Employment Law Case Notes

Publication year2019
AuthorBy Anthony J. Oncidi
Employment Law Case Notes

By Anthony J. Oncidi

Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)

Some of TV Producer's Discrimination Claims Could Be Stricken Under Anti-SLAPP Statute

Wilson v. Cable News Network, Inc., 7 Cal. 5th 871 (2019)

Stanley Wilson alleged discrimination, retaliation, wrongful termination, and defamation against CNN, where he worked as a television producer before his employment was terminated following an audit of his work involving suspected plagiarism. Defendants answered the complaint and then filed a special motion to strike all causes of action pursuant to Civil Procedure Code § 425.16 (the "anti-SLAPP" statute) on the ground that all of their staffing decisions (including those involving Wilson) were acts in furtherance of CNN's right of free speech that were "necessarily 'in connection' with a matter of public interest—news stories relating to current events and matters of interest to CNN's news consumers." The trial court granted CNN's anti-SLAPP motion and dismissed the lawsuit, but the court of appeal reversed, rejecting the characterization of defendants' allegedly discriminatory and retaliatory conduct as mere "staffing decisions" in furtherance of their free speech rights to determine who shapes the way they present news stories.

In this opinion, the California Supreme Court reversed in part and affirmed in part the court of appeal, holding that "the plaintiff's allegations about the defendant's invidious [i.e., discriminatory] motives will not shield the claim from the same preliminary [anti-SLAPP] screening for minimal merit that would apply to any other claim arising from protected activity." However, the supreme court further held that "CNN has the burden of showing Wilson's role bore such a relationship to its exercise of editorial control as to warrant protection under the anti-SLAPP statute. CNN has failed to make that showing." The supreme court remanded to the court of appeal the question of whether Wilson's termination claims (only) could be stricken under the anti-SLAPP statute—but the supreme court held that his claims of discrimination and retaliation involving CNN's alleged actions that preceded his termination would survive regardless because CNN was unaware of any potential plagiarism by Wilson until a few weeks before his termination. Also surviving CNN's anti-SLAPP motion was Wilson's defamation claim, which was based upon alleged statements by CNN that did not constitute "conduct in furtherance of the exercise of [free speech rights] in connection with a public issue or an issue of public interest" (quoting the anti-SLAPP statute). See also Jeffra v. California State Lottery, 39 Cal. App. 5th 471 (2019) (although employer's investigation of possible misconduct by employee was protected activity within the meaning of the anti-SLAPP statute, plaintiff established a probability of prevailing on the merits of his claim, so employer's motion was properly denied).

Bill Cosby May Be Liable for His Attorney's Statements About Accuser

Dickinson v. Cosby, 37 Cal. App. 5th 1138 (2019)

After Janice Dickinson went public with her accusations of rape against Bill Cosby, Cosby's attorney (Martin Singer) reacted with: (1) a letter demanding that media outlets not repeat Dickinson's allegedly false accusation, under threat of litigation; and (2) a press release characterizing Dickinson's rape accusation as a lie. Dickinson then brought suit against Cosby for defamation and related...

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