California Supreme Court Rules that Lawyer Advertising is Protected by Anti-SLAPP Statute

In an important decision protecting free speech, the California Supreme Court has ruled that a lawyer who mentions a company’s allegedly defective product in an advertisement directed at potential clients may invoke the state’s powerful “anti-SLAPP” statute and get the case dismissed. The statute is so named because it is designed to protect people against “strategic lawsuits against public participation” – hence the acronym “SLAPP."

The anti-SLAPP statute basically consists of sections 425.16 and 425.17 of the California Code of Civil Procedure. In simple terms, it is designed to protect persons who speak out about issues of public interest. When that happens, it is not uncommon for an opponent of the speech to file suit – either for defamation or for interference with business – in an attempt to silence or intimidate the speaker. The classic example is a developer who sues a community group that is protesting a real estate project. If the defendant sues for defamation or interference with prospective business advantage (or some other type of claim that arises from the speech), the community group is entitled to invoke the anti-SLAPP statute and ask that the court dismiss the legal proceeding.

In the case of Simpson Strong-Tie Company, Inc. v. Gore, an attorney (Gore) advertised that persons who used an allegedly defective wood screw (a product manufactured by defendant Simpson Strong-Tie) might have a claim for damages. The attorney clearly was seeking to attract clients who might have claims against Simpson.

Simpson responded by suing Gore, contending that the ad was false and that is caused damage to the screw manufacturer’s business.

Gore moved to dismiss under the anti-SLAPP statute. The motion was granted, and that ruling was affirmed by both the court of appeal and, finally, by the state supreme court. At issue was the “business speech” exception to the anti-SLAPP procedure. Under that exception, when competitors are battling in the marketplace and allegedly false statements are made about a competitor’s product, that type of speech is NOT covered by the anti-SLAPP statute.

In the Simpson case, the California Supreme Court held that the “business speech” exception to the anti-SLAPP statute is to be interpreted and applied narrowly and, further, that in order to fall under the exception, the statement must be about a competitor’s product. In the Simpson case, the attorney’s statement was not about a competitor; it was about Simpson, who was not a competitor of Gore, but rather, a potential defendant who might be sued by one of Gore’s clients.

A copy of the Simpson decision is attached for your convenience.

We regularly advise individuals and companies about liability issues and one of our partners, Bo Links, is the author of the Civil Rights Module of the California Practice Series, published by Thomson Reuters, which provides extensive coverage of the anti-SLAPP statute among other pertinent legal doctrines.

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