shifted to the employees to show that they were more likely than not to prevail on the malicious prosecution action, and they could not do so since the Rule established that the action was not brought without probable cause, regardless of the court’s later determination of bad faith.
There is logic to the Rule. When a party and its attorney are deciding whether to bring a legal action, they have a certain universe of information and documentation available. From that universe, they decide if there is probable cause for the action. If the action survives a motion for summary judgment, that means that the court agreed that the universe contained sufficient information in support of the action, since the court found triable issues.
The fact that the court later enters judgment in favor of defendants and even makes a determination of bad faith does not change that fact. Those determinations are made with the benefit of 20/20 hindsight, after all the evidence is presented, which is a different viewpoint than the plaintiff originally had when making the determination.
SLAPP008 – An Anti-SLAPP Motion Against an Evil Yogurt Shop
A client found me while searching for information about California Code of Civil Procedure section 425.17, proving that clients do some very sophisticated research on their legal issues. Changing the facts to protect the privacy of my client, he had warned the public about an evil yogurt maker who was falsely claiming to sell organic yogurt, and for that good deed he was hit with a lawsuit for defamation and interference with business.
In today’s podcast, we discuss the elements of CCP section 425.17, which under the proper circumstances will exempt a business versus business claim from the anti-SLAPP statute. In the most basic sense, section 425.17 applies when one business is talking about another business’s goods or services, AND the audience that the business is talking to consists of potential customers, AND the point of the talking is to promote the speaker’s own business.
Will section 425.17 defeat the anti-SLAPP motion, and allow the evil yogurt maker to go forward with his bogus defamation claim? Listen to episode 8 of The California SLAPP Law Podcast and find out.
Case cited: Sharper Image Corporation v. Target Corporation, 425 F.Supp.2d 1056 (N.D. CA 2006). In this case, Sharper Image, manufacturer of tower air purifier brought action against Target, manufacturers and retailers of competing product, alleging patent and trade dress infringement. Target moved for summary adjudication of plaintiff’s claims and their counterclaims for non-infringement of the asserted patents. Sharper Image separately moved to strike defendants’ tort and state law counterclaims, and in the alternative, moved for judgment on the pleadings of the counterclaims, and for partial summary adjudication on its utility patent infringement claim. Of note for today’s discussion, the court found that the anti-SLAPP motion was excluded by CCP section 425.17, but nonetheless threw out the claim under the alternative motions.
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Council spent £200,000 trying to unmask anonymous blogger
A council has dropped a five-year, £200,000 legal campaign trying to unmask a blogger called Mr Monkey, who made allegations of impropriety against four senior members of the authority. A Freedom of Information request has forced South Tyneside council to admit how much they spent trying (and failing) to discover the identity of Mr Monkey, who made allegations of impropriety against four senior members of the authority. They've dropped the curious case after the Guardian started asking questions
Source: www.theguardian.com
The Council suspected the blog was authored by Ahmed Khan, but Khan has always vehemently denied being Mr Monkey and unsuccessfully filed an ‘anti-SLAPP’ (Strategic Lawsuits against Public Participation) motion in 2011, which would have prevented the council from obtaining more of his details. But this claim was dismissed by a judge as “frivolous”, as the nature of the John Doe suit meant he was never named as a defendant.
There are procedures by which an anonymous blogger can oppose a subpoena that would expose his identity, but you can't simply bring an anti-SLAPP motion claiming you're not the defendants.
Read the rest of this entry »
Posted in Anti-SLAPP motion, Defamation, Internet Defamation, Scoop.it | Tags: anti-SLAPP motion | No Comments »
SLAPP007 – Proving Actual Malice in a Defamation Action – Makaeff v. Trump University
A great anti-SLAPP decision that has been five years in the making. In this podcast, we discuss the case of Makaeff v. Trump University, which contains an outstanding discussion of limited public figures and meeting the standard for showing actual malice. Here are the facts:
Between August 2008 and June 2009, Tarla Makaeff attended approximately seven real estate investing and finance seminars, workshops, and classes hosted by Trump University and spent a total of approximately $60,000 on the programs. Although Trump University asserted Makaeff was satisfied with the services Trump University provided to her, noting that Makaeff frequently provided excellent reviews of the programs, Makaeff stated the Trump University programs she attended were unsatisfactory. Specifically, Makaeff alleged the programs were shorter than advertised, she was provided only a toll-free telephone number instead of a one-year mentorship of “expert, interactive support,” and her Trump University mentors were largely unavailable and offered no practical advice when she did speak with them.
In addition, Makaeff alleged she was told by Trump University staff to raise her credit card limits to purchase real estate, but once she did, she was pressured by Trump University staff to instead use her elevated credit to purchase the Trump Gold Elite seminar for $34,995. Makaeff also claimed she was told by Trump University staff that her first real estate transaction after signing up for the Trump Gold Elite program would earn her approximately the amount she spent on the Trump Gold Elite program, which it did not. Additionally, Makaeff alleged Trump University instructed her to engage in illegal real estate practices, such as posting advertising “bandit signs” on the sides of roadways. On June 18, 2009, Makaeff received a letter from the Orange County District Attorney’s Office informing her that posting bandit signs in California without lawful permission could subject her to fines, a misdemeanor charge, and up to six months in jail.
