Case Comments
| Publication year | 2019 |
| Author | Lowell Anderson |
Lowell Anderson
Stetina Brunda Garred & Brucker
In evaluating the probability of success of an Anti-SLAPP motion the court may consider "affidavits stating the facts upon which the liability or defense is based." Cal. Code Civ. P. § 425.16(b)(2). "An affidavit is a written declaration under oath, made without notice to the adverse party," (Cal. CCP § 2002) and "may be taken before any officer authorized to administer oaths." Cal. CCP § 2012. California's CCP also allows written declarations that are signed by a person certifying it to be true under penalty of perjury, and reflects the date and place of execution. Cal. CCP § 2015.5. Here, plea forms stated facts in a bribery case and qualified as declarations or their equivalent under CCP § 2015.5 and could be considered under CCP § 425.16. A transcript of grand jury testimony on the bribery was a written declaration under oath but was a written memorialization of an oral examination under oath and was the equivalent of an affidavit or declaration for purposes of § 425.16. But the above evidence must also be capable of being admitted at trial, which excludes evidence that is hearsay, speculative, not based on personal knowledge, or impermissible opinion. "In sum, at the second stage of an anti-SLAPP hearing, the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial." If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable. A decision relying on the plea forms and grand jury testimony to overrule an anti-SLAPP motion was affirmed. Sweetwater Union High School Dist. v. Gilbane Bldg. Co., 6 Cal.5th 931, 243 Cal.Rptr.3d 880 (2019).
Because Anti-SLAPP motions under Cal.Code. Civ. P. § 425.16 (e) (2) requires the "communication to be in connection 'with an issue under consideration or review' [cite omitted] the terms of subdivision (e)(2) make clear that 'it is insufficient to assert that the acts alleged were 'in connection with' an official proceeding." Instead, "[t]here must be a connection with an issue under review in that proceeding." Alternatively, under § 425.16(e)(4), "plaintiffs' causes of action must arise from defendants' conduct 'in connection with a public issue or an issue of public interest.'" "[A] matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest," and "[a] person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people." "In other words, a claim does not 'arise from' protected activity simply because it was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim. Rather, the protected activity must 'supply elements of the challenged claim.'" Here, plaintiff had a contract to negotiate exclusively with the NFL for a football stadium in Carson, California. City officers were sued for fraudulent misrepresentations regarding the renewal of that exclusivity contract and those misrepresentations were the wrongs complained of and also arose from the defendants' conduct. But the statements were not made in connection with the issue before the City Council (whether to extend plaintiff's exclusivity agreement) or an issue of public interest (building an NFL stadium—not who should represent the city in the negotiations). Any lie about renewing the exclusivity contract "had nothing to do with the merits of whether, how and in what form the stadium should be built." "[W]e reject the proposition that any connection at all— however fleeting or tangential—between the challenged conduct and an issue of public interest would suffice to satisfy the requirements of [425.16(e)(4) (issue of public importance)]." The City-officers failed to connect the identity of the negotiator for the NFL contract, with an issue of public importance and thus did not meet their burden of proving the alleged misrepresentations were connected to protected activity. Other alleged misrepresentations were made years before the renewal of the exclusive negotiating agreement came before the City Council while § 425.16(e)(2) requires statements or writings "made in connection with an issue under consideration or review."(original emphasis). "'[U]nder consideration or review' does not mean any issue a legislative body may conceivably decide to take up months or years in the future. Anti-SLAPP motions should not have been granted, so the case was remanded. Rand Resources, LLC v City of Carson, 6 Cal.5th 610, 243 Cal.Rptr.3d 1(2019).
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Secret communications between City officers and a third party who negotiated with the NFL and communications with the NFL, formed the basis for allegedly interfering with plaintiff's exclusive negotiating contract with the City of Carson regarding an NFL stadium in Carson. But the communications were made contemporaneously with the City's consideration of whether to extend plaintiff's exclusive negotiating contract and were thus protected speech and properly subject to an anti-SLAPP motion. The refusal to strike those claims was remanded to consider the probability of prevailing on the interference claims. Rand Resources, LLC v. City of Carson, 6 Cal.5th 610, 243 Cal.Rptr.3d 1 (2019).
