[00:00:02] Speaker 00:
Thank you, Your Honors, and good morning.

[00:00:04] Speaker 00:
My name is Chase Coburn.

[00:00:05] Speaker 00:
I represent the appellants in this matter.

[00:00:07] Speaker 00:
I'm joined here by my co-counsel this morning, Mr. Handel and Mrs. Bogorad.

[00:00:12] Speaker 00:
Thank you for hearing argument in this matter.

[00:00:14] Speaker 00:
I'd like to reserve five minutes for rebuttal, if that's okay.

[00:00:16] Speaker 00:
All right, please welcome to the court.

[00:00:17] Speaker 00:
Thank you.

[00:00:20] Speaker 00:
May it please the court.

[00:00:22] Speaker 00:
The appellees have admitted in their complaint that all of the alleged defamatory statements in this case were made in a public forum on an issue of public interest.

[00:00:31] Speaker 00:
Those admissions appear on pages 43 through 47 of our opening brief and include allegations that the operative online statements generated enough public interest to deprive the Apple ease of a market and influence over 90% of their customers.

[00:00:51] Speaker 01:
So, Council, let's be clear what they admitted.

[00:00:55] Speaker 01:
That may be what they admitted, but that doesn't admit, that doesn't acknowledge that that is of public interest.

[00:01:04] Speaker 01:
Well, Your Honor, we would- I mean, I understand your argument is that that satisfies public interest, but what case do you have to rely on for that?

[00:01:13] Speaker 00:
That the market harm generates?

[00:01:15] Speaker 01:
Yeah, market harm to an individual company is of public interest.

[00:01:19] Speaker 00:
So there are cases that address when there's allegations of harm.

[00:01:24] Speaker 00:
For example, the Computer Express case acknowledges that it was actually investor harm in that case.

[00:01:31] Speaker 00:
That was the damages that were alleged.

[00:01:32] Speaker 00:
They said that the statements were going to

[00:01:36] Speaker 00:
to swayed investors from investing in the company and the court said that that was clearly it was important enough to the public to generate a public interest on that basis.

[00:01:46] Speaker 00:
So and we also rely on the Bonnie case which says that we're supposed to take the complaint at face value.

[00:01:52] Speaker 00:
We're supposed to assume that the complaint means what it says and if they're saying that

[00:01:57] Speaker 00:
this was of sufficient public interest to dissuade customers from purchasing their products, then that is something that is definitely within the public interest.

[00:02:06] Speaker 03:
The issue, obviously, though, is that these are not just kind of any statements about, you know, I went to this restaurant and I found it unsatisfactory.

[00:02:14] Speaker 03:
It seems to be part of just this larger really personal dispute between the parties.

[00:02:20] Speaker 03:
How is that in connection with the public interest or issue?

[00:02:24] Speaker 00:
Well, I think it's both, Your Honor.

[00:02:25] Speaker 00:
I think that there are certainly personal aspects to any statement.

[00:02:28] Speaker 00:
I think anybody who makes a statement has some kind of personal interest in what they're saying.

[00:02:33] Speaker 00:
But that doesn't take it out of the public interest.

[00:02:35] Speaker 00:
That's what the geyser case says.

[00:02:37] Speaker 00:
It says that just because something has a personal motivation doesn't necessarily mean it's not in the public interest.

[00:02:43] Speaker 03:
But does this mean that anybody can just post anything?

[00:02:46] Speaker 03:
Some of these comments are very troubling.

[00:02:48] Speaker 03:
Anybody can just post anything on the internet on a website like this and then we come in and have an anti-slap motion that should succeed?

[00:02:57] Speaker 00:
No, Your Honor.

[00:02:58] Speaker 00:
There are exceptions to the public interest, the anti-SLAP statute.

[00:03:03] Speaker 00:
There's exceptions for statements that would be illegal as a matter of law, statements maybe on like a criminal extortion type of scenario or true threats that implicate violence.

[00:03:13] Speaker 00:
Those would be outside the anti-SLAP.

[00:03:15] Speaker 00:
Nothing like that's alleged here.

[00:03:17] Speaker 00:
So these statements are not alleged to be illegal as a matter of law.

[00:03:21] Speaker 00:
They're alleged to be defamatory and libelous.

