The case involved a lawyer, Thomas Howard Clarke, Jr., who recorded and posted a Youtube video clip in which he spoke about an herbal supplement created by Brain Research Labs, LLC.  Although the clip was intended to solicit clients to join a class action lawsuit against the company, Clarke also spoke more generally, condemning both the herbal supplement industry as a whole and BRL in particular for making various false claims about their products, which Clarke went on to state, often cause injury and even death.

BRL brought a defamation suit against Clarke and his firm, which Clarke answered with an anti-SLAPP motion.  The trial court denied the motion.  On appeal, the primary issue became whether Clarke was entitled to protection from the litigation privilege, which in California is codified as Civil Code section 47, subdivision (b).

The litigation privilege generally protects statements made in the course of litigation from being the basis for later derivative lawsuits, such as claims for libel or slander, as well as any other tort claim (besides malicious prosecution).  Because the statements in the Youtube video were intended to solicit clients for a class action lawsuit, Clarke argued, he should be entitled to protection from the litigation privilege.

The First District disagreed.  The Court found that “the video as a whole does not function intrinsically to assist in obtaining judicial relief,” as required in order for the privilege to apply.  The Court pointed to the more general statements made by Clarke regarding BRL and the herbal supplement industry, statements which went beyond mere client solicitation for the particular class action lawsuit that had been filed.  The Court also pointed — interestingly — to the nature of Youtube as a medium for the advertisement.  Because the video could potentially reach a practically limitless number of people through the Internet, most of whom are not potential plaintiffs in the class action against BRL, the communication could not be characterized as the kind of narrowly-tailored client solicitation to which courts have previously applied the privilege.

The lawsuit has some fairly obvious problems.  (Complaint here: http://www.eonline.com/static/news/pdf/JayLenoSikhsuit.pdf.)  It is not clear why the statement is defamatory: it obviously was not meant by the speaker to be taken as a statement of fact.  Some other problems:  Dr. Dhillon purports to sue on behalf of all Sikhs, but does not allege a class action; it is unclear how the joke damaged the plaintiff or how he would valuate this damage at trial; plus, it is unclear how Dhillon will get around the various defenses to the defamation claim NBC and Leno are sure to assert — fair comment and lack of injury to name just two.

The more interesting issue will be how NBC approaches the suit from a public relations perspective.  Filing an anti-SLAPP motion, and perhaps even getting an award of attorney’s fees against the plaintiff, would obviously create a PR disaster; the joke was largely regarded as offensive, and aggressively disposing of this suit might anger members of the public even more.  It may be a tricky matter disposing of this suit in a sensitive way, especially now that the media has taken an interest.

The judge’s ruling in the case rejected a request by the rating companies to dismiss the case under the California anti-SLAPP law.

“It’s not a ruling on the merits of the case,” said Paul Clifford, an attorney at the California Anti-Slapp Project, a Berkeley, California-based law firm that specializes in similar lawsuits. SLAPP stands for “strategic lawsuits against public participation.”

Moody’s and S&P have 60 days to appeal the ruling, and the appeals court would take a fresh look at the evidence without considering whether Kramer erred in his decision, Clifford said in a phone interview. Neither side can present new evidence, he added.

Read the full article here: http://www.businessweek.com/news/2012-01-12/s-p-moody-s-must-face-calpers-lawsuit-over-ratings-judge-rules.html

The Occupy protesters will obviously have a strong argument that the City’s lawsuit arises from communications and conduct in furtherance of their protected First Amendment free speech rights.  This will satisfy the first requirement of the anti-SLAPP statute.

The second step of the analysis under the statute — whether the City will be able to show a probability of prevailing on its claims — will present a closer question.  Normally, public entities cannot recover damages for the costs of law enforcement, unless a specific statute authorizes them to do so.  Suits such as the one the City of L.A. proposes have not been successful in the past for this reason.  As Mark Goldowitz here at CASP points out, such a suit would be remarkably similar to County of San Luis Obispo v. Abalone Alliance (178 Cal. App. 3d 848), in which a county government sued anti-nuclear activists to recover the costs incurred by law enforcement and other county services in responding to the activists’ protests.  The appellate court upheld a dismissal of the suit, finding that no statute permitted a public entity to recover the costs of providing public services from the individuals allegedly responsible for the city having to deploy such services.  The Court ruled such costs are borne by the taxpayer alone.

The Abalone Alliance court did not reach the question of whether such a lawsuit would be barred by the First Amendment as an unconstitutional chilling of free speech rights.  However, we think such a result would be likely, insofar as the protests consisted of lawful demonstrations on public property.  As Carlos Marrequin of Occupy L.A. pointed out: “This was a peaceful movement. . . . They’re [the City] the ones that decided to use that amount of police, that amount of force.”

Fennell’s suit, brought without a lawyer, was based on charges of defamation, retaliation, and extortion, among others.  Fennell alleged that party officials retaliated against him for “rocking the boat” by uncovering alleged corruption and incompetence in the party, and encouraging the recruitment of more “technologically savvy” candidates for office to appeal to younger voters.  Fennell then decided to run for state party chairman.  It was after he announced this run, Fennell alleged, that party officials sunk his bid by accusing him of being a “molester, statutory rapist, and thief.”  In addition to naming the party as a defendant, Fennell also sued, among others, former gubernatorial candidate Meg Whitman, former senatorial candidate Carly Fiorina, former state party chairman Ron Nehring, and presidential candidate Mitt Romney.  Most of the individual defendants professed to having no idea who Fennell was, much less that they had defamed him.

