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SLAPP Cases Decided by the Ninth Circuit Court of Appeals

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Batzel v. Smith
9th Circuit, 2003
333 F.3d 1018

Smith, a contractor hired by Batzel at her home, saw numerous “older European” paintings on Batzel’s walls and thought he overheard her say she was the granddaughter of one of Hitler’s deputies. He sent an e-mail to an agency involved in tracking down artwork stolen by the Nazis, and the agency posted the e-mail on its website. Batzel sued Smith and the director of the agency, Ton Cremers, for defamation. Cremers filed an anti-SLAPP motion to strike the complaint, arguing that the plaintiff was not likely to prevail on her complaint, as required by the anti-SLAPP statute, because he was exempt from liability for reposting Smith’s e-mail on the Internet under 47 U.S.C. 230 — a part of the 1996 Communications Decency Act that sets limitations on liability under state law for postings on the Internet. The motion was denied by the district court on the grounds that section 230 did not apply to Cremers’ in this case. The 9th Circuit panel holds, as a threshold matter, that denial of an anti-SLAPP motion is an immediately appealable “final decision” in federal court under 28 U.S.C. 1291. “Because California law recognizes the protection of the anti-SLAPP statute as a substantive immunity from suit, this court … will do so as well.” (Cf. United States, ex rel. Newsham et al. v. Lockheed Missiles and Space Co. below.) The court disagrees with the district court’s interpretation of section 230, vacates the district court’s denial of the special motion to strike, and remands for further hearings on questions of fact in light of its interpretation of section 230.

Bosley Medical Institute v. Kremer
9th Circuit, 2005
403 F.3d 672

After Kremer became dissatisfied with hair restoration provided by Bosley, he started a website to criticize the service. Because the website address was “,” Bosley sued Kremer for trademark infringement and cybersquatting under the federal Anti-cybersquatting Consumer Protection Act. Kremer filed an anti-SLAPP motion against Bosley’s state-law trademark claims. The district court granted the motion but the appellate court reverses. “An infringement lawsuit by a trademark owner over a defendant’s unauthorized use of the mark as his domain name does not necessarily impair the defendant’s free speech rights.” The court concludes that while a summary judgment motion might have been appropriate, an anti-SLAPP motion was not.

Breazeale v. Victim Services, Inc.
9th Circuit, 2017
878 F.3d 759

Davis v. Electronic Arts, Inc.
9th Circuit, 2015
775 F.3d 1172

DC Comics v. Pacific Pictures Corp.
9th Circuit, 2013
706 F.3d 1009

Doe v. Gangland Productions, Inc.
9th Circuit, 2013
730 F.3d 946

Estate of Tucker ex rel. Tucker v. Interscope Records, Inc.
9th Circuit, 2008
515 F.3d 1019

Fabbrini v. City of Dunsmuir
9th Circuit, 2011
631 F.3d 1299

Graham-Sult v. Clainos
9th Circuit, 2013
738 F.3d 1131

Graham-Sult v. Clainos
9th Circuit, 2014
756 F.3d 724

Greater Los Angeles Agency on Deafness, Inc. v. CNN, Inc.
9th Circuit, 2014
742 F.3d 414

Greensprings Baptist Christian Fellowship Trust v. Cilley
9th Circuit, 2010
629 F.3d 1064

Hilton v. Hallmark Cards
9th Circuit, 2010
599 F.3d. 894

Hyan v. Hummer
9th Circuit, 2016
825 F.3d 1043

Jordan-Benel v. Universal City Studios, Inc.
9th Circuit, 2017
859 F.3d 1184

Kearney v. Foley & Lardner, LLP
9th Circuit, 2009
590 F.3d 638

Keller v. Electronic Arts Inc. (In re NCAA Student-Athlete Name & Likeness Licensing Litig.)
9th Circuit, 2013
724 F.3d 1268

Makaeff v. Trump University, LLC
9th Circuit, 2013
715 F.3d 254
736 F.3d 1180

Maloney v. T3Media, Inc.
9th Circuit, 2017
853 F.3d 1004

Manufactured Home Communities, Inc. v. County of San Diego
9th Circuit, 2011
655 F.3d 1171

Manufactured Home Communities., Inc. v. County of San Diego
9th Circuit, 2008
544 F.3d 959

Manzari v. Associated Newspapers Ltd.
9th Circuit, 2016
830 F.3d 881

Metabolife International, Inc. v. Wornick
9th Circuit, 2001
264 F.3d 832

In this lengthy and complex opinion (including a partial dissent) the court reverses in part and affirms in part the judgment of the district court (see district court decision). The district court had ruled that certain expert testimony on behalf of Metabolife could not be admitted; as a result, Metabolife was unable to demonstrate a probability of prevailing on its claims for defamation and trade libel, and therefore the court granted the anti-SLAPP motions of all defendants. The appellate court reverses the district court’s decision to exclude the expert testimony because it found the reasons cited by the district court constitute abuse of discretion. In the court’s view, admitting the expert evidence would not enhance the ability of Metabolife to prevail on its claims against one defendant, a professor of medicine, and therefore the court affirms the decision to grant that defendant’s anti-SLAPP motion. However, as to the other defendants — a TV reporter and her broadcaster — the court reverses the decision to grant their anti-SLAPP motions on the grounds that their edited broadcast of the professor’s statements about Metabolife failed to qualify as “protected speech” under the First Amendment because they deleted crucial qualifiers from the original statement. In its opinion the court rules that the discovery-limiting provision of the anti-SLAPP statute (Section 425.16, subd. g) conflicts with Federal Rule of Civil Procedure 56(f), and therefore cannot be applied in federal court. The dissent points out that, despite the general prohibition, the state statute nevertheless allows a judge to permit discovery “for good cause” and therefore does not conflict with the federal rule.