[00:03:24] Speaker 00:
That's it.

[00:03:24] Speaker 00:
So that's a classic anti-slap situation.

[00:03:27] Speaker 04:
How do you distinguish the Yankees, the fake pills case?

[00:03:32] Speaker 00:
Yes, Your Honor.

[00:03:33] Speaker 00:
So that case, I would first note that it's at least questionable whether that case

[00:03:38] Speaker 00:
is still good law after the Geyser decision, which kind of eliminates this dichotomy between personal and private.

[00:03:45] Speaker 00:
That case seems to assume that it can only be one or the other.

[00:03:49] Speaker 00:
It can be public or private.

[00:03:51] Speaker 00:
So we disagree with that.

[00:03:53] Speaker 00:
We think that that's wrong on the law.

[00:03:55] Speaker 00:
But even if it's still valid, we think that that case is distinguishable because all of the statements in that case were addressing the private dispute.

[00:04:04] Speaker 00:
Okay, so the private dispute was over a cake order.

[00:04:07] Speaker 00:
All of the statements were about the cake order.

[00:04:08] Speaker 00:
In this case, the only private dispute that's been alleged is a parking lot, parking space dispute.

[00:04:14] Speaker 00:
None of the statements talk about a parking lot, parking space dispute.

[00:04:18] Speaker 00:
They're all about the business, and that's admitted in the complaint.

[00:04:21] Speaker 00:
They're all about the products and services, and that's a classic

[00:04:25] Speaker 00:
example of speech in the public interest.

[00:04:28] Speaker 03:
Is it your understanding that any of these statements were true?

[00:04:31] Speaker 03:
Do you contend that?

[00:04:32] Speaker 03:
Because your brief almost said the opposite, that they're so outlandish that nobody would think they're true.

[00:04:37] Speaker 00:
So our position is that at this stage, there's no question that it's really simply not a relevant question of whether it's true or not.

[00:04:45] Speaker 00:
Falsity is alleged in every single defamation case, every single trade libel case.

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So that is acknowledged as an allocation in every case.

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But that's not what the dispute is over at step one or step two.

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For purposes of this appeal, we're not challenging the falsity of the statement.

[00:05:03] Speaker 00:
That is certainly in dispute below.

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If this case were to go to trial, that's certainly going to be part of the dispute.

[00:05:09] Speaker 00:
But for purposes of this appeal, that's not part of the dispute.

[00:05:12] Speaker 00:
We're not contesting that.

[00:05:13] Speaker 03:
Is anything happening in the district court, or has this case been stayed pending the appeal?

[00:05:17] Speaker 00:
It's been stayed, Your Honor.

[00:05:19] Speaker 00:
It's been stayed.

[00:05:20] Speaker 03:
One, you may be aware that some months ago, the court granted en banc review in an anti-slap case called Martinez versus Zoom Info, and that case has presently stayed.

[00:05:30] Speaker 03:
That case raises some of the same questions that could be at issue in this case about whether the court has jurisdiction under the collateral order doctrine, whether the anti-slap statute applies in federal court.

[00:05:44] Speaker 03:
Do you think those are issues that should be reevaluated in the circuit?

[00:05:48] Speaker 00:
not in this case your honor that has not been raised by either of the parties in this case it's not it's not an issue in this case so I don't think it's an issue that's appropriately before the court in this case

[00:05:59] Speaker 03:
How about with respect to the collateral order doctrine, because that is jurisdictional.

[00:06:03] Speaker 03:
That goes to our ability to hear that.

[00:06:05] Speaker 03:
And we have case law that says you can do exactly what you did here, which is that you can file this interlocutory appeal.

[00:06:14] Speaker 03:
But some judges on the court have written separate writings, including a Martinez versus Zoom info questioning that.

[00:06:20] Speaker 00:
Yes, your honor.

[00:06:21] Speaker 00:
So I think it's just been assumed by the parties that the court is bound by the current Ninth Circuit law on this issue.

[00:06:28] Speaker 00:
So there's not been any briefing on that.

[00:06:29] Speaker 00:
There's not been any argument.

[00:06:31] Speaker 00:
So frankly, I'm just not prepared to address an issue that just has not been raised in the briefing or not before the court.

