- Yesterday, Ryder Ripps and Jeremy Cahen, the defendants, filed an interlocutory appeal on the district court’s denial of their motion to dismiss Yuga Lab’s trademark lawsuit over “Bored Apes” marks. Ripps asserted dismissal of the state law claims (Claims 4-11) was warranted based on California’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP), which protects against the vexatious use of lawsuits to stop speech on a public issue. Ripps also asserted that dismissal of the federal Lanham Act claims (Claims 1-3) was warranted under the Rogers test, which balances artistic expression with trademark protection.
- As we summarized in a prior article here, Judge John F. Walter rejected all of Ripps’ arguments.
- Under 9th Circuit precedent, the court allows an interlocutory appeal (before the conclusion of the litigation) only for the denial of the Anti-SLAPP motion. That means the 9th Circuit won’t review the district court’s analysis of the Rogers test on interlocutory appeal. As the Court explainted: “the anti-SLAPP statute does not apply to federal law causes of action. A motion to dismiss one cause of action is not, ordinarily, inextricably intertwined with a motion to strike a different cause of action under California’s anti-SLAPP law, even if the two claims are doctrinally similar.” Hilton v. Hallmark Cards, 599 F.3d 894, 901(9th Cir. 2010).
- Securing a dismissal of a claim under the Anti-SLAPP statute is difficult. The 9th Circuit, applying California law, has stated:
- (1) First, the defendant moving to strike must make “a threshold showing … that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant’s] right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in [subsection (e) of] the statute.” Equilon Enters., LLC v. Consumer Cause, Inc., 29 Cal.4th 53, 124 Cal.Rptr.2d 507, 52 P.3d 685, 694 (2002) (quoting Cal.Civ.Proc.Code § 425.16(b)(1)).
- (2) Second, “[i]f the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” Navellier v. Sletten, 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703, 708 (2002). “Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Hilton, 599 F.3d at 903.
- Even though the first element of speech on a public issue tends to be easy to satisfy, the second element is much harder for the plaintiff to meet:
- “[T]he statute does not bar a plaintiff from litigating an action that arises out of the defendant’s free speech or petitioning; it subjects to potential dismissal only those actions in which the plaintiff cannot state and substantiate a legally sufficient claim.” Navellier, 124 Cal.Rptr.2d 530, 52 P.3d at 711 (internal citations, quotation marks, and alternations omitted). At this second step of the anti-SLAPP inquiry, the required probability that Hilton will prevail need not be high. The California Supreme Court has sometimes suggested that suits subject to being stricken at step two are those that “lack [ ] even minimal merit.” Id. at 708. Hilton, 599 F.3d at 908.
- In other words, a legal claim will not be stricken under the Anti-SLAPP if the claim has potentially at least minimal merit.
*COI disclosure: I own two NFTs from Yuga Labs, but not from BAYC.