In a state that classifies clams, crabs and bumblebees as "fish", the ruling in BioCorRx, Inc. v. VDM Biochemicals, Inc., Case No. G061535 (Oct. 23, 2023) should come as no surprise.  The issue in the case was the "commercial speech" exception to California's anti-SLAPP (strategic lawsuit against public participation) statute.   Cal. Code Civ. Proc. § 425.17.   There are four conditions to this exception.  The first of these conditions is the "cause of action is against a person primarily engaged in the business of selling or leasing goods or services".  

BioCorRx claimed that this condition was not met because it was a research and development company.  According to BioCorRx, nearly all its revenues from were from research and development grants and nearly all its expenditures were on research and development, with only a small fraction of funds spent on other costs of sales.  The Court of Appeal, disagreed holding:

BioCorRx is not a research and development company.  It is a health services company that conducts research and development to further its treatment programs and line of commercial medications.  Thus, it is primarily engaged in the business of selling goods or services.

The statute, however, does not refer to the future purpose of the person.  Rather, it refers to activity in which the person is actually engaged.

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