[00:06:36] Speaker 00:
And I think there is controlling law, at least for now, on the matter.

[00:06:46] Speaker 00:
If the court doesn't have any other questions, I think I'll save the rest of my time.

[00:06:51] Speaker 00:
Thank you.

[00:06:52] Speaker 05:
Thank you.

[00:06:53] Speaker 05:
We'll hear from the other side.

[00:07:06] Speaker 02:
Good morning, and may it please the court, Owen Praskowitz, on behalf of appellees Andrew Malone and American Pizza Manufacturing.

[00:07:12] Speaker 02:
Your honors, appellants ask this court to close its eyes and cover its ears to the motivations that underlie appellant's conduct at issue in this case.

[00:07:22] Speaker 02:
Under both their prong one and prong two arguments,

[00:07:25] Speaker 02:
Appellants contort the real world context of the allegations and evidence in the record before this court.

[00:07:33] Speaker 02:
This court should reject those arguments and affirm the district court's holding that appellants failed to meet their burden under prong one to show that their actions were brought into public interest and that appellants forfeited at least some of their anti-slap claims in this case.

[00:07:48] Speaker 03:
So on the public issue, public interest,

[00:07:54] Speaker 03:
Where is the line here?

[00:07:55] Speaker 03:
Because I think you would agree that some statements made about a business and how good that business is or bad that business is, those would be in the public interest.

[00:08:05] Speaker 03:
Do you agree with that?

[00:08:06] Speaker 02:
I can agree.

[00:08:08] Speaker 02:
There are hypotheticals where that could be the case.

[00:08:10] Speaker 02:
This is not that case.

[00:08:13] Speaker 03:
But just to pause there, as a category, statements made about a business could be in the public interest.

[00:08:19] Speaker 02:
Could be, Your Honor, yes.

[00:08:21] Speaker 02:
But the difference between this case and a case

[00:08:23] Speaker 02:
where that was the only allegation at issue.

[00:08:26] Speaker 02:
is that here we have the express allegations and evidence supporting that this is about much more, not even much more.

[00:08:33] Speaker 02:
This is not, has nothing to do with the products and services at issue in this dispute.

[00:08:38] Speaker 02:
We have evidence from former go for media employees that they pay their employees to write these false reviews.

[00:08:43] Speaker 01:
Right.

[00:08:43] Speaker 01:
But the comments were made about the products.

[00:08:46] Speaker 01:
Can you distinguish the geyser case?

[00:08:48] Speaker 01:
Because that seems to be the one that they, uh, is, you know, giving them a little bit of traction.

[00:08:54] Speaker 02:
I think between Geyser, and I think they rely a lot on Wilson versus CNN as well, and I'll address Wilson, but first to Geyser, I first want to note that I think, I think for appellees, the preeminent case should be Phil Mon.

[00:09:08] Speaker 02:
Phil Mon stressed the importance of looking at the context of the dispute.

[00:09:11] Speaker 01:
More than just the statements.

[00:09:13] Speaker 02:
More than just the statements.

[00:09:14] Speaker 02:
And I'll get to Geiser in a moment, but appellants argue that FilmOn is not applicable to this case because it was under subdivision E4 of the anti-SLAPP statute under the catch-all provision.

[00:09:25] Speaker 02:
They say here they're seeking protection under E3.

[00:09:28] Speaker 02:
If FilmOn has no application to this case, Geiser certainly has no application to this case because Geiser was an E4 catch-all provision case.

[00:09:36] Speaker 02:
The entirety of Geiser was an expansion

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And a clarification of the court's film on precedent.

[00:09:42] Speaker 02:
So if we're not going to look at film on we can't look at geyser, but more importantly, under can I can I back up because you made a comment about the motivation.

[00:09:50] Speaker 01:
How do we evaluate the motivation on effectively a motion to dismiss.

[00:09:56] Speaker 01:
I mean that has to be alleged in the complaint so you can I mean does that give too much of a benefit to the plaintiffs to sort of characterize how these are because we have to take that as true so if a plaintiff characterizes this as a private dispute does that somehow bind us on

[00:10:16] Speaker 01:
on how we analyze that?

[00:10:19] Speaker 02:
I think to the extent Wilson has any applicability here.

