My Big Fat Weak Lawsuit?
|By JULIE HILDEN|
|Tuesday, May. 22, 2007|
Earlier this year, a California Court of Appeal told a plaintiff who had sued the Internet Movie Data Base (IMDb) that not only would his suit be dismissed, but he'd have to pay IMDb's attorney's fees in the bargain.
The decision was significant in that it broadly interpreted a special California statute that dramatically alters the playing field for lawsuits that arise from the defendant's exercise of the right to free speech.
The plaintiff had sued IMDb for unfair competition, and for violating the California Consumer Legal Remedies Act, because it refused to list him in the credits on its website relating to the film "My Big Fat Greek Wedding" and two other films.
IMDb countered by noting its policy of only listing credits as they appear on screen, and noting that its review of the three films showed that the plaintiff was not, in fact, listed in the credits.
The ruling - which I will argue was correct - fired a warning shot in the battle over free speech. It did so by giving notice to potential plaintiffs that bringing a meritless lawsuit may carry a very high price tag, for the plaintiff may have to pay the defendant's attorneys' fees.
California's Anti-SLAPP Law: Making Plaintiffs Pay Defendants' Attorneys' Fees
Generally, the American system as to attorneys' fees is that each party pays their own - regardless of who is ultimately the victor in the lawsuit. Sometimes, however, statutes alter this baseline rule - often to encourage or discourage certain kinds of lawsuits, for policy reasons.
One example of a statute that favors plaintiffs is California's Bane Act, which applies to hate crimes. A plaintiff who proves he or she is a victim of a violent "hate crime" can potentially recover not only punitive damages, but attorneys' fees as well. The purpose of the statute is to encourage hate crime victims to step forward. (When statutes provide for attorneys' fees, the prevailing party in the case will file a motion with the court to recover the attorneys' fees which that party had to pay during the case. Generally, the attorneys involved must submit evidence of their bills, and show that the charges are reasonable.)
Conversely, one example of a statute that favors defendants is the statute at issue in the IMDb case --- known as the "anti-SLAPP" statute. "SLAPP" is an acronym for "Strategic Lawsuits Against Public Participation." In enacting the statute, the California legislature was worried about scenarios along the following lines: A developer wants to get a zoning variance in order to build in a particular community. At a community meeting, residents speak out against the proposed variances. In response, the developer sues them for slander.
The lawsuits are meritless, but the residents must spend a great deal of money defending them. As a result, not only are the residents who spoke out punished, but other residents who feel the same way are "chilled" from voicing their views to their elected representatives. Hence, the developers' strategic litigation has foreclosed public participation on an issue of genuine public interest.
The Potentially Broad Scope of the Anti-SLAPP Statute
Interestingly, however, while this kind of situation gave rise to the anti-SLAPP statute, the statute's language is broad enough to encompass many other situations, quite far afield from this paradigm case of the developer and the community.
That aspect of the statute has led to court battles in which plaintiffs facing anti-SLAPP motions try to draw upon legislative history to confine the statute to the paradigm case. Meanwhile, defendants ask the court to judge the statute by what it says, not the uncertain motivations of the legislators who enacted it.
A lawsuit falls within the scope of the anti-SLAPP statute when it arises from the defendant's "act in furtherance of [his or her] right of petition or free speech under the United States or California Constitution in connection with a public issue."
Note that the statute allows suits to be based on either the right of petition (that is, the right to take one's grievances to, and generally communicate freely with, one's representatives) or the right of free speech. Thus, if one looks to the statute's language alone, an anti-SLAPP motion may have nothing to do with any government actor at all - other than the court that may eventually enforce a law setting a rule governing conduct relating to two private parties.
For example, an anti-SLAPP motion could be filed by a newspaper seeking to get rid of a defamation suit targeting statements in one of its articles, as long as the statements are covered by the First Amendment (or California's equivalent) and were made "in connection with a public issue."
The statute gives examples of what it means for speech to be made "in connection with a public issue," and then includes a catch-all category for other ways in which the defendant might have been furthering its petition or free speech rights.
