STUTZMAN v. ARMSTRONGNo. 2:13-CV-00116-MCE-KJN.
ROB STUTZMAN, et al., Plaintiffs,
LANCE ARMSTRONG, et al., Defendants.
LANCE ARMSTRONG, et al., Defendants.
United States District Court, E.D. California.
September 9, 2013.
Rob Stutzman, Plaintiff, represented by Clyde Talbot Turner, Turner And Associates P.A., Eric J. Marcy, Wilentz, Goldman & Spitzer, P.A., Henry H. Rossbacher, The Rossbacher Firm, Tracey Stevens Buck-Walsh, Law Office of Tracey Buck-Walsh & Kevin Roddy, Wilentz, Goldman & Spitzer. Jonathan Wheeler, Plaintiff, represented by Clyde Talbot Turner, Turner And Associates P.A., Eric J. Marcy, Wilentz, Goldman & Spitzer, P.A., Henry H. Rossbacher, The Rossbacher Firm, Tracey Stevens Buck-Walsh, Law Office of Tracey Buck-Walsh & Kevin Roddy, Wilentz, Goldman & Spitzer. Gloria Lauria, Plaintiff, represented by Clyde Talbot Turner, Turner And Associates P.A., Eric J. Marcy, Wilentz, Goldman & Spitzer, P.A., Henry H. Rossbacher, The Rossbacher Firm, Kevin Roddy, Wilentz, Goldman & Spitzer & Tracey Stevens Buck-Walsh, Law Office of Tracey Buck-Walsh. David Reimers, Plaintiff, represented by Clyde Talbot Turner, Turner And Associates P.A., Eric J. Marcy, Wilentz, Goldman & Spitzer, P.A., Henry H. Rossbacher, The Rossbacher Firm, Kevin Roddy, Wilentz, Goldman & Spitzer & Tracey Stevens Buck-Walsh, Law Office of Tracey Buck-Walsh. Scott Armstrong, Plaintiff, represented by Clyde Talbot Turner, Turner And Associates P.A., Eric J. Marcy, Wilentz, Goldman & Spitzer, P.A., Henry H. Rossbacher, The Rossbacher Firm, Kevin Roddy, Wilentz, Goldman & Spitzer & Tracey Stevens Buck-Walsh, Law Office of Tracey Buck-Walsh. Lance Armstrong, Defendant, represented by Zia F. Modabber, Katten Muchin Rosenman. Penguin Group (USA), Inc., Defendant, represented by F. Matthew Ralph, Dorsey & Whitney, LLP, Jonathan Michael Herman, Dorsey & Whitney LLP, Kent Jeffrey Schmidt, Dorsey & Whitney LLP & Katherine J. Santon, Dorsey and Whitney LLP. G.P. Putnam's Sons, Defendant, represented by Kent Jeffrey Schmidt, Dorsey & Whitney LLP. The Berkley Publishing Group, Defendant, represented by Kent Jeffrey Schmidt, Dorsey & Whitney LLP. Random House, Inc., Defendant, represented by Stephen George Contopulos, Sidley Austin, LLP. Broadway Books, Defendant, represented by Stephen George Contopulos, Sidley Austin, LLP. Crown Publishing Group, Defendant, represented by Stephen George Contopulos, Sidley Austin, LLP. Thomas W. Weisel, Defendant, represented by Robert Andrew Sacks, Sullivan and Cromwell LLP & John Darrow Echeverria, Sullivan & Cromwell, LLP.
William J. Stapleton, Defendant, represented by Marc S Harris, Scheper Kim & Harris LLP.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, Jr., Chief District Judge.
Through this action, Plaintiffs Rob Stutzman, Jonathan Wheeler, Gloria Lauria, David Reimers, and Scott Armstrong (collectively "Plaintiffs") seek redress for violations of California law arising from alleged misrepresentations contained in and related to Defendant Lance Armstrong's books, including
Plaintiffs, on behalf of themselves and others similarly situated, brought claims for violations of California's Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750
For the reasons set forth below, Defendants' Motions to Strike are GRANTED.
