COUNSEL:

For METABOLIFE INTERNATIONAL, INC., plaintiff: Thomas P McLish, Michael L. Converse, Akin Gump Strauss Hauer and Feld LLP, Washington, DC.
 
For METABOLIFE INTERNATIONAL, INC., plaintiff: Stephen A Mansfield, Akin Gump Strauss Hauer and Feld, Los Angeles, CA.
 
For SUSAN WORNICK, defendant: Michael J Weaver, Latham and Watkins, San Diego, CA.
 
For SUSAN WORNICK, defendant: Steven J Comen, Avani S Kherdekar, Goodwin Procter and Hoar, Boston, MA.
 
For GEORGE BLACKBURN, defendant: Gregory D Roper, Luce Forward Hamilton and Scripps, San Diego, CA.
 
For HEARST ARGYLE TELEVISION, INC., defendant: Michael J. Weaver, Steven J. Comen, Avani S. Kherdekar, Mary E. Windham, Goodwin Procter and Hoar, Boston, MA.

OPINION BY: John S. Rhoades, Sr.

OPINION:

I. Overview

Plaintiff Metabolife International, Inc. ("Metabolife") claims that, when Defendants made statements as part of a television news broadcast addressing the safety of Plaintiff's product, Metabolife 356, they committed defamation, slander, trade libel, and intentional and negligent interference with prospective economic advantage. Responding to these allegations, Defendants have filed motions (1) to dismiss the complaint under California Code of Civil Procedure § 425.16 (the "anti-SLAPP statute"), (2) to dismiss for lack of personal jurisdiction, and (3) to dismiss for improper venue or, alternatively to transfer venue. At Defendants' requests, this order addresses only the motions to dismiss under California's anti-SLAPP statute. For the reasons set forth herein, the Court grants Defendants' anti-SLAPP motions and strikes Metabolife's complaint in its entirety.

II. Background

Metabolife is a California corporation that manufactures and distributes herbal dietary supplements. The company's primary product is "Metabolife 356," a dietary supplement designed to promote weight loss and boost energy. Metabolife 356 is "the best selling dietary supplement for weight loss in the United States." (Compl. P8.) While Metabolife's workforce is based in San Diego, California, Metabolife sells its products through independent distributors which operate retail stands in shopping centers throughout the United States.

The primary active ingredient in Metabolife 356 is the Chinese herbal supplement ma huang, a naturally-occurring    form of the substance ephedrine. Because the Food and Drug Administration ("FDA") considers ma huang to be a food, not a drug, Metabolife can sell its product without undergoing the FDA's rigorous "new drug" approval process. See 21 U.S.C. § 321 (1999) (defining "food," "drug," and "dietary supplement," which includes "an herb or other botanical"); 21 U.S.C. § 355 (establishing the "new drug" application process). Nonetheless, concerns about the safety of dietary supplements containing ephedrine have animated recent debates in government. For example, in 1997, the FDA proposed a rule establishing a dosage regimen and labeling requirements for dietary supplements containing ephedrine alkaloids, like ma huang. See 62 Fed. Reg. 30678 (1997); United States General Accounting Office, Dietary Supplements: Uncertainties in Analyses Underlying the FDA's Proposed Rules on Ephedrine Alkaloids 1 (July 1999) ["Uncertainties"]; see also Massachusetts Dept. Of Public    Health, DPH Issues Advisory on Herbal Dietary Supplements Containing Ephedra (Aug. 2, 1996). The FDA's proposed rule responds to over 800 Adverse Event Reports ("AERs") linking ingestion of ephedrine-based diet pills to serious health effects, including stroke and death. See Uncertainties, at 5. In response to these concerns, the media has produced numerous broadcasts and articles on the safety of ephedrine-based diet pills. See, e.g., Charles Babcock, Stimulant Propels Diet Empire: Herbal Coalition Fights FDA's Proposed Safety Regulation, Wash. Post, May 24, 1999, at A1; Claudie Kalb, Weighing the Health Risks: Do diet pills like Metabolife work? And are they safe?, Newsweek, Oct. 18, 1999, at 59. While no regulations currently exist, the debate rages on.

Metabolife has sued Defendants for their public contributions to this debate. Defendant Hearst-Argyle Television, Inc. ("WCVB") owns numerous television and radio stations across the nation, including WCVB-TV, a local television station in Boston, Massachusetts. From May 11 to May 13, 1999, WCVB broadcast a three-part news report (the "broadcasts") on the safety of Plaintiff's product, Metabolife 356. The broadcasts     marked the culmination of a "five-month investigation" by Defendant Wornick, a WCVB reporter and presented a negative perspective on the health risks of Metabolife 356 use. The broadcasts include narration by Wornick and footage from several interviews, including one with Defendant Blackburn, a leading authority in obesity research.

