Lawyer Sued over YouTube Video Can't Use Anti-SLAPP Law

It's the medium, not the message, that did in Ropers Majeski Kohn & Bentley partner Thomas Clarke, Jr.

By posting on YouTube a video in which he solicited plaintiffs for a class action, the California First District Court of Appeal ruled that he'd opened himself up to a defamation suit ' and can't use the state's anti-SLAPP law to ward it off.

The First District panel expressed some sympathy with the statements Clarke made in the video, in which he reached out to class members for a suit against the maker of a dietary supplement. But, in finding the plaintiffs had shown a likelihood of prevailing on the merits, and that the litigation and common interest privileges don't apply, the court took issue with his use of the Internet.

“The manner in which Clarke disseminated [his call for plaintiffs], i.e., by making it available to the general public on the Internet, provides additional support, in accord with California case law, for the conclusion we reach here,” wrote Justice Martin Jenkins in the unpublished opinion. (A PDF of the opinion can be found at http://1.usa.gov/zkwc5I.)

The decision raises questions about the limits of the litigation privilege, and it also highlights some hot-button questions on the application of California's anti-SLAPP law that remain unresolved, say appellate specialists who keenly track developments in that law.

Litigation Privilege

Kerr & Wagstaffe partner James Wagstaffe, who represents Clarke and the firm, says they're “disappointed” that the court didn't apply long-held privileges for lawyers soliciting clients.

“Those communications have long been held to be part of the litigation privilege,” Wagstaffe says. “The only difference here was the communication took place on YouTube rather than in a meeting. In our view, that raises a cutting-edge issue.”

Supporters of a broad interpretation of the anti-SLAPP statute ' which was designed to protect free speech and public participation ' say the opinion exemplifies how plaintiffs are capitalizing on the confusion in the courts of appeal to make it harder for defamation defendants to block suits over protected activities by using the anti-SLAPP statute.

“It's becoming more and more common for plaintiffs lawyers to try to combine different allegations together in a way that's specifically designed to insulate a complaint from an anti-SLAPP motion,” says Horvitz & Levy partner Jeremy Rosen, who's not involved in the case but has handled anti-SLAPP appeals.

YouTube Solicitation

The plaintiff in the case is a litigation adversary of Clarke's. He targeted Brain Research Labs as the maker of Procera, which purported to help consumers with “forgetfulness, fuzzy focus and attention, mood swings and mental fatigue brought on by stress, sleep loss, poor diet and aging.”

Clarke filed a class action complaint in 2009, alleging that the company had made false and misleading statements about Procera, that it's a dangerous supplement, and that it was an unapproved drug marketed in violation of state and federal regulations. Clarke later uploaded a nine-minute video to YouTube to solicit potential class members who had bought Procera.

Brain Research Labs sued. Its complaint quoted liberally from the video, for example:

Greetings, I'm Tom Clarke. You probably know me as the attorney who's very concerned about your health. ' These scam artists do not care if you live or die. They only want you to live long enough to give them your money.

The supplement maker also sued Clarke and the law firm for comments he later made about the class action on a KTVU broadcast.

In 2010, San Francisco Superior Court Judge Harold Kahn ruled against Clarke and his firm.

“If Clarke's goal is to communicate with potential class members, there are far more narrowly tailored ways for him to have done so,” Kahn wrote. “Instead, by invoking the 'new media' of the Internet and its capacity to display videos, Clarke chose, in a 21st century way, to 'litigate in the press.'”

No SLAPP

The First District said Kahn got it right ' that Brain Research Labs had shown a likelihood of prevailing on the merits, and that the litigation and common interest privileges don't apply. Because of that, even the KTVU part of the cause of action survives.

Wagstaffe contends that Brain Research Labs had engaged in a clever pleading tactic ' melding the alleged defamations on KTVU and YouTube into a single cause of action so that it couldn't be disposed as a SLAPP, or strategic lawsuit against public participation. He said the court shouldn't have approved that tactic.

“What this opinion says is that as long as any part of the claim has merit, then the entire cause of action stays,” Rosen says. “I think that's incorrect. It allows on the back end what courts have said what you can't do on the front end.”

A lawyer for Brain Research Labs celebrated the First District's decision, saying the firm and its client were “extremely pleased” with the ruling.

“The court of appeal's analysis of the privileges asserted by the defendants versus protection from defamation, especially in such a public forum as the worldwide Internet, strikes an appropriate balance in upholding the rights of all parties,” wrote Jan Yoss, of Los Angeles firm Younesi & Yoss, in an e-mail. “We have always maintained that the comments in the YouTube video went well beyond any recognized protections, particularly the litigation privilege, and we believe that the court of appeal's decision validated this contention.”

Wagstaffe says his clients expect to appeal and are hopeful the California Supreme Court will grant review.

“It's an important issue for anti-SLAPP law and it's an important issue for lawyers,” Wagstaffe says. “We'll defend this case vigorously.”