[00:10:21] Speaker 02:
Again, Wilson was also an E4, a subdivision E4 catch-all provision case.

[00:10:25] Speaker 02:
But if Wilson has any relevance to this case, it answers that question.

[00:10:29] Speaker 02:
Because Wilson also was an employment context case.

[00:10:32] Speaker 02:
It's not clear it has application beyond that.

[00:10:34] Speaker 02:
But if Wilson has application here, Wilson addressed, in the employment context, allegations where an employer was alleged to have discriminated or retaliated against an employee.

[00:10:45] Speaker 02:
And lower courts, state courts, were taking those allegations as dispositive of the issue.

[00:10:52] Speaker 02:
And they didn't look at anything presented from the defendants in those case to counteract.

[00:10:56] Speaker 02:
They said, oh, once we have these allegations, that's it.

[00:10:58] Speaker 02:
Wilson said, no, you're allowed to look at the defendant's evidence that

[00:11:03] Speaker 02:
that might run contrary to the plaintiff's allegations in those cases.

[00:11:07] Speaker 02:
The Wilson was very expressed in saying they don't prohibit the looking at motivations, but they said allegations alone, quote, in the face of evidence to the contrary.

[00:11:20] Speaker 01:
What evidence to the contrary is there?

[00:11:24] Speaker 01:
Because this is a motion to dismiss stage.

[00:11:26] Speaker 02:
Well, there's some dispute.

[00:11:28] Speaker 02:
First of all, I don't want to get away from the fact that under prong one, it is the defendant's burden to show that there's public interest.

[00:11:36] Speaker 02:
And appellants have every right to introduce evidence under their prong one analysis to support their public interest.

[00:11:42] Speaker 02:
I want this court to look at the record.

[00:11:47] Speaker 02:
Word.

[00:11:48] Speaker 02:
that appellants introduced in front of the district court, specifically the declarations of Mr. Thakor and Gopher Media's CFO.

[00:11:54] Speaker 02:
Not one paragraph in those declarations addresses public interest.

[00:11:58] Speaker 02:
In fact, the entirety of those declarations disavow any connection to the statements at issue in this case.

[00:12:03] Speaker 02:
They say they had nothing to do with these reviews.

[00:12:06] Speaker 02:
How can they speak to the public interest if they have nothing to do with the reviews?

[00:12:09] Speaker 03:
And Mr. Thucour's declaration... But you're referencing declarations, so this is really not... I mean, this gets into some of these issues with the anti-SLAPP statute of are we reviewing legal sufficiency or factual, but here we're talking about something that's outside of the complaint, if you will, outside the pleadings.

[00:12:23] Speaker 02:
Yes, Your Honor.

[00:12:23] Speaker 02:
The anti-SLAPP statute itself provides that courts can look at evidence and allegations.

[00:12:28] Speaker 02:
The reason I want to harp on the evidence, the absence of evidence, is because on the allegations alone, to get to Judge Nelson and your concerns about allegations alone,

[00:12:38] Speaker 02:
The allegations here in this case is that this is not a public interest case.

[00:12:42] Speaker 02:
For the defendants to counter those allegations, they can introduce evidence under the prong one stage to counter that.

[00:12:49] Speaker 02:
They did not do so here.

[00:12:52] Speaker 02:
So that's why I would say on the allegations alone.

[00:12:56] Speaker 02:
But we don't have just allegations.

[00:12:57] Speaker 02:
Again, the court can look at the evidence.

[00:12:59] Speaker 02:
We have testimony from former Gopher Media employees that said they were paid to write fake reviews about APM.

[00:13:05] Speaker 02:
We have testimony from Andrew Malone saying that this dispute originated from a parking dispute.

[00:13:11] Speaker 02:
We have testimony from former Gopher Media employees that say this is Gopher Media's business practice for them to be paid to write fake reviews about businesses.

[00:13:19] Speaker 02:
This is about much more than products and services as this

[00:13:22] Speaker 02:
as appellants want this court to argue.

[00:13:28] Speaker 03:
What does the record show about who owns the other pizza place?

[00:13:34] Speaker 03:
Is that owned by the appellant?

[00:13:38] Speaker 02:
There's testimony, we have testimony from a former Gopher Media employee that Mr. at the court has a 25% ownership interest.