After the broadcasts aired, Metabolife began a campaign against the onslaught of negative media attention. Metabolife immediately bought a full page ad refuting the broadcasts in the May 15, 1999 addition of the Saturday Boston Globe. The ad concludes "We will see Ms. Wornick and WCVB-TV in court." (Def. Blackburn's R. Ex. B.) The company also wrote letters to media companies designed to deter similar broadcasts on the safety concerns surrounding Metabolife 356. (Janis Decl. Exs. 8-10.) Finally, Metabolife filed the present action, seeking damages based on numerous statements and alleged defamatory implications arising from the broadcasts. The complaint alleges causes of action for defamation, slander, trade libel, and intentional and negligent interference with prospective economic advantage. For convenience of presentation, the Court lists the alleged statements and defamatory implications before addressing each in turn:

Alleged Defamatory Statements

1. Defendant Wornick: "Every expert we asked said Metabolife is not safe because of its main ingredient, ma huang."
 
2. Defendant Blackburn: "You can die from taking this product."
 
3. Anchor: "Will the legislature here be considering just restricting, or banning, Metabolife?"

Defendant Wornick: "I think that is what they are going to do eventually. Health officials have told us that they would like to regulate very tightly how it is sold."
     
4. Wornick: "Remember that ad calling Metabolife clinically tested for safety? Metabolife was tested at Vanderbilt University, but only for two weeks and, according to their attorney, not for safety. Vanderbilt officials have ordered Metabolife to stop making that claim."
 
5. Wornick: "Does this company have any credibility at all, doctor?"

Blackburn: "None."
 
6. "The substance ephedrine has long had the attention of law enforcement, because it's also the main ingredient in the illegal drug methamphetamine. On the streets they call it meth, or speed."
 
7. Wornick: "[Ellis] started a vitamin company     that later became Metabolife -- makers of diet pills with ephedrine. Again, the same controlled substance found in methamphetamine."
 
8. Wornick: "[Interviewee] thinks she reacted to ephedrine, a powerful heart stimulant that's the main ingredient in the illegal drug methamphetamine, known on the streets as speed."

Defamatory Implications [FN 1]

1. Implications from statements (1), (2), and (3):

(a) Taking Metabolife is deadly;

(b) The consensus in the medical community is that taking Metabolife is deadly; and

(c) Taking Metabolife as directed poses a risk of death to the average person that is substantially greater than that posed by other over-the-counter legal products.

2. Implications from statements (4) and (5):

(d) Metabolife knows that the product it makes and sells to the public is deadly;

(e) There are no scientific studies concluding that Metabolife 356 is a safe product, and no scientific support for the assertion that Metabolife 356 is a safe product;

(f) Metabolife misrepresents to the public that scientific studies have concluded that Metabolife 356 is a safe product, and that there is scientific support for the assertion that Metabolife 356 is a safe product;

(g) Metabolife 356 has not been tested for safety; and

(h) Metabolife misrepresents to the public that Metabolife 356 has been tested for safety.

3. Implications from (6), (7), and (8):

(I) The main ingredient of Metabolife 356 is an illegal controlled substance;

(j) The main ingredient of Metabolife 356 is identical to the main     ingredient in the illegal drug methamphetamine, or "speed"; and

(k) Metabolife intentionally and deceitfully passes off as a dietary supplement a product that is essentially no different than the illegal drug methamphetamine.

[FN 1] Metabolife supports the existence of these defamatory implications with the results of the Marylander Survey, an opinion survey conducted on voluntary participants selected from among shopping mall patrons. Survey participants were shown the broadcasts in their entirety and then were asked to respond to a number of questions regarding the content of the broadcasts. First, participants answered an open-ended question asking for a description of what they had seen. (Marylander Decl. P 10.) Second, participants selected from a prepared list the propositions that they believed best captured the substance of the broadcasts. (Marylander Decl. PP 11-12.) Based on the Marylander Survey, Metabolife presents evidence such as "73% of survey respondents understood [the] broadcasts to say that the main ingredient in Metabolife 356 is an illegal, controlled substance." (Metabolife's Mem. In Opp. To Def.'s Ex Parte Appl. to Stay Further Discovery at 20.)

On June 21, 1999, Defendants filed motions to dismiss under California's anti-SLAPP statute, Cal. Civ. Proc. Code § 425.16. Pursuant to that statute, the Court stayed all discovery upon notice of the motion to dismiss. By order dated September 24, 1999, the Court ordered limited discovery to enable Metabolife to meet its burden of opposing Defendants' motions, but later stayed all discovery pending the present order. As explained below, the Court does not address issues for which Metabolife should be granted discovery prior to a decision.

