Brain Research Labs, LLC v. Clarke, 2012 WL 239578 (Cal.App.
1 Dist.)
BRL sued lawyer Thomas Clarke and his firm, alleging false
and defamatory statements about Procera, a BRL product marketed as a
supplement. Defendants moved to strike
under the anti-SLAPP law and the trial court denied the motion, holding that
though the statute applied, BRL had shown a probability of prevailing on the
merits. The court of appeals affirmed.
BRL contends Procera helps people who experience
“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 in state court on
behalf of a consumer, alleging that Procera was falsely advertised, that BRL
failed to disclose its dangers, and that Procera was an unapproved drug
marketed in violation of FDA regulations and California law.
In 2009, Clarke posted a video on YouTube saying that
Procera doesn’t work, that BRL’s claims about its efficacy are false and
illegal, and that Procera’s ingredients cause harmful side effects and
interactions with prescription drugs.
Clarke also attacked the makers of “so-called dietary supplements,”
calling them “crooks and cheats” and “scam artists,” who “do not care if you
live or die.” At the end, Clarke invited
viewers to contact him if they want an attorney to help them recover money “and
to put out of business those who have cheated you.” KTVU also broadcast a segment about Procera
with statements from Clarke.
BRL sued based on the following statements: (1) “I [Clarke]
do not want you to die or suffer long term injury or disability because you forsake
medical treatment for the false promises that are made by so many so-called
dietary supplements. These scam artists do not care if you live or die. They
only want you to live long enough to give them your money. Today I want to talk
to you about a so-called dietary supplement known as Procera AVH.” (2) “As you
can tell, Procera contains dangerous drugs with the potential to cause
extensive harm or even death.” (3) “This product is not an alternative to
proper medical attention for your illness [or] disease. Do not fool yourself.
If you're not getting medical treatment, you may die or suffer serious permanent
injury or disability.” (4) “Remember, the life you save [may] not only be your
own, but those of your friends, family, [neighbors] and fellow residents and citizens
of this great country.”
BRL also alleged falsity in that BRL hadn’t actually made
the claims Clarke challenged; Clarke said that Procera claimed to address “[d]epression
and other forms of mental illness, mini-strokes in the brain, the early stages
of dementia, the plaques associated with Alzheimer's disease, ... genetic
diseases such as Parkinson's or Lou Gehrig's disease... So what Procera claims
is that if you are suffering from symptoms of these types, the solution is,
what a surprise—this product. Just send money and all your problems will
disappear like so much snow on a sunny day.”
BRL alleged that it hadn’t advertised Procera for use in treating the
effects of a stroke or head injury, depression, or Alzheimer's disease, or for
the protection of the liver from the adverse effects of alcohol.
BRL also based its claims on statements by Clarke on TV: “Unadulterated
theft. You sell a fake product that doesn't do anything, with all kinds of
promises, and you get people to give you lots of money for it. It's a nice,
profitable scam.” “They [the FDA and
Federal Trade Commission] just don't view this as a high-priority item, even
though people are dying from some of these products.” “Absolutely ineffective. Matter of fact,
there have actually been trials with humans that have shown that it doesn't
work.” BRL alleged that it hadn’t committed “theft,” no one has died from
Procera, and there have been no trials showing it does not work.
BRL asserted claims for defamation, intentional interference
with contractual relationships/prospective economic advantage, unlawful/unfair
business practices, and false advertising under California state law. Defendants filed a motion to strike (BRL’s
initial claims against the TV station were voluntarily dismissed).
The trial court ruled that Clarke’s statements constituted
protected activity and related to an issue of public interest. It then found that the YouTube statements
fell within the commercial speech exemption to the anti-SLAPP statute, but the
statute still applied to all the causes of action because they were “mixed,”
including allegations related both to the protected TV statements and the
unprotected YouTube statements. The
court of appeals rejected the trial court’s reasoning here and held that the
commercial speech exemption didn’t apply to the YouTube statements.
The commercial speech exemption applies to statements about the speaker’s or a
competitor’s operations, goods, or services made for the purpose of promoting
the speaker’s goods or services to a consumer audience. Though the YouTube video was part of an ad
campaign, the challenged statements weren’t about Clarke’s services nor those
of Clarke’s competitors. They were about
a noncompetitor, BRL.