Makaeff brought a class action lawsuit against Trump University on April 30, 2010. On May 26, 2010, Trump University filed a defamation counterclaim against Makaeff, alleging Makaeff “published statements to third parties about Trump University orally, in writing and on the Internet that are per se defamatory, including many completely spurious accusations of actual crimes.” Trump University alleged Makaeff’s defamatory statements were a substantial factor in causing actual and significant economic damages amounting to or exceeding $1,000,000. Madaeff responded with an anti-SLAPP motion, which was originally denied, but on appeal the Ninth Circuit determined that Trump University was a limited public figure, and send the case back to the District Court for a determination as to whether Trump University could still state a prima facie case, given the higher “actual malice” standard.
How was the case decided? Listen to the podcast to find out.
Cases discussed in the podcast (in bold), taken from the opinion:
To prove actual malice, a defamation plaintiff must show by clear and convincing evidence that the defendant knew her statements were false at the time she made them, or that she acted with reckless disregard of the truth or falsity of the statements made. Gertz v. Robert Welch, Inc., 418 U.S. 323, 328, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). The clear and convincing standard “requires that the evidence be such as to command the unhesitating assent of every reasonable mind.” Rosenaur v. Scherer, 88 Cal. App. 4th 260, 105 Cal. Rptr. 2d 674, 684 (Ct. App. 2001). “A defamation plaintiff may rely on inferences drawn from circumstantial evidence to show actual malice.” Christian Research Inst. v. Alnor, 148 Cal. App. 4th 71, 55 Cal. Rptr. 3d 600, 612 (Ct. App. 2007) (citing Reader’s Digest Assn v. Superior Ct., 37 Cal. 3d 244, 208 Cal. Rptr. 137, 145-46, 690 P.2d 610 (1984)).
Actual malice is a subjective standard. See St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968). “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of [her] publication.” Id.
Actual malice “has nothing to do with bad motive or ill will,” and “may not be inferred alone from evidence of personal spite, ill will or intention to injure on the part of the writer.” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 666 n.7, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (1989). However, in appropriate cases, factors such as “[a] failure to investigate, anger and hostility toward the plaintiff, reliance upon sources known to be unreliable, or known to be biased against the plaintiff . . . may . . . indicate that the publisher [herself] had serious doubts regarding the truth of [her] publication.” Reader’s Digest, 208 Cal. Rptr. at 145-46 (citations omitted).
Trump University claims this case is similar to Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 90 Cal. Rptr. 3d 205 (2009), in which the California Court of Appeals upheld a trial court’s conclusion that malice could be inferred “where, for example, a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.” Id. at 869 (citing Christian Research Institute v. Alnor, 148 Cal. App. 4th 71, 85, 55 Cal. Rptr. 3d 600 (2007)) (internal quotation marks omitted). Trump University argues Makaeff, like the defamation defendant in Nguyen-Lam, “has no ‘place to go for her belief’ that Trump University illegally took the property of anyone, stole anyone’s identity, or opened any credit card without approval.” (Dkt. No. 300 at 15-16.)
The Court finds Nguyen-Lam distinguishable from the present matter. In that case, the California Court of Appeals considered a defamation defendant who had learned about the defamation plaintiff, then a candidate for a public position, only through media reports yet accused her of being a Communist. 171 Cal. App. 4th at 868-69. The evidence in Nguyen-Lam indicated the defamation defendant had no personal knowledge of the defamation outside of the media reports, none of which had mentioned Communism, and thus had no basis for his claim that the defamation plaintiff was in fact a Communist. Id. at 869.
Trump University points to evidence of Makaeff’s anger and hostility toward Trump University, as well as a motive to get a refund, as evidence of actual malice. (Dkt. No. 300 at 17) (citing Christian Research Institute v. Alnor, 148 Cal. App. 4th 71, 84-85, 55 Cal. Rptr. 3d 600 (2007) (“anger and hostility toward the plaintiff . . . may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication”); Harte-Hanks Commc’ns, Inc., 491 U.S. 657, 669, 109 S. Ct. 2678, 105 L. Ed. 2d 562 (“it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry”); Widener v. Pacific Gas & Elec. Co., 75 Cal. App. 3d 415, 436, 142 Cal. Rptr. 304 (1977) (finding an engineer’s motive of wanting to suppress the making of a film and his anger with the film’s producer “sufficient evidence from which the jury could have found that [the engineer] knew [his libelous statement about the producer] was false, or was recklessly indifferent as to whether his statement was accurate or not”)).
Ninth Circuit Opinion finding that Trump University was a limited public figure.
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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.
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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
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.
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Posted in Anti-SLAPP motion, Case Results, SLAPP | Tags: Berman DeValerio, Daniel Barenbaum, Joseph Tabacco | 1 Comment »
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