III. Discussion

Defendants have moved to dismiss Plaintiff's claims pursuant to California's anti-SLAPP statute. [FN 2] "SLAPP" stands for "strategic lawsuit against public participation," and the statute provides a mechanism for a defendant to strike civil actions brought primarily to chill the exercise of free speech. See Cal. Civ. Proc. Code § 425.16(b)(1). The California Legislature passed the statute recognizing "the public interest to encourage continued participation in matters of public significance . . . and [finding] that this participation should not be chilled through abuse of the judicial process." 5 Witkin, California Procedure, § 962, at 422 (4th ed. 1997).

[FN 2] The Court applies California law to interpret the anti-SLAPP statute, which, although state law, supports a motion to dismiss in federal diversity actions. See United States v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999).

To ensure that participation in public debate is not "chilled," the anti-SLAPP statute establishes a procedure for early dismissal of meritless lawsuits against public speech. Once the defendant establishes prima facie that the statute applies, the plaintiff must show a "reasonable probability" of prevailing on its claim. See Wilcox v. Superior Court, 27 Cal. App. 4th 809, 824-25 (1994); Cal. Civ. Proc. Code § 425.16(b). Plaintiff must demonstrate that "the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." See Wilcox, 27 Cal. App. 4th at 823. This burden is "much like that used to determine a motion for nonsuit or directed verdict," which mandates dismissal when "no reasonable jury" could find for the plaintiff. See id. at 824 (citing Rowe v. Superior Court, 15 Cal. App. 4th 1711, 1723 (1993)); see also Fed. R. Civ. P. 50(b) (permitting post-verdict judgment as a matter of law against a party when there is no basis for a "reasonable jury" to find for that party). The defendant's anti-SLAPP motion should be granted, therefore, when the plaintiff presents an insufficient legal basis for the claims or "when no evidence of sufficient substantiality exists to support a judgment for the plaintiff." Wilcox, 27 Cal. App. 4th at 828 (citing Carson v. Facilities Dev. Co., 36 Cal. 3d 830, 838-39, 206 Cal. Rptr. 136, 686 P.2d 656 (1984)).

In opposing dismissal under the anti-SLAPP statute, Plaintiff must establish its prima facie case with competent and admissible evidence. See id. at 830; Macias v. Hartwell, 55 Cal. App. 4th 669, 675 (1997); Evans v. Unkow, 38 Cal. App. 4th 1490, 1497 (1995). Plaintiff "cannot     simply rely on the allegations in the pleadings . . . to make the evidentiary showing," but must present independent evidence to establish its prima facie case in tort. See Church of Scientology of Cal. v. Wollersheim, 42 Cal. App. 4th 628, 656 (1996). In this case, because the speech that forms the basis for Metabolife's action concededly addresses a matter of "public concern," Metabolife must prove that statements were false and uttered with "actual malice." See Milkovich v. Lorain Journal Co., 497 U.S. 1, 14, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990); Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767, 776, 89 L. Ed. 2d 783, 106 S. Ct. 1558 (1986) (finding that the "Constitution require[s] us to tip the balance in favor of protecting true speech" in order to "ensure that true speech on matters of public concern is not deterred"). Thus, provided that Metabolife has been granted adequate discovery, the anti-SLAPP statute requires Metabolife to establish a prima facie case of falsity and actual malice to avoid dismissal.

Because the Court has stayed all discovery, it will not consider Metabolife's prima facie evidence of actual malice at this early stage in the litigation. To satisfy due process, the plaintiff's burden must be compatible with the early stage of the action and the limited discovery opportunities. See Cal. Civ. Proc. Code § 425.16(f), (g). In federal court, "if a defendant desires to make a special motion to strike based on the plaintiff's lack of evidence, the defendant may not do so until discovery has been developed sufficiently to permit summary judgment under Rule 56." See Rogers v. Home Shopping Network, Inc., 57 F. Supp. 2d 973, 1999 WL 528154, at *10 (C.D. Cal. 1999) (citing United States v. Lockheed Missiles & Space Co., 171 F.3d 1208 (9th Cir. 1999)). Summary judgment is often considered inappropriate early in the case, for example, when the moving party controls the information required to oppose the motion. See Rogers, 1999 WL 52815, at *8. In that situation, courts "are lenient in granting further time for discovery." See id. (quoting Wright, et al., Federal Practice & Procedure § 2740 (2d ed. 1996)). Thus, the Court should not scrutinize Plaintiff's evidence of facts uniquely within the Defendants' control before ordering discovery to enable Plaintiff to meet its burden of opposing Defendants' anti-SLAPP motions. Evidence of "actual malice," which exists when the speaker "entertained serious doubts as to the truth of his statement," see Newton v. National Broad. Co., 930 F.2d 662, 668 (9th Cir. 1991) (en banc) (citing Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511 n.30, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984)), is uniquely within the control of Defendants and, therefore,generally should not be tested at this early stage of the litigation, see Rogers, 1999 WL 528154, at *9.