This class action arises from alleged misrepresentations contained in and disseminated about Defendant Lance Armstrong's books,
Plaintiffs alleged that during the Class Period
Plaintiffs further allege that prior to and during the Class Period, Defendants engaged in a scheme to defraud consumers, including Plaintiffs and Class Members, by creating and perpetuating the Lance Armstrong "brand" to enable Defendants to reap millions of dollars in unlawful profits. According to Plaintiffs, beginning in 1998, if not earlier, the Lance Armstrong "brand" was created by Defendant Armstrong, his financier and cycling team owner, Defendant Thomas W. Weisel, and his agent-manager, Defendant William J. Stapleton.
Plaintiffs allege that an integral part of the "multi-faceted scheme to defraud Plaintiffs" was the publication, advertising, marketing, and sale of the books throughout California. On the books' covers and flyleaves, as well as in advertisements, marketing, and promotional materials, Defendants portrayed Armstrong as a "regular, hardworking, motivated, complicated, occasionally pissed-off, T-shirt wearing guy," and as a devoted advocate for cancer patients. (ECF No. 22 at 22.) Plaintiffs claim that during the period from 1999 through 2012, Defendants knew that if the public believed that Armstrong had used performance enhancing drugs, Defendants would be unable to sell these books and the books would not be best sellers. Thus, according to Plaintiffs, another integral part of the scheme to defraud Plaintiffs, while maintaining and growing the Lance Armstrong "brand," was to vociferously and publicly deny any charge that Armstrong used performance enhancing drugs. Both Defendants Armstrong and Stapleton made such public denials from July 1999 through August 2012. Plaintiffs allege that such false and misleading denials were made during interviews broadcast on television worldwide, in print media, and in sworn testimony.
Furthermore, Plaintiffs claim that "another part of the scheme was the agreement, tacit or otherwise, on the part of the book publishers" Random House and Penguin "to ignore and/or avoid conducting a careful investigation into the merits of the doping charges that were repeatedly leveled against Armstrong during 1999 through 2012." (ECF No. 22 at 5.) Plaintiffs allege that the Publisher Defendants refused to make such an investigation so that they could continue advertising, marketing, and selling
"Sometime between 2001 and 2003," Plaintiff Stutzman "learned about the book
Plaintiff Reimers purchased
California's anti-SLAPP (strategic lawsuit against public participation) statute is designed to discourage suits that "masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so."
Cal. Civ. Proc. Code § 425.16(b)(1). The anti-SLAPP statute "was enacted to allow early dismissal of meritless first amendment cases aimed at chilling expression through costly, time-consuming litigation."
Cal. Civ. Proc. Code § 425.16(a). The California Legislature specifically provided that the anti-SLAPP statute should be "construed broadly."
The anti-SLAPP motion is available in federal court.
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."
"[T]hough the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim."
"Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute."
In deciding the instant anti-SLAPP motions to strike, the Court must address three major issues. First, the Court must determine whether Defendants have met their burden by making a threshold showing that the acts of which Plaintiffs complain were taken in furtherance of Defendants' right of free speech in connection with a public issue. Second, the Court must address Plaintiffs' contention that the First Amended Complaint is exempt from anti-SLAPP motions pursuant to California Civil Procedure Code § 425.17. Finally, the Court must determine whether Plaintiffs have met their burden of making a threshold showing that Plaintiffs' First Amended Complaint is legally sufficient and supported by a prima facie showing of facts. Each issue is addressed in turn, below.
A. Defendants' Burden
1. Protected Conduct
First, the activity the plaintiff challenges must have been conducted "in furtherance" of the exercise of free speech rights.
As used in the anti-SLAPP statute, an "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
Here, each Defendant contends that the activity alleged by Plaintiffs was "conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest," thus meeting the fourth type of act in furtherance of the right to free speech in connection with a public issue.
"Section 425.16 does not define `public interest' or `public issue.' Those terms are inherently amorphous and thus do not lend themselves to a precise, all-encompassing definition."