[00:13:43] Speaker 03:
What seems to be disputed or?

[00:13:45] Speaker 02:
It is disputed, and that's why we didn't bring this case under the anti-slap exception for commercial speech, because there has to be a showing of ownership from the other side, and these are rival businesses.

[00:13:59] Speaker 02:
We're certainly going to present that at trial, but for the purposes of the anti-slap statute, we didn't dive in on that.

[00:14:04] Speaker 02:
I think it's important to note that Mr. Thakur had an interest in the rival pizza shop, but I think regardless of his ownership in the pizza shop.

[00:14:13] Speaker 01:
Client if nothing else.

[00:14:15] Speaker 02:
Yeah, sure.

[00:14:16] Speaker 02:
It's like the pizza.

[00:14:17] Speaker 02:
Well, exactly But what I want to what I want to touch on briefly and I and I see I don't have too much time left Your honor brought up or I'm sorry your honor brought up the Yang case Woodhill ventures It's notable that in their brief they do not try to distinguish the facts at all today was the first time I heard them trying to distinguish the facts in Woodhill ventures and

[00:14:37] Speaker 02:
That case is on all fours with this case, where the court rejected the defendant's public interest argument, saying that it was in pursuit of his own vengeful retribution.

[00:14:49] Speaker 02:
That's what the district court agreed with here.

[00:14:52] Speaker 02:
The only distinguishing point that appellants have made as to Woodhill Ventures is their reliance on Geyser.

[00:15:00] Speaker 02:
Geiser, again, it's an E4 catch-all provision case, so I would say it has no bearing here if we're not going to follow film on.

[00:15:06] Speaker 02:
But the importance in Geiser, and what the court was looking at in its concern about the commingling between private and public interest, is that in Geiser, the defendants introduced evidence that said that they were pursuing the, I think it was a protest in that case, public interest.

[00:15:24] Speaker 02:
So the court had contrary evidence to the allegations

[00:15:27] Speaker 02:
that it was a private dispute, that is absolutely not the case here.

[00:15:31] Speaker 02:
And if we look at the policy implications of appellants' arguments, what appellants are saying is that simply by making statements online about products and services, affecting a large enough market, then any such statements are immunized.

[00:15:44] Speaker 02:
If appellants wanted to go online and say that American pizza manufacturing put razor blades in its pizza, completely false, no truth, but they put that online and they speak it to a loud enough audience, those statements are presumptively protected.

[00:15:56] Speaker 02:
That is not what the anti-slap statute is meant to protect.

[00:15:59] Speaker 02:
They might argue, oh, well, we could flesh this out under a prong to merits analysis.

[00:16:03] Speaker 02:
But that would eviscerate any meaning to the step one analysis.

[00:16:07] Speaker 02:
The merits analysis is fact intensive.

[00:16:09] Speaker 02:
A lot of these anti-slap statutes are brought early in a case before the record is developed.

[00:16:13] Speaker 02:
There's a reason the appellants have the initial burden.

[00:16:15] Speaker 02:
And simply because there are allegations of market effect, products and services does not meet the public interest inquiry.

[00:16:23] Speaker 02:
I think the Woodhill case addressed a very similar market effect theory in that case.

[00:16:31] Speaker 02:
And the language was, just because the volume is loud does not make the content worthy.

[00:16:36] Speaker 02:
And I think that is exactly what's going on here.

[00:16:38] Speaker 02:
Just because Mr. Thakur has a large social media following, just because he employs a digital media company that knows they're in the business of reviewing businesses and curating online reviews.

[00:16:54] Speaker 01:
There's been some companies that extort this they'll post the online reviews and then they'll go and say if you pay 20 $50,000 we'll get these off is that that's not going

[00:17:06] Speaker 02:
I have not seen evidence of that.

[00:17:09] Speaker 02:
I do know that we have testimony from a former Gopher Media employee that says this is not exclusive to APM, that Mr. Thakur employs this business practice across the board.

[00:17:18] Speaker 02:
I think they deal with a lot of doctors' websites and such.

[00:17:23] Speaker 02:
But in my limited time, I want to address the Martinez case that your honor mentioned.

[00:17:27] Speaker 02:
And I think going back a ways, we did mention this in our brief.

