The California Supreme Court recently decided in a fact-intensive case that a law firm’s newspaper ad campaign, soliciting for consumer clients to join claims for allegedly defective screws used in home improvement construction, is entitled to the benefit of California’s anti-SLAPP law to obtain early dismissal of the manufacturer’s lawsuit for defamation and related claims. Under California’s increasingly convoluted anti-SLAPP law, a party’s exercise of First Amendment rights of free speech or government redress, is protected against certain lawsuits perceived as involving oppression by expensive litigation based on unfounded claims. Particularly at issue in the current case is the so-called commercial speech exception to SLAPP protection.
In its recent decision, the state Supreme Court held that (1) the “commercial speech” exception to SLAPP protection applies only to cases involving statements about a competitor’s operations, goods or services, made so as to market the speaker’s own goods or services; and (2) when a defendant raises a SLAPP defense, it is the plaintiff who then bears the burden of demonstrating that the “commercial speech” exception to SLAPP protection should apply. (Simpson Strong-Tie Company v. Gore, California Supreme Court No. S164174, May 17, 2010) In this case, the consumer law firm’s complained-of client solicitation advertising in a major metro newspaper stated in part, “If your deck was built . . . with galvanized screws manufactured by [named company] you may have certain legal rights and be entitled to monetary compensation . . . Please call if you would like an attorney to investigate whether you have a potential claim.” The Supreme Court found that because the law firm is not a competitor of the screw manufacturer, its ads were not within the “commercial speech” exception to SLAPP protection, and therefore the trial court properly granted the SLAPP motion to dismiss the screw maker’s defamation case.