Here, it is without question that statements concerning Lance Armstrong "concern a person or entity in the public eye" and/or are "a topic of widespread, public interest." Lance Armstrong is a famous cyclist and his career is a topic of interest worldwide.
This limitation does not apply in this case, however, as the Armstrong Books do not concern only the personal details of Armstrong's life—they concern his public cycling career and cheating in the Tour de France—public activities, "which are the very things that interest people about [him]."
As such, under both tests used by the Ninth Circuit, the alleged conduct— including the speech in the Books, about the Books, and the conduct in furtherance of that speech, such as the alleged aiding and abetting by Defendants Weisel and Stapleton—was in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest. The alleged conduct therefore meets the requirements of California Civil Procedure Code section 425.16(e)(4). As such, Defendants meet their threshold burden under the anti-SLAPP statute.
Defendants also argue that the actions at issue are written or oral statements or writings made in a place open to the public or in a public forum in connection with an issue of public interest, thus meeting the requirements of section 425.16(e)(3). However, the Court need not analyze whether the requirements of subsection (e)(3) are satisfied, as the requirements of subsection (e)(4) are met.
2. Illegal Conduct
Plaintiffs contend that California's anti-SLAPP statute does not provide a shield for speech made in furtherance of Armstrong's illegal activity. (ECF No. 64 at 15.) It is true that "the anti-SLAPP statute cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law, and for that reason, not protected by constitutional guarantees of free speech and petition."
In this case, there are two issues with respect to Plaintiffs' argument that the criminal exception to the anti-SLAPP statute applies. First, Plaintiff argues that the Court must accept as true Plaintiffs' allegations that Armstrong's underlying conduct is illegal. (ECF No. 64 at 16.). However, Plaintiffs fail to provide conclusive evidence that the conduct at issue—Armstrong's statements that he did not dope, the content of the book, and the promotional materials for the book—is criminally illegal. Second, the so-called "criminal exception" applies only if the underlying protected conduct at issue is itself criminal. Plaintiffs focus on Armstrong's illegal conduct in smuggling or trafficking drugs. (ECF No. 64 ("[T]here is already evidence of USADA's uncontested charges of drug trafficking and criminal conspiracy against Armstrong . . . and a national TV interview in which Armstrong confessed to years of lies.").) However, drug trafficking and criminal conspiracy is simply not the conduct at issue in this case. The conduct at issue is the speech about the book and Armstrong's speech about whether he used drugs. Armstrong's lies about his use of drugs are simply not criminal conduct.
Thus, Plaintiffs' argument that Defendants are not entitled to the protection of the anti-SLAPP statute because the underlying conduct is illegal is without merit.
B. Statutory Exemptions
In 2003, the California Legislature enacted section 425.17 to curb the "disturbing abuse" of the anti-SLAPP statute. Cal. Civ. Proc. Code § 425.17(a). "This exception statute covers both public interest lawsuits, under subdivision (b), and "commercial speech," under subdivision (c)."
Under California Civil Procedure Code section 425.17(b), the anti-SLAPP procedure "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 exemption of section 425.17(b) applies only if each of the following conditions is met:
Cal. Civ. Proc. Code § 425.17(b). To be exempt, the action must be "brought solely in the public interest or on behalf of the general public" and meet the three conditions set forth in section 425.17(b).
California Civil Procedure Code section 425.17(c) lays out the so-called "commercial speech exemption" to the anti-SLAPP procedure. Cal. Civ. Proc. Code § 425.17(c);
The exemptions of sections 425.17(b) and (c) do not apply to "any person engaged in the dissemination of ideas or expression in any book or academic journal, while engaged in the gathering, receiving, or processing of information for communication to the public." Cal. Civ. Proc. Code § 425.17(d)(1). Likewise, subdivisions (b) and (c) do not apply to "[a]ny action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation." Cal. Civ. Proc. Code § 425.17(d)(2). Thus, claims falling within the parameters of subsection (d) are "excepted from the section 425.16 exemption" of subsections (b) and (c). Ingels v. Westwood One Broadcasting Services, Inc.,
Few cases have dealt with the application of subsection (d), and the parties present no cases determining whether subsection (d) applies to publishers and individuals connected with the creation and distribution of a published book. Where there is no binding authority, a court must undertake to ascertain the meaning of the statute by use of statutory interpretation.