[00:17:30] Speaker 02:
Afon said it was not brought to the issue, but page 47 and 48 of the appellee's

[00:17:36] Speaker 02:
response brief.

[00:17:38] Speaker 02:
We identified Judge Gould's concurrence in Planned Parenthood, and I know

[00:17:43] Speaker 02:
Your Honor, Judge Bress, in your concurrence in Salveson versus Kessler, you highlighted Judge Gould's concurrence in Planned Parenthood about the tension between the interlocutory appeal and the collateral order doctrine.

[00:17:58] Speaker 02:
Now, I know there's tension between the 60-day deadline in state court and the federal rules of civil procedure when you can bring an anti-SLAP motion.

[00:18:08] Speaker 02:
I want to focus on the court's forfeiture ruling here because this is exactly why

[00:18:13] Speaker 02:
We would posit perhaps this is not the case.

[00:18:15] Speaker 02:
Martinez might be a better case for overruling the precedent on allowing interlocutory appeals.

[00:18:23] Speaker 02:
But this is the kind of case that the California Supreme Court warned of in Newport Harbor, where an appellant like defendants can

[00:18:30] Speaker 02:
I'm sorry, where appellants could wait until the eve of trial to file an anti-slap motion, stop the case dead in its tracks after two years of litigation, after appellants were given a two-month extension to file their anti-slap motion on the deadline that their initial anti-slap motion was due.

[00:18:47] Speaker 02:
This is the pretrial motion cutoff.

[00:18:50] Speaker 02:
They asked for another extension.

[00:18:51] Speaker 02:
They were denied for a lack of diligence.

[00:18:54] Speaker 02:
And then they revived their anti-slap motion.

[00:18:57] Speaker 02:
This court should affirm the district court's forfeiture ruling

[00:18:59] Speaker 02:
to at least keep some guardrails in place for litigants who intentionally delay.

[00:19:07] Speaker 02:
In the record for this court, if this court looks at my declaration in support of the opposition to the anti-slap motion, they will see that in meeting and conferring about the anti-slap statute, counsel for appellants who's not here with us today, Ms.

[00:19:18] Speaker 02:
Chalk, made clear that she intended to appeal the anti-slap ruling.

[00:19:23] Speaker 02:
Regardless of the outcome, she intended to appeal it before even filing the motion.

[00:19:28] Speaker 02:
We understand the intent.

[00:19:30] Speaker 02:
And I don't know.

[00:19:31] Speaker 02:
I believe this panel is not the court that granted appellee's motion to expedite this appeal.

[00:19:36] Speaker 02:
But if this court does look at that record, they'll see that appellants, in this case, have done everything but trying to take it to trial.

[00:19:44] Speaker 02:
Appellants sued appellee's witnesses.

[00:19:47] Speaker 02:
They sued Mr. Malone's girlfriend in a separate lawsuit to get discovery that they couldn't get before the discovery cut off in this case.

[00:19:55] Speaker 02:
The fact that we are here.

[00:19:58] Speaker 01:
Well, if I were representing their client, I wouldn't want to put that client before trial either.

[00:20:03] Speaker 01:
A jury would not be kind.

[00:20:05] Speaker 02:
Yes, Your Honor, and that's why

[00:20:07] Speaker 02:
That's why appellees are adamant that this case needs to get to trial, and we hope this court can issue a ruling as soon as possible.

[00:20:17] Speaker 01:
Judge Bress brought up potentially taking it en banc.

[00:20:22] Speaker 01:
Would you oppose that because you want it expedited, or do you think that you're willing to allow the best interests of justice to be served?

[00:20:31] Speaker 02:
That's a tough question to answer, Your Honor.

[00:20:34] Speaker 02:
For my client's interest, and that's who I'm here on behalf of, I would say...

[00:20:37] Speaker 02:
This should not be the case.

[00:20:40] Speaker 02:
Personally, I believe the law should follow that in the interest of justice.

[00:20:43] Speaker 02:
This could be the vehicle for the court to overrule the interlocutory appeal process for anti-slap statutes.

[00:20:50] Speaker 02:
If this court was inclined to do so, we would understand that.