The court dismissed the lawsuit after finding it targeted criticisms of a candidate for political party office, which the court characterized as plainly protected activity under the First Amendment and the anti-SLAPP law.  The court further found that Fennell had presented no admissible evidence in support of his claims.

The appellate court opinion may be found here: http://www.leagle.com/xmlResult.aspx?xmldoc=In%20CACO%2020110922027.xml&docbase=CSLWAR3-2007-CURR

More information from Met News: http://www.metnews.com/articles/2011/conf121511.htm

NBC’s special motion to strike pursuant to the anti-SLAPP law, California Code of Civil Procedure section 425.16, was brought against both the intentional infliction of emotional distress and defamation claims.  (The U.S. Court of Appeals for the Ninth Circuit has ruled that the anti-SLAPP law may be applied in California federal district courts to state law claims, except for certain discovery-related provisions.)

The district court, however, applied a rather unusual standard in considering the special motion to strike, finding that the plaintiff had made “a fair point” in arguing — in his opposition alone — that he required discovery from NBC to effectively respond to the motion.  The court nonetheless proceeded to consider the merits of NBC’s special motion to strike, but applied a Federal Rule 12(b)(6) standard (comparable to a demurrer under California law), taking as true all well-pleaded facts in the plaintiff’s complaint, and striking a cause of action only if it failed as a matter of law.  This relieved the plaintiff of his burden under the anti-SLAPP law to substantiate his claims through competent, admissible evidence.

Application of this more lax standard broke with previous federal decisions under the California anti-SLAPP law, which declined to consider a plaintiff’s plea for discovery after a defendant filed a special motion to strike, where the plaintiff did no more than complain about the lack of discovery in his or her opposition — i.e., where he or she did not actually seek the discovery in question from the opposing party.  (Federal courts allow a plaintiff to seek discovery while a special motion to strike is pending so long as that discovery is essential to showing a probability of prevailing on the claims sought to be struck, pursuant to Federal Rule of Procedure 56.)

Applying this standard, the district court struck Tiwari’s defamation claim, but allowed his intentional infliction of emotional distress claim to stand.  After summarily finding, apparently based on plaintiff’s non-opposition to the point, that plaintiff’s claims arose from speech on a matter of public interest under the anti-SLAPP law, the court proceeded to determine whether plaintiff could show a probability of prevailing on his claims.

On the defamation claim, the court found that NBC’s broadcast of the sting operation constituted a fair report under California Civil Code section 47, and thus plaintiff could not show a probability of prevailing.  Although NBC had incorrectly described Tiwari’s conviction in terms indicating a felony, the words used nevertheless conveyed the facts to the lay viewer in a substantially true manner, thus barring liability against NBC.

The court also found, however, that “reasonable minds could differ as to whether NBC’s conduct [in filming the sting operation] was so ‘outrageous and extreme’ as to exceed all bounds of decency,” and thus constitute intentional infliction of emotional distress.  The court ruled that this claim could not be found, as a matter of law, to lack any merit whatsoever, and thus could not be struck.

The opinion may be read here: http://law.justia.com/cases/federal/district-courts/california/candce/3:2008cv03988/206437/110

For more on application of the California anti-SLAPP law in federal courts, see Adrianos Facchetti’s post on the subject at California Defamation Law Blog: http://www.defamationlawblog.com/2010/08/articles/antislapp/can-an-antislapp-motion-be-filed-in-federal-court/

“Ironically, Westfall’s suit alleged that the city trounced on the First Amendment when fellow council members censured her for an ethics violation after she claimed corruption in connection with the expansion of the wastewater treatment plant.”

Read more on this case from Del Norte Triplicate: http://www.triplicate.com/News/Local-News/Westfall-gets-12K-bill

“Supervisor Spellman’s efforts to obtain a restraining order against Mr. Crane are nothing more than an attempt by Spellman to chill and trample upon Mr. Crane’s constitutional rights to free speech and is in direct conflict with the Anti-Slapp law of the state of California,” Crane’s attorney Chavez-Ochoa said.

Read more about the facts leading to the filing of the anti-SLAPP motion here: http://www.calaverasenterprise.com/news/article_93adbb88-25ae-11e1-b718-0019bb2963f4.html

“Political and sports figures have recently argued that their sex lives are not a matter of public interest. Consider, for example, Herman Cain: in response to allegations from Ginger White that she had a decade-plus affair with him, Mr. Cain’s attorney, Lin Wood, said that those kinds of allegations have no place in public discourse and that Cain would not discuss them.

David Beckham, too, insisted in his lawsuit for libel against In Touch magazine that the story about his alleged sexual interaction with a prostitute was not a matter of public interest.

So the question is whether a political candidate’s or a world famous athlete’s sex life is a matter of public interest. The answer is not so simple and can be argued both ways.”

Read the rest of the article here: http://www.defamationlawblog.com/2011/12/articles/antislapp/is-a-public-figures-sex-life-a-matter-of-public-interest-under-the-antislapp-statute/

Div. Five said the filing by Donald C. Randolph of Randolph & Associates qualified as a writing made in connection with an issue under consideration by a judicial body for purposes of protection under Code of Civil Procedure Sec.425.16, the anti-SLAPP statute.”

Read the full article from the Metropolitan News-Enterprise here:
http://www.metnews.com/articles/2011/summ112911.htm