This week, the Ninth Circuit affirms the district court’s denial of a special motion to strike under California’s anti-SLAPP statute, with two of the judges on the panel questioning the Court’s precedent holding that such orders are appealable in the first place.
MARTINEZ v. ZOOMINFO TECHNOLOGIES, INC.
The Court holds that Martinez’s complaint falls within the public-interest exemption to the anti-SLAPP law.
The Panel: Judges McKeown, Desai, and Silver (D. Ariz.), with Judge McKeown writing for the Court, Judge McKeown concurring separately and Judge Desai concurring separately.
Key Highlight: “This longstanding protection demonstrates that California considers the right to control one’s name and likeness to be an important right affecting the public interest. Although we take no position on the merits, Martinez’s lawsuit, on the face of the complaint, seeks to enforce this right. California’s common-law and statutory recognition of this right suggests that if Martinez prevails, she will confer a significant benefit on thousands of Californians.”
Background: ZoomInfo is an online directory of professionals and their employment information. Clicking on a ZoomInfo link or searching ZoomInfo’s site for a person produces a “teaser profile” with the person’s name, employer, and job title. Plaintiff Kim Martinez, who objects to ZoomInfo providing that teaser profile of her information, sued on behalf of herself and a proposed class. She alleged that because ZoomInfo did not obtain her permission or compensate her, its promotional use of her name and likeness violates California’s Right of Publicity statute and her common-law privacy and intellectual property rights. ZoomInfo moved to strike the complaint under California’s anti-SLAPP law, which restrict lawsuits aimed at repressing speech. The district court rejected ZoomInfo’s motion to strike. It concluded that because ZoomInfo’s speech was commercial in nature, it was not protected by the anti-SLAPP law.
Result: The Ninth Circuit affirmed but on an alternative ground: It held that Martinez’s complaint fell within the public-interest exemption to the anti-SLAPP law.
The panel first held that it had jurisdiction to review the anti-SLAPP issue. Although appellate jurisdiction is generally limited to final orders, the panel was bound by circuit precedent holding that denial of an anti-SLAPP motion is a collateral order subject to immediate interlocutory appeal. The panel also held that Martinez had plausibly alleged that she suffered injury sufficient to establish Article III standing.
The panel then turned to whether Martinez’s suit should have been struck under the anti-SLAPP law. Although the district court did not reach the statutory exemptions to California’s anti-SLAPP law, the panel followed California law and addressed the applicability of those exemptions first.
California’s anti-SLAPP law does not apply to “any action brought solely in the public interest or on behalf of the general public.” Cal. Civ. Proc. Code § 425.17(b). The panel held that all three requirements for applying the public interest exemption were satisfied. First, Martinez did not seek relief greater than or different from the relief sought on behalf of the class. The panel rejected ZoomInfo’s argument that Martinez failed to satisfy this requirement because she requested damages. Although that request might require an individualized determination, it did not seek relief greater than that sought on behalf of all class members.
Second, Martinez’s action sought to “enforce an important right affecting the public interest” and to “confer a significant benefit” on the public. Cal. Civ. Proc. Code § 425.17(b)(2). California’s longstanding legal protections for publicity rights and privacy demonstrated that the state “considers the right to control one’s name and likeness to be an important right affecting the public interest.” Martinez’s lawsuit sought to enforce that right and would, if successful, confer an important benefit on thousands of Californians.
Third, private enforcement was necessary because no public entity had sought to enforce the right Martinez sought to vindicate, and disproportionately burdensome, because Martinez’s personal recovery was likely to be exceeded by her legal fees and dwarfed by the total recovery for the class.
Judge McKeown concurred separately, questioning “the propriety of our court reviewing on interlocutory appeal denials of anti-SLAPP motions to strike.” She explained that an anti-SLAPP motion is “wholly grounded in [California]’s procedural law, yet we have infused it with substantive significance.” And, apparently contrary to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the Court had adopted state procedural rules regarding when denial of an anti-SLAPP motion is appealable. Judge McKeown noted that the Ninth Circuit has adopted the minority position in a circuit split on this issue, and that many of her colleagues had previously questioned the propriety of interlocutory review of anti-SLAPP motions.
Judge Desai concurred separately, joined by Judge McKeown. She called for the Court to reconsider its precedent allowing interlocutory appeals of orders denying anti-SLAPP motions. An otherwise non-appealable, interlocutory order is only immediately reviewable if it (1) conclusively determined the disputed question, (2) resolved an important issue separate from the merits, and (3) is effectively unreviewable after final judgment. Judge Desai explained that although binding circuit precedent held that denial of an anti-SLAPP motion satisfies this standard, in her view the second and third requirements were not met. An anti-SLAPP motion requires consideration of the merits. And it is not effectively unreviewable on appeal from the final judgment because it turns on the merits and is not a form of immunity.
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