"Statutes must be interpreted, if possible, to give each word some operative effect."
1. Plain Meaning
The Court's interpretation begins with the text of the statute.
Here, the questions the Court must resolve in interpreting the statute is the meaning of the word "work" as it is used in subsection (d)(2), and whether the Armstrong Books are included within that meaning. In interpreting subsection (d)(2), the Second District for the California Court of Appeal stated that "[t]he word `work,' as ordinarily understood, means `something produced or accomplished by effort, exertion, or exercise of skill,' or `something produced by the exercise of creative talent or expenditure of creative effort.'"
Under the plain meaning of the word "work," that the Books at issue are "works" within the meaning of the statute. Both
However, because the Legislature has accompanied the word `work' with descriptive terms and illustrative examples, the Court's analysis does not end at considering the meaning of the word "work." Rather, the doctrine of
Subdivision (d)(2) includes "any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation." Cal. Civ. Proc. Code § 425.17(d)(2). "The phrase `including, but not limited to' is a term of enlargement, and signals the Legislature's intent that subdivision (d)(2) applies to items not specifically listed in the provision."
Viewed in the context of the anti-SLAPP statute, the Armstrong Books are no different from the illustrative examples listed in subsection (d)(2). These books are "literary works" within the meaning of the statute; although "books" are not specifically listed in subsection (d)(2), books are similar to those things that are specifically enumerated in the statute—"a motion picture or television program, or an article published in a newspaper or magazine of general circulation." Cal. Civ. Proc. Code § 425.17(d)(2);
Other cases analyzing the scope of subsection (d)(2) have reached results that support the Court's conclusion. In
Accordingly, under the plain meaning of the statute, this case falls within the ambit of subsection (d)(2).
2. Legislative History and Public Policy
An examination of the legislative history further supports the Court's conclusion that this action is within the ambit of section 425.17(d). The California Senate bill analysis includes the following explanation for subsection (d):
In the Assembly Committee on the Judiciary hearing analyzing the proposed subsection (d) amendment, the Assembly Committee stated:
Assembly Com. on Judiciary, Anti-SLAPP Motions: Ensuring Appropriate Use of the Procedure, Sen. Bill No. 789 (2001-2002 Reg. Sess.). The Assembly Committee on the Judiciary's analysis also states:
Assembly Com. on Judiciary, Anti-SLAPP Motions: Appropriate Use of the Procedure, Sen. Bill No. 515 (2003-2004 Reg. Sess.).
This legislative history makes clear that subsection (d) was intended to ensure that anti-SLAPP motions remained available to persons or entities engaged in the "publishing of books" and "all those . . . sued for protected activities based upon creative and promotional activities regarding . . . literary . . . works." Assembly Com. on Judiciary, Anti-SLAPP Motions: Ensuring Appropriate Use of the Procedure, Sen. Bill No. 789 (2001-2002 Reg. Sess.). Although the legislative history specifically discusses the motion picture industry as a "media defendant," this statement does not preclude publishers from being counted as "media defendants," as Plaintiffs suggest. Indeed, the legislative history from the Assembly Committee on the Judiciary makes clear that those engaged in publishing books are considered media defendants for purposes of this statute. As such, the Publisher Defendants are protected from the application of subsections (b) and (c), and may still bring an anti-SLAPP motion. Likewise, the individual Defendants in this case—Armstrong, Stapleton, and Weisel—are "sued for [their] protected activities based upon creative and promotional activities regarding . . . literary . . . works."
Public policy also weighs in favor of allowing Defendants to bring an anti-SLAPP motion. As the legislative history notes, these Defendants are specifically the type of defendants that the Legislature sought to protect by enacting subsection (d)—"those engaged in speech-related activities."
