Intellectual Property Law

New Matter WINTER 2019, Volume 44, Number 4

Case Comments

Lowell Anderson

Stetina Brunda Garred & Brucker


"The primary question before us concerns the statute’s application to employment discrimination and retaliation claims. Here, a journalist alleges that his employer denied him promotions, gave him unfavorable assignments, and ultimately fired him for unlawful discriminatory and retaliatory reasons. Some courts of appeal, including the court in this case, have concluded the anti-SLAPP statute cannot be used to screen claims alleging discriminatory or retaliatory employment actions. We hold otherwise…. The defendant employer in this case has shown plaintiff’s claims arise in limited part—though not in whole—from protected activity. The employer is therefore entitled to a determination [of whether the claims arise from protect activity]." The anti-SLAPP motion must "’accept as true the evidence favorable to plaintiff’" not the allegations in the complaint. "To be clear, we do not hold that a defendant’s motives are categorically off-limits in determining whether an act qualifies as protected activity under the anti-SLAPP statute. We hold only that the plaintiff’s allegations cannot be dispositive of the question." A "defendant in a discrimination suit must show that the complained-of adverse action, in and of itself, is an act in furtherance of its speech or petitioning rights." Here, plagiarism concerns could provide a basis for the free speech act of terminating defendant, a staff writer, but that did not affect claims of discrimination or retaliation. The case here was remanded to the appeals court to reconsider the adequacy of evidence on termination. "The second question concerns the application of the anti-SLAPP statute to the journalist’s claim that defendant defamed him by privately discussing the alleged reasons for his termination with potential employers and others. We conclude that this claim need not be screened for merit because these privately communicated remarks were not made in connection with any issue of public significance, as the statute requires. (See § 425.16, subds.(a), (b)(1), (e)(4).)" As the anti-SLAPP statute did not apply to these statements the defamation claims could continue. Wilson v. Cable News Network, Inc., 7 Cal.5th 871, 444 P.3d 706 (2019).

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