Attorney's Fees Awards Under the Anti-SLAPP Statute: Potentially Substantial
If a court finds that the speech at issue is constitutionally-protected and made in connection with a public issue, then it can grant the defendant's motion to strike the suit, and also grant the defendant its attorney's fees.
Those fees can be very substantial, for they include the costs not only of lawyers' researching and drafting an answer to the complaint, but also of lawyers' briefing the anti-SLAPP motion itself. That's right, the plaintiff may have to pay for the preparation of the very motion that proved its suit was meritless - showing that the California legislature and courts are good at meting out not only justice, but poetic justice at that.
How much could that amount run to? Assuming associates' time is billed out at about $200 an hour, and partners' time, at about $400 an hour (figures that I believe are more or less standard), then the amount could be quite high. In the IMDb case, the plaintiff will have to pay $6,270, but - depending on the complexity of the issues presented - in other cases the amount could be far higher, going well into five figures.
The Basis for the Court's Holding in the IMDb Case
In the IMDb case, the court focused on one example, given in the anti-SLAPP statute, of what type of act must form the basis for a lawsuit falling under the statute: a "written…statement or writing made in a place open to the public or a public forum in connection with an issue of public interest."
Here, there was a "written statement": the listing of credits. Moreover, the relevant "credits" portion of IMDb.com was, the court reasoned, a public forum, accessible to any Internet user. (Other sections of IMDb.com are currently accessible only to members.) The site's maintenance of open-access message boards or chatrooms was specifically noted by the court as a factor in its analysis.
Was the credits listing made in connection with "an issue of public interest"? The plaintiff argued that, to the contrary, the listing was merely "commercial speech" - which traditionally receives somewhat less constitutional protection. He compared the list of credits to a list of product ingredients that a 2003 California decision, Nagel v. Twin Laboratories Inc., had found did not come under the anti-SLAPP statute.
However, the court distinguished the case on the ground that, unlike the product's maker, IMDb - which does not itself sell movies - was not listing credits in the attempt to sell a product, but rather in order to inform the public.
In addition, the court found it significant that, unlike in the case involving the ingredients list, the credits listings were related to other speech on the site - for instance, on the message boards and chatrooms. It thus found the case more closely analogous to a case that also involved message boards and chatrooms - DuPont Merck Pharmaceutical Co. v. Superior Court - than to the Nagel case.
After rejecting the "commercial speech" argument, the court simply held that since the movie was an object of public interest, its credits were too. It's clear, here, that the court rightly wasn't confusing "public interest" with "public importance"; it was enough that people were talking about "My Big Fat Greek Wedding"; the movie didn't have to be as significant as, say, a war or election for the anti-SLAPP statute to apply.
Why the Decision Was the Right One
This decision was well-reasoned and correct. It was also, I believe, just - for not only was the plaintiff trying to make an end-run around the way film credits are allocated, but the end-run was, under the circumstances, indefensible.
The often-controversial matter of who gets a credit on a given film is currently the province of the Producers', Writers' and Directors' Guilds. In my view, it's defensible to contest the fairness of this process. (Interestingly, producer Bob Yari did so by going to court and claiming due process violations when the Producers' Guild refused to give him credit as a producer for the Oscar-winning film "Crash.") After all, a process with such high-stakes career consequences for so many people ought to be truly fair.
But it's not defensible, in my view, to ask an unrelated private party that is simply following the Guilds' decisionmaking to reverse the decision the Guilds make. The IMDb doesn't have, or pretend to have, the capacity to make the decision as to who gets what credit. It's just the messenger. And just as it's not fair to kill the messenger, it's not fair to sue the messenger either.
Following IMDb's example, if websites want to keep anti-SLAPP motions in their litigation arsenals, they will be well-advised to encourage the kind of "uninhibited, robust, and wide-open" forums for speech that the Supreme Court identified in New York Times Co. v. Sullivan as the First Amendment's ideal.