[00:20:53] Speaker 02:
But in the interest of justice for Mr. Malone and American Pizza Manufacturing, who did not bring this fight, they were sued by Mr. Tha Court three years ago.

[00:21:02] Speaker 02:
They were the ones brought into courtroom.

[00:21:04] Speaker 02:
They have spent countless resources on this case.

[00:21:07] Speaker 02:
Appellants have hired a team of lawyers, not just in the district court, but here on appeal as well.

[00:21:12] Speaker 02:
It is difficult for a small business like American Pizza Manufacturing to litigate an anti-slap motion on appeal before even getting to trial.

[00:21:19] Speaker 02:
So we would ask that this court issue its order as soon as possible if it doesn't take it in bonk.

[00:21:25] Speaker 02:
I know we only have a few seconds left before, but if this court is inclined to get to the prong to analysis, which we don't think this court needs to get to, I just want to focus quickly on the dichotomy between appellant's argument that the court should

[00:21:36] Speaker 02:
ignore all of the context under prong one, but under prong two, we're going to look at the context and say that these statements are sarcastic, they're hyperbole.

[00:21:47] Speaker 02:
The very statements at issue in the case, a reader would see them and they would have no idea that these are false reviews.

[00:21:53] Speaker 02:
I believe we have one of the statements from a former Gopher media employee who wrote on Yelp.

[00:21:58] Speaker 02:
I assure you that all of these statements are factual.

[00:22:02] Speaker 02:
This is not the kind of conduct that the anti-SLAPP statute was meant to protect.

[00:22:06] Speaker 02:
This court should affirm the district court's ruling.

[00:22:08] Speaker 02:
And unless this court has any other questions, appellees submit.

[00:22:12] Speaker 05:
Thank you.

[00:22:14] Speaker 05:
We have a few minutes left for rebuttal.

[00:22:16] Speaker 00:
Thank you, Your Honor.

[00:22:17] Speaker 00:
So I'd just like to clarify, the only conduct before this court on this appeal are six statements that the counterclaims arise from.

[00:22:26] Speaker 00:
And those counterclaims have been asserted against the appellants.

[00:22:30] Speaker 01:
I guess that's true.

[00:22:33] Speaker 01:
I guess by damages, it would be more than just that.

[00:22:36] Speaker 01:
I mean, those six are what would serve as defamation, but there's a whole lot more than six statements, false statements, and so I suppose those others would still roll into damages?

[00:22:48] Speaker 00:
No, Your Honor.

[00:22:48] Speaker 00:
The trial court has already ruled that the other statements that are alleged in the complaint are non-actionable.

[00:22:54] Speaker 00:
These are the only six statements that survived.

[00:22:56] Speaker 00:
They've already told the district court below that their entire

[00:22:59] Speaker 00:
counterclaim arises from those statements.

[00:23:01] Speaker 01:
So the whole practice of hundreds and hundreds of fake negative reviews is not actually before the court?

[00:23:07] Speaker 00:
That is not an act of defamation or an act of trade libel that's been alleged.

[00:23:11] Speaker 00:
And under the Bonney decision, all of that is disregarded for purposes of step one.

[00:23:16] Speaker 00:
None of the non-protected conduct is considered as part of the analysis.

[00:23:21] Speaker 00:
The court is supposed to focus on these statements.

[00:23:23] Speaker 00:
Now, I heard counsel say that these statements have nothing to do with the products and services.

[00:23:29] Speaker 00:
That is not what their complaint says.

[00:23:31] Speaker 00:
And under the gun decision out of the Ninth Circuit, which relies on California law, the complainant cannot disregard or disavow their allegations in the complaint.

[00:23:42] Speaker 03:
So I'm looking at the six statements.

[00:23:44] Speaker 03:
So one of them is that the owner of APM kicks handicapped dogs.

[00:23:51] Speaker 03:
To what extent is that in the public interest?

[00:23:55] Speaker 03:
To make a statement that I don't think you actually defend the truth of that statement.

[00:24:00] Speaker 00:
Your Honor, that statement is a criticism of a business.

[00:24:02] Speaker 00:
It says further that... Is it true?

[00:24:05] Speaker 03:
Is it true that the owner of the APM pizza store kicks handicapped dogs?

[00:24:10] Speaker 00:
I don't know, Your Honor.

