Lawyer's anti-supplement video protected by anti-SLAPP law but claim still survives

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.