Thus, the instant action is an "action" against "person[s] or entit[ies] based upon the creation, dissemination, . . . advertisement, or other similar promotion of" a "literary" "work." Cal. Civ. Proc. Code § 425.17(d)(2). As such, the Court need not determine whether the action also falls within the ambit of subsections (b) and (c), as the action is exempt from these statutory exemptions to the anti-SLAPP statute. Defendants are therefore entitled to bring an anti-SLAPP motion, and have met their initial burden under the statutory framework.
C. Plaintiffs' Burden
"[T]he [anti-SLAPP] 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."
Here, because Defendants have met their initial burden under the anti-SLAPP statute, and because the action is not subject to a statutory exemption, the burden shifts to Plaintiffs to show a reasonable probability of prevailing on their claims. Defendant Armstrong contends only that Plaintiffs cannot establish a probability of proving their UCL, FAL, and CLRA claims. All other Defendants move to strike each of Plaintiffs' claims.
1. UCL, FAL, and CLRA Claims
Defendants raise the First Amendment as a defense to Plaintiffs UCL, FAL, and CLRA claims, arguing that their alleged conduct is protected by the First Amendment. "California's consumer protection laws, like the unfair competition law, govern only commercial speech."
"As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."
The Ninth Circuit has adopted a three-pronged analysis based on Supreme Court precedent to determine whether speech is commercial. First, the court considers whether the publication fits within the "core notion of commercial speech."
If speech does more than propose a commercial transaction, but contains "mixed content"—that is, both commercial and non-commercial elements—the Ninth Circuit applies the Supreme Court's
Finally, even if the publication meets this threshold commercial speech classification, courts must determine whether the speech still receives full First Amendment protection, because the commercial aspects of the speech are "inextricably intertwined" with otherwise fully protected speech, such that the publication sheds its commercial character and becomes fully protected speech.
In this case, the speech at issue can be divided into three types or categories. The first type includes those statements contained within the Books themselves. The second type includes statements relating to the Books, including promotional statements made by Defendants about the book and the statements contained on the flyleaves and covers of the Books. The third type contains those statements made by Armstrong and Stapleton relating to Armstrong's use of performance enhancing drugs, but which do not specifically reference the Books or promote the Books.
Statements Contained Within the Books
First, the Court must ask whether the statements contained within the Armstrong Books fit within the "core notion of commercial speech."
The content of the Armstrong Books is not an advertisement for a product; rather, the statements are Armstrong's account, albeit partially untruthful, of his life and cycling career. The Books discuss, among other things, Defendant Armstrong's childhood, his personal relationships, his battle with cancer, and his cycling career. The Court need not go further in analyzing the commercial nature of this speech, as the first prong of the Ninth Circuit's analysis is not met, and the statements contained within the Books are not "mixed content."
Indeed, as the Court of Appeal noted in
While Plaintiffs in this case do not go so far as to ignore "modern jurisprudence" and dispute that the content of the Books is entitled to full First Amendment protection, they come quite close. During oral argument, the Court asked Plaintiffs' counsel a very basic and direct question about whether, in general, a book standing alone is entitled to the protections of the First Amendment. Plaintiffs' counsel either could not or would not answer the Court's question as to whether in general, a book is entitled to full First Amendment protection. Plaintiffs' counsel chose instead to avoid answering the Court's direct question with a direct answer, and said instead: "Your hypothetical is interesting, but the fact of the matter is that's not how books are sold nowadays." (Mot. Hr'g Tr. 33, Aug. 8, 2013.) As defense counsel then observed, "[The Court's] hypothetical and the way it was responded to [by Plaintiffs] is telling because you get the same tap dance that we got in the papers." (
Thus, the Court concludes, despite Plaintiffs' allegations that the Armstrong Books contained false and misleading statements, that the content of the Books is afforded full First Amendment protection. As stated in
Accordingly, with respect to the statements contained within the Books, the analysis ends here—the speech is not commercial, and is afforded full First Amendment protection. The UCL, FAL, and CLRA claims targeted at this speech therefore fail as a matter of law, and Plaintiffs cannot show a likelihood of success on these claims.
Likewise, the statements related to Defendant Armstrong's use of PEDs do more than propose a commercial transaction. Simply put, these statements propose no commercial transaction at all. As such, under the Ninth Circuit's analysis, the inquiry should end here.