It's the medium, not the message, that did in Ropers Majeski Kohn & Bentley partner Thomas Clarke, Jr.

By posting on YouTube a video in which he solicited plaintiffs for a class action, the California First District Court of Appeal ruled that he'd opened himself up to a defamation suit ' and can't use the state's anti-SLAPP law to ward it off.

The First District panel expressed some sympathy with the statements Clarke made in the video, in which he reached out to class members for a suit against the maker of a dietary supplement. But, in finding the plaintiffs had shown a likelihood of prevailing on the merits, and that the litigation and common interest privileges don't apply, the court took issue with his use of the Internet.

“The manner in which Clarke disseminated [his call for plaintiffs], i.e., by making it available to the general public on the Internet, provides additional support, in accord with California case law, for the conclusion we reach here,” wrote Justice Martin Jenkins in the unpublished opinion. (A PDF of the opinion can be found at http://1.usa.gov/zkwc5I.)

The decision raises questions about the limits of the litigation privilege, and it also highlights some hot-button questions on the application of California's anti-SLAPP law that remain unresolved, say appellate specialists who keenly track developments in that law.

Litigation Privilege

Kerr & Wagstaffe partner James Wagstaffe, who represents Clarke and the firm, says they're “disappointed” that the court didn't apply long-held privileges for lawyers soliciting clients.

“Those communications have long been held to be part of the litigation privilege,” Wagstaffe says. “The only difference here was the communication took place on YouTube rather than in a meeting. In our view, that raises a cutting-edge issue.”

Supporters of a broad interpretation of the anti-SLAPP statute ' which was designed to protect free speech and public participation ' say the opinion exemplifies how plaintiffs are capitalizing on the confusion in the courts of appeal to make it harder for defamation defendants to block suits over protected activities by using the anti-SLAPP statute.

“It's becoming more and more common for plaintiffs lawyers to try to combine different allegations together in a way that's specifically designed to insulate a complaint from an anti-SLAPP motion,” says Horvitz & Levy partner Jeremy Rosen, who's not involved in the case but has handled anti-SLAPP appeals.

YouTube Solicitation

The plaintiff in the case is a litigation adversary of Clarke's. He targeted Brain Research Labs as the maker of Procera, which purported to help consumers with “forgetfulness, fuzzy focus and attention, mood swings and mental fatigue brought on by stress, sleep loss, poor diet and aging.”

Clarke filed a class action complaint in 2009, alleging that the company had made false and misleading statements about Procera, that it's a dangerous supplement, and that it was an unapproved drug marketed in violation of state and federal regulations. Clarke later uploaded a nine-minute video to YouTube to solicit potential class members who had bought Procera.

Brain Research Labs sued. Its complaint quoted liberally from the video, for example:

Greetings, I'm Tom Clarke. You probably know me as the attorney who's very concerned about your health. ' These scam artists do not care if you live or die. They only want you to live long enough to give them your money.

The supplement maker also sued Clarke and the law firm for comments he later made about the class action on a KTVU broadcast.

In 2010, San Francisco Superior Court Judge Harold Kahn ruled against Clarke and his firm.

“If Clarke's goal is to communicate with potential class members, there are far more narrowly tailored ways for him to have done so,” Kahn wrote. “Instead, by invoking the 'new media' of the Internet and its capacity to display videos, Clarke chose, in a 21st century way, to 'litigate in the press.'”

No SLAPP

The First District said Kahn got it right ' that Brain Research Labs had shown a likelihood of prevailing on the merits, and that the litigation and common interest privileges don't apply. Because of that, even the KTVU part of the cause of action survives.

Wagstaffe contends that Brain Research Labs had engaged in a clever pleading tactic ' melding the alleged defamations on KTVU and YouTube into a single cause of action so that it couldn't be disposed as a SLAPP, or strategic lawsuit against public participation. He said the court shouldn't have approved that tactic.

“What this opinion says is that as long as any part of the claim has merit, then the entire cause of action stays,” Rosen says. “I think that's incorrect. It allows on the back end what courts have said what you can't do on the front end.”

A lawyer for Brain Research Labs celebrated the First District's decision, saying the firm and its client were “extremely pleased” with the ruling.

“The court of appeal's analysis of the privileges asserted by the defendants versus protection from defamation, especially in such a public forum as the worldwide Internet, strikes an appropriate balance in upholding the rights of all parties,” wrote Jan Yoss, of Los Angeles firm Younesi & Yoss, in an e-mail. “We have always maintained that the comments in the YouTube video went well beyond any recognized protections, particularly the litigation privilege, and we believe that the court of appeal's decision validated this contention.”

Wagstaffe says his clients expect to appeal and are hopeful the California Supreme Court will grant review.

“It's an important issue for anti-SLAPP law and it's an important issue for lawyers,” Wagstaffe says. “We'll defend this case vigorously.”