CA Supreme Court Reverses Anti-SLAPP Ruling in FilmOn.com, Inc. v. DoubleVerify, Inc. Libel Case

—Baker Marquart LLP successfully clarifies limitations of anti-SLAPP laws in California’s High Court—

LOS ANGELES, May 6, 2019 – Today, the California Supreme Court reversed an opinion of the Second Appellate District, holding that California’s anti-SLAPP statute does not bar a trade libel lawsuit filed between two commercial businesses. The new ruling reasoned that libelous statements made about FilmOn’s business in confidential reports sold by DoubleVerify, Inc. to online advertisers do not constitute protected speech under the anti-SLAPP statute. Partner Ryan G. Baker of Baker Marquart, who represents FilmOn, presented oral arguments to the California Supreme Court, arguing that the anti-SLAPP statute requires that courts take into consideration the commercial context of speech in determining whether a defendant’s speech is protected.

“We are thrilled the Supreme Court reversed the appellate court’s ruling,” said lead counsel Baker. “This means that large and powerful companies will not be allowed to squash legitimate commercial suits in their infancy under the guise of free speech, and FilmOn’sclaims against DoubleVerify may now proceed be tried on the merits.”

Background on the lawsuit: In November 2014, FilmOn.com (FilmOn), an internet-based entertainment provider, filed a lawsuit against DoubleVerify, Inc. (DV) for classifying FilmOn and its various websites as “copyright infringers” and “distributors of adult content.” Due to these false and defamatory statements made by DV in confidential reports supplied to online advertisers, several advertising partners pulled their advertisements from FilmOn’s website. FilmOn also was placed at risk of being blacklisted by scores of potential advertisers, a tremendous threat to an important source of FilmOn’s revenue. Despite FilmOn’s numerous requests that DV correct these inaccurate statements, DV refused.

In 2015, a trial judge dismissed FilmOn’s lawsuit, ruling that the contents of DV’s reports constituted “protected activity” under the catch-all provision codified in subdivision (e)(4) of Code of Civil Procedure section 425.16, the anti-SLAPP statute. In 2017, an appellate court upheld the dismissal and the California Supreme Court granted certiorari on November 15, 2017.

Oral arguments at the Supreme Court were held on February 6, 2019, where Baker argued that the anti-SLAPP statute was enacted to promote free speech by preventing large and powerful interests from silencing those exercising their First Amendment rights with an avalanche of legal fees. This case, however, was a dispute between two commercial enterprises over whether DoubleVerify’s harmful classifications confidentially sold to FilmOn’s business partners have any basis in fact. The appellate court’s decision to apply anti-SLAPP in this context created confusion in determining whether an issue is of public interest or concern under the catch-all provision of the anti-SLAPP statute. Baker argued that the ruling presented an enormous barrier to holding companies accountable for their false and misleading commercial statements. The Supreme Court agreed and issued an important decision that clarifies the limits of the catch-all provision in the anti-SLAPP statute.

FilmOn is represented by Baker Marquart Partners Ryan G. Baker and Scott M. Malzahn.

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