– Lower courts departure from existing anti-SLAPP jurisprudence creates further confusion and enormous legal barriers to holding companies accountable for their false statements –

SACRAMENTO, Calif. – The California Supreme Court will hear oral argument in the high-stakes libel case FilmOn.com, Inc. v. DoubleVerify, Inc. on February 6, 2019. Los Angeles-based boutique litigation firm Baker Marquart partner Ryan G. Baker will argue on behalf of FilmOn. FilmOn aims to reverse the lower court’s ruling that the sale of private online advertising reports constitutes protected speech, even if the contents of the report contain false and misleading statements. This extension of existing anti-SLAPP jurisprudence would allow large and powerful interests to squash legitimate commercial suits in their infancy under the guise of free speech.

“Under the guise of ‘broadly’ interpreting California’s anti-SLAPP statute, the lower court used the statute as a sledgehammer to dismiss a purely private trade libel dispute between two commercial businesses,” said Baker. “This is not the purpose of the anti-SLAPP statute and unless this decision is reversed, it will only cause further confusion to an already muddled area of law.”

Background on the lawsuit: In November 2014, FilmOn.com, an internet-based television provider, filed a lawsuit against DoubleVerify (DV), a company that qualifies websites for online advertisers, for wrongfully labeling FilmOn’s website as “copyright infringers” and “distributors of adult content.” As a result, several advertising partners pulled their advertisements from FilmOn’s website. Further, misclassification of FilmOn’s content can result in being blacklisted by scores of potential advertisers, a tremendous threat to FilmOn’s primary source of revenue. Despite FilmOn’s numerous requests to get DV to correct these inaccurate statements, DV refused. FilmOn seeks compensation for the damages it has incurred as a result of these false and disparaging statements.

In 2015, a trial judge dismissed the lawsuit stating 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. In 2017, an appellate court upheld the dismissal. The California Supreme Court granted certiorari on November 15, 2017. Oral argument is set for February 6, 2019.

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, is 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 lower court’s decision to apply anti-SLAPP in this context creates further confusion in the already ill-defined area of determining whether an issue is of public interest or concern under the catch-all provision of the anti-SLAPP statute. The current ruling presents an enormous barrier to holding companies accountable for their false and misleading commercial statements.

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