An en banc decision written by Judge Reinhardt issued 11 days after his death. There were five concurring opinions, each with a different reason for concurring, so Reinhardt's vote made a difference. [I]t is generally understood that a judge may change his or her position up to the very moment when a decision is released." That is a judge is allowed to change his vote until the date the opinion issues. If a judge in a three-panel appellate dies or retires after argument or after submission without argument, the other two judges on the panel may issue a decision only if they agree. The Ninth Circuit decision allowed a deceased judge to exercise judicial power after his death. "But federal judges are appointed for life, not for eternity" The decision was vacated and remanded. Yovino v. Rizo, 139 S.Ct. 706, 203 L.3d. 2d 38 (2019).
Plaintiff, a trademark licensee, and defendant both appealed from a limited grant of a preliminary injunction barring certain cybersquatting activities. During the appeal the licensor was joined as a necessary party, summary judgment was granted to plaintiff on cybersquatting claims while all claims were voluntarily dismissed, and the court entered a permanent injunction. The final judgment made the appeal moot, so the appeal was dismissed for lack of jurisdiction. Defendants' appeal is properly taken from the final judgment, not the preliminary injunction. Heron Dev. Corp. v. Vacation Tours, Inc., 129 U.S.P.Q.2d 1782 (11th Cir. 2019).
Several Attorneys represented Mylan Pharmaceuticals and Valeant Pharmaceuticals in patent disputes under appeal, and also represented Salix Pharmaceuticals in patent disputes. The attorneys changed firms, joining Katten Muchin Rosenman and where they participated in trademark litigation against Bausch & Lomb—a corporate affiliate of both former clients Valeant and Salix. Katen's engagement letter with Bausch & Lomb was broad and incorporated Valeant's Outside Counsel Guidelines which included relationships of Valelant's "subsidiaries and affiliates,...and outside counsel" and forbid counsel from representing "any party" in "any matters" conflicting with "any Valeant entity." The engagement letter was never terminated. Under regional circuit law, the applicable Model Rule 1.7(a) proscribes concurrent representation of one client directly adverse to another client, including representing a corporate affiliate that should also be considered a client. The engagement letter through the Outside Counsel Guidelines included "subsidiaries and affiliates," and the involved affiliates were so interrelated that the affiliates were considered clients of Katten. Katten was disqualified in the trademark action against Bausch & Lomb. Dr. Falk Pharma GMBH v. Generico, LLC, 916 F.3d 975, 29 U.S.P.Q.2d 1466 (Fed. Cir. 2019).
Applying regional circuit law to evaluate conflicts of interest in a motion to disqualify, the Federal Circuit effectively adopted the factors in GSI Commerce Solns., Inc. v. BabyCenter, LLC, 618 F.3d 204, 211-12 (2d Cir. 2010) to evaluate whether two corporations were sufficiently affiliated to disqualify counsel. "In the absence of evidence to the contrary, we conclude that the relevant regional circuits would likely find the Second Circuit's reasoning persuasive and would therefore adopt its factors here." (emphasis added). Relevant factors "include '(i) the degree of operational commonality between affiliated entities, and (ii) the extent to which one depends financially on the other.'" "[S]hared or dependent control over operational and legal matters between the affiliates is significant to the inquiry" Here, attorneys represented subsidiaries on patent matters before switching firms to take action against another related subsidiary on trademark matters, where a parent company provided common administrative and support services to the subsidiaries, including accounting, cash management, finance, human resources, insurance and payroll services, as well as the same in-house legal department. Under Model Rule 1.7(a), the affiliates were sufficiently interrelated to give rise to a corporate affiliate conflict of interest. The attorneys and their law firm were disqualified. Dr. Falk Pharma GMBH v. Generico, LLC, 916 F.3d 975, 129 U.S.P.Q.2d 1466 (Fed. Cir. 2019).
A third party beneficiary can sue for breach only by establishing "(1) that it is...
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