Thus, BRL needed to show a probability of prevailing under
any part of its claim to avoid having the claim stricken.
The court of appeals first found that the YouTube statements
weren’t protected by the litigation and common interest privileges. The litigation privilege applies when a
communication functions intrinsically to advance a litigant’s case. The court determined that the video didn’t
have the required functional connection to the consumer action to trigger the
privilege.
Defendants argued that the YouTube statements were
privileged as part of an attorney solicitation of potential plaintiffs for
their class action. However, that a
communication is protected by the litigation privilege doesn’t automatically
make each individual statement privileged if extraneous to the litigation. Even though BRL alleged that defendants’
intent was to solicit plaintiffs, intent isn’t dispositive. Here, the video content went beyond the class
action. The allegations in that complaint
related to one product, Procera. The
YouTube video included broad statements addressing “so-called dietary
supplements” generally, outlining the types of advertising claims allegedly
made by the manufacturers of such products, and cautioning consumers about the
risks of using them instead of obtaining proper medical treatment. The video
began with Clarke saying: “You probably know me as the attorney who's very
concerned about your health. I do not want you to die or suffer long term
injury or disability because you forsake medical treatment for the false
promises that are made by many so-called dietary supplements. These scam
artists do not care if you live or die. They only want you to live long enough
to give them your money.” (If Procera is
used as an example, I don’t see why this isn’t closely related enough to the
litigation, especially if this intro is a lead-in to a solicitation. Also, if it’s not about Procera, how can the
statements be defamatory of BRL?)
After the intro, Clarke said, “Today I want to talk to you
about a so-called dietary supplement known as Procera AVH”; he then discussed some
of the claims allegedly made by BRL about Procera. The video continued with
statements about Procera with more general assertions about “so-called dietary
supplements” and their manufacturers. Of BRL: “Like all scam artists to achieve
their goal of getting their hands on your money they will say, they will
promise you anything.” Later, the video
stated that failure to disclose potential side effects and interactions with
prescription drugs is “standard operating procedure for most dietary
supplements. Extravagant claims combined with silence about dangers and harm.” After stating that Procera is not an
alternative to proper medical attention, Clarke said: “Do not fool yourself. If
you're not getting proper medical treatment, you may die or suffer serious
permanent injury or disability. That is the simple blunt truth.”
Clarke also said that BRL was making illegal claims: “It's
also important for you to be aware that all of these claims are illegal.… So if
a dietary supplement like Procera AVH claims that it can cure an illness or
disease or the symptoms of an illness or disease then it is making an illegal
claim. So all these claims made by Procera are illegal.” Likewise, he offered to provide an
“informative booklet” about the “rules” that govern “[w]hat claims can and
cannot be made by the sellers of dietary supplements”; the booklet “also tells
you how to protect yourself from these crooks and cheats.” Finally, Clarke invited the viewer to call
with any questions about the booklet, and to contact Clarke if “you want an
attorney to help you recover your money and to put out of business those that
have cheated you,” again without specific reference to Procera. As a result, the video as a whole did not function
intrinsically to assist in obtaining judicial relief in the class action.
Along with the content, the YouTube distribution provided
support for this conclusion. The
litigation privilege generally doesn’t cover statements made to nonparticipants
in an action, particularly “litigating in the press.” Defendants’ argument that the video was
narrowly targeted because an internet user would find the video only by
conducting a search using terms such as Procera failed because the video was
generally available and could be accessed by anyone, regardless of whether he
or she had a potential claim.
The common interest privilege also failed; that’s a
conditional privilege for a communication made without malice to an interested
person by one who’s also interested, is sufficiently related to the interested
person, or is requested to give the information. General curiosity isn’t enough to trigger the
privilege, which doesn’t protect broadcasts or other communications to the
general public.
Thus, the denial of the anti-SLAPP motion was affirmed.
Comment: hunh? Did I
miss the part where BRL showed a probability of prevailing on its claims? Did defendants concede such a probability for purposes of this appeal? I am confused.
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