However, assuming, for the sake of thorough analysis, that the statements contain "mixed content"—that is, contain both commercial and non-commercial elements—the Court must next consider the three
Accordingly, the Court finds that Defendants' public statements regarding Armstrong's use of performance enhancing drugs do not constitute commercial speech. Thus, the UCL, FAL, and CLRA claims targeted at this speech fail as a matter of law, and Plaintiffs therefore fail to show a likelihood of success on these claims as to this particular type of speech.
Promotional Statements Relating to the Armstrong Books
Finally, the Court must assess the commercial nature of the statements on the flyleaves, covers, and book jackets of the Armstrong Books, as well as other promotional materials for the Books. According to Plaintiffs, Defendants made promotional statements about the Armstrong Books, including the representations that each of the Books is a "nonfiction `biography'" about the "Tour De France Winner" or the "Five Time Tour de France Winner." (ECF No. 22 at 17-18.) Plaintiffs allege that these "false and misleading statements" were made "in media press kits, during television and newspaper interviews, on Internet websites, and at personal appearances made by Armstrong." (
The speech at issue does more than merely propose a commercial transaction, because it describes the contents of the Books, the Books' classification as a biography, and describes one of the Books' authors, Lance Armstrong. Given that the speech does more than propose a commercial transaction, the Court must consider whether the speech contains mixed content—that is, both commercial and non-commercial elements.
Thus, the Court examines these statements under the three Bolger factors. First, the statements on the flyleaves and other promotional materials made by Defendants about the Books are by no means "admittedly an advertisement."
The Court therefore assumes that two of the three
The third prong of the
Here, the commercial aspects of the book, and the promotional statements made about the book, are inextricably bound to the non-commercial contents of the books.
As such, the promotional materials relating to the Books are inextricably intertwined with the Books' contents, which is non-commercial speech. Thus, these promotional materials are also entitled to full First Amendment protection as non-commercial speech. As set forth above, UCL, FAL, and CLRA claims targeting non-commercial speech fail as a matter of law. Plaintiffs therefore cannot show a likelihood of success on the merits as to these causes of action.
Defendants' anti-SLAPP motions to strike Plaintiffs' UCL, FAL, and CLRA claims are therefore GRANTED.
The Publisher Defendants, Stapleton, and Weisel also move to strike Plaintiffs' fraud claims. Under California law, the elements of fraud are: "(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or `scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage."
The Publisher Defendants contend that there is no misrepresentation on their part, as the only statements specifically attributed to the Publisher Defendants are that the book is a "biography" and "nonfiction" and Armstrong is the Tour de France "winner." Defendants contend that these statements are in fact true—Defendant Armstrong did win the Tour de France, even though these victories were later taken away from him, and the book is a biography and nonfiction, even though it is now apparent that the book contains false statements.
Other courts have held that "the term nonfiction only means that the literature is based on true stories or events, not that every statement is in fact demonstrably true."
As to Defendants Stapleton and Weisel, the Court addresses only the most glaring issue at this point. First, nowhere do Plaintiffs plead that they relied on Stapleton's allegedly fraudulent statements in purchasing the Books. Moreover, Plaintiffs do not allege a single statement by Defendant Weisel, much less allege that Plaintiffs relied on a statement by Defendant Weisel in purchasing the Books. Plaintiffs instead allege that Plaintiff Stutzman "learned about the book
Plaintiff Lauria "was inspired by advertising featuring reports of Armstrong's successful battle against cancer, which moved her to purchase [Defendant] Armstrong's books." (
Reliance must be pled to state a claim for fraud.