Mindys Cosmetics, Inc. v. Dakar
9th Circuit, 2010
611 F.3d 590

Price v. Stossel
9th Circuit, 2010
620 F.3d 992

Roberts v. McAfee, Inc.
9th Circuit, 2010
660 F.3d 1156

Safari Club International v. Rudolph
9th Circuit, 2017
862 F.3d 1113

Sarver v. Chartier
9th Circuit, 2016
813 F.3d 891

Thomas v. Fry’s Electronics, Inc.
9th Circuit, 2005
400 F.3d 1206

The U.S. Supreme Court decision in Swierkiewicz v. Sorema (2002) does not undermine the court’s earlier decision in United States, ex rel. Newsham et al. v. Lockheed Missiles and Space Co. (see below) that the California anti-SLAPP motion to strike and entitlement to fees and costs are available in federal court.

Travelers Casualty Insurance Company of America v. Hirsh
9th Circuit, 2016
831 F.3d 1179

United States, ex rel. Newsham v. Lockheed Missiles and Space Co.
9th Circuit, 1999
190 F.3d 963

In a case of first impression the court holds that subdivisions (b) and (c) of the California anti-SLAPP statute do not conflict directly with Federal Rules of Civil Procedure and thus are applicable in federal diversity actions.

Verizon Delaware, Inc. v. Covad Communications Co.
9th Circuit, 2004
377 F.3d 1081

Verizon, as “incumbent local exchange carrier,” had several interconnection agreements with Covad, a competitive carrier. Verizon sued Covad for fraud, alleging that Covad had issued false “trouble tickets” as part of a scheme to reduce its own service costs. Covad asserted counterclaims. The district court granted summary judgment for defendant Covad on Verizon’s claims and summary judgment for Verizon on Covad’s counterclaims. Defendants filed special motions to strike Verizon’s original complaint under California’s anti-SLAPP statute, but the court granted Verizon leave to amend its complaint and deferred ruling on the motions to strike pending receipt of the amended complaint. The court then denied the motions to strike based on an analysis of the amended complaint. Both parties appealed the summary judgments; Covad appealed the denial of the anti-SLAPP motion. The appellate court affirms the district court’s denial of the anti-SLAPP motion on the grounds that “granting a defendant’s anti-SLAPP motion to strike a plaintiff’s initial complaint without granting the plaintiff leave to amend would directly collide with Fed.R.Civ.P. 15(a)’s policy favoring liberal amendment.”

Vess v. Ciba-Geigy Corp.
9th Circuit, 2003
317 F.3d 1097

Plaintiffs filed a class action against a drug manufacturer, the American Psychiatric Assn. (APA), and Children and Adults with Attention-Deficit/Hyperactivity Disorder (CHADD), alleging that they promoted sales of Ritalin (used to treat hyperactivity) in violation of California’s unfair business practice laws. Each defendant filed a motion to dismiss under Federal Rules of Procedure as well as an anti-SLAPP motion. The district court declined to rule on the anti-SLAPP motions before it had ruled on the motions to dismiss, deeming such motions premature. The district court first granted all of the motions to dismiss and then granted all of the anti-SLAPP motions. The appellate court agrees with the district court’s approach to ruling on the motions. It affirms the ruling on the anti-SLAPP motions of APA and CHADD on the grounds that the plaintiffs’ causes of action arise from speech protected by the First Amendment and plaintiffs had not demonstrated a probability of prevailing on their claims as required by the anti-SLAPP statute. With respect to the drug manufacturer, however, because the court reverses the district court’s dismissal of the complaint, it also reverses the grant of that defendant’s anti-SLAPP motion. (See also DuPont Merck Pharm. Co. v. Superior Court, California Court of Appeal, 4th District.)

Zamani v. Carnes
9th Circuit, 2007
491 F.3d 990

Bankruptcy Courts

Restaino v. Bah
U.S. Bankruptcy Appellate Panel of the Ninth Circuit, 2005
321 B.R. 41

Held: California’s anti-SLAPP statute is applicable in bankruptcy cases involving both federal questions and pendant state-law claims. The court agrees with the court in Globetrotter Software v. Elan Computer Group, Globetrotter v. Rainbow Technologies, Inc. (U.S. Dist. Ct. for No. Cal.; see above) that the anti-SLAPP statute is applicable to state-law claims but not to federal questions.

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Site last updated April 4, 2018 @ 12:53 pm; This content last updated April 2, 2018 @ 4:30 pm