Finally, Plaintiffs make only vague allegations regarding Defendants Weisel and Stapleton. Plaintiffs allege that Defendant Stapleton, along with Defendant Weisel, "counseled, assisted, and encouraged . . . Armstrong" for the purpose of "building and maintaining the Lance Armstrong `brand' that this trio conceived during 1997-1999." (ECF No. 22 at 22.) Plaintiffs cite to interviews that Defendant Stapleton gave in which he discusses the Lance Armstrong brand. However, these interviews do not discuss the Armstrong Books. Plaintiffs make the generalized, repeated allegation that Defendants Armstrong, Weisel, and Stapleton "built, expanded, maintained, and defended" the "Lance Armstrong brand." (ECF No. 22 at 24.) Plaintiffs also allege that Defendant Weisel conspired with, or aided and abetted, his co-Defendants in writing, publishing, and marketing the Armstrong Books. The majority of the allegations regarding Defendant Weisel individually concern Defendant Weisel's involvement with the United States Postal Service cycling team as a financial backer.
Plaintiffs fail to allege sufficient facts showing that Defendants Weisel or Stapleton engaged in any fraudulent conduct. Under Federal Rule of Civil Procedure 9(b), a plaintiff pleading a claim of fraud, or any claim that is "grounded in fraud" must "state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). Rule 9(b) requires the plaintiff to set forth with particularity the "who, what, when, where, and how of the misconduct charged."
3. Negligent Misrepresentation
California's cause of action for "negligent misrepresentation" requires: (1) "a misrepresentation of a past or existing material fact"; (2) "without reasonable grounds for believing it to be true"; (3) "with intent to induce another's reliance on the fact misrepresented"; (4) "justifiable reliance thereon by the party to whom the misrepresentation was directed"; and (5) "damages."
The Publisher Defendants assert that Plaintiffs cannot state a viable claim against them for negligent misrepresentation because the Ninth Circuit has held that publishers "owe no duty to investigate the accuracy of the contents of the books it publishes."
Thus, "the gentle tug of the First Amendment and the values embodied therein ... remind us of the social cost" were the Court to create such a duty for publishers, and allow publishers to be held liable for allegedly false statements contained within a book. Winter, 938 F.2d at 1037. To this end, although Plaintiffs assert that the public interest in this case weighs in favor of protecting consumers from books that contain false statements, the case law makes clear that the public interest swings in the opposite direction, towards closely guarding the right to free speech and the free flow of ideas that the First Amendment seeks to protect.
As such, Plaintiffs cannot show that they have a probability of success on their claim for negligent misrepresentation against the Publisher Defendants. Thus, the Publisher Defendants' anti-SLAPP motion to strike the claim for negligent misrepresentation is GRANTED.
Plaintiffs also fail to state a legally cognizable negligent misrepresentation claim against Defendants Weisel and Stapleton. As set forth above, Plaintiffs do not allege a single statement made by Defendant Weisel. Rather, Plaintiffs make conclusory allegations that Defendant Weisel aided and abetted the actions of the other Defendants. Defendant Weisel therefore has made no "misrepresentation of a past or existing material fact."
Moreover, the First Amended Complaint is devoid of allegations that Plaintiffs relied on misrepresentations by either Defendant Weisel or Defendant Stapleton.
Therefore, it is clear that Plaintiffs have not shown a likelihood of success on this claim against either Defendant Weisel or Defendant Stapleton. As such, their motion to strike Plaintiffs' claim for negligent misrepresentation is GRANTED.
D. Leave to Amend
The Ninth Circuit has clearly stated that "granting a defendant's anti-SLAPP motion to strike a plaintiff's initial complaint without granting the plaintiff leave to amend would directly collide with Federal Rule of Civil Procedure 15(a)'s policy favoring liberal amendment."
Each Defendant has requested attorneys' fees and costs incurred in bringing their respective anti-SLAPP motions. California's anti-SLAPP statute provides a mechanism for a defendant to strike civil actions or claims brought primarily to chill the exercise of free speech. Cal. Civ. Proc. Code § 425.16(b)(1). In order to deter such chilling, "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." Id. § 425.16(c). However, when a plaintiff is granted leave to amend the complaint, a defendant whose anti-SLAPP motion is granted is not a "prevailing party" for purposes of the anti-SLAPP statutory framework.
Accordingly, Defendants' requests for attorneys' fees are DENIED.
For the reasons set forth above, it IS HEREBY ORDERED THAT:
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