[00:24:11] Speaker 00:
I do not know whether that is true or false.

[00:24:14] Speaker 00:
But regardless of whether it's true or false, which again, falsity is a legend.

[00:24:17] Speaker 01:
Every defamation case... Then how is it related to the business?

[00:24:20] Speaker 00:
it's related to the business because he's criticizing them in the context of that statement if you read the statement to read the whole statement he's saying any anybody who supports this business supports animal abuse problem yeah and that i think that's the problem though is that now you get into

[00:24:36] Speaker 01:
I mean, it sort of supports your opposing counsel's argument, which is some of these are not related to the business, or your definition of related to the business is so great that it's like, we can just criticize anything in the personal character of a CEO of a company, and that relates to the business itself.

[00:24:54] Speaker 01:
That seems to stretch public interest a bit.

[00:24:57] Speaker 00:
So I don't think that's quite our argument, Your Honor.

[00:25:00] Speaker 00:
I wouldn't say everything that you say about a business is protected.

[00:25:03] Speaker 00:
I think, number one, the allegations control.

[00:25:06] Speaker 00:
That's clearly established under the Bonnie decision, under the Bel Air decision, which says we don't have to rely on anything except the allegations if the allegations establish protected activity.

[00:25:15] Speaker 00:
So once they've alleged that all of the statements are about their products and services, which that is alleged explicitly in the complaint, and they've alleged that there was enough interest to influence 90% of their customers, that's enough.

[00:25:27] Speaker 00:
for E3.

[00:25:28] Speaker 00:
Now, these are private statements.

[00:25:30] Speaker 03:
I must say, how can you argue that putting something on the internet that accuses somebody of kicking handicapped dogs when you're not prepared in court to tell me that that's a true statement, how could that possibly be in the public interest to put that out there?

[00:25:44] Speaker 00:
Our client maintains that that is a true statement.

[00:25:48] Speaker 00:
He testified under oath that that's a true statement.

[00:25:50] Speaker 00:
So I would agree with that.

[00:25:53] Speaker 00:
I have no reason to doubt that.

[00:25:55] Speaker 00:
But what I'm telling the court is

[00:25:56] Speaker 00:
The falsity of that statement, even assuming falsity, just for the sake of argument, it's still a public interest statement because every single statement, there's cases that say even if, I think in one case, the statement was acknowledged to be false, it was admitted to be false.

[00:26:12] Speaker 03:
To what end does your client engage, because it doesn't seem to be disputed that your client has a clear disagreement with this pizza shop.

[00:26:22] Speaker 03:
To what end is your client pursuing this course of conduct?

[00:26:27] Speaker 03:
What does he hope to gain by this?

[00:26:32] Speaker 00:
To what end does my client hope to gain by

[00:26:34] Speaker 03:
By posting things on the Internet that says that the pizza place kicks handicapped dogs, that he walked in and smelled like old fish, that the owner laughed at me, that he called me a racist slur.

[00:26:47] Speaker 03:
What is he trying to achieve through this?

[00:26:49] Speaker 00:
He disputes that some of those statements were made by him, first of all.

[00:26:52] Speaker 00:
So these statements were not necessarily made by him.

[00:26:55] Speaker 01:
Well, right, but they were made by employees who worked for him.

[00:26:58] Speaker 01:
I mean, you don't deny, at least at the allegations, that there was a concerted effort.

[00:27:03] Speaker 00:
I think that there is a dispute, Your Honor, and frankly, that's just not an issue on appeal.

[00:27:07] Speaker 03:
But what is the goal here?

[00:27:08] Speaker 03:
I mean, help me understand, what is the nature of the dispute?

[00:27:11] Speaker 03:
Your client is the one who actually is the plaintiff in the case.

[00:27:16] Speaker 03:
So what is the nature of the dispute?

[00:27:17] Speaker 03:
What does your client hope to obtain through this litigation?

[00:27:20] Speaker 00:
Your honor, I can't speak to that.

[00:27:23] Speaker 00:
I really don't know.

[00:27:24] Speaker 01:
Is he a pizza purist, and he thinks that pizza companies should be run by only good and honorable people?

[00:27:30] Speaker 00:
I don't know, your honor.

[00:27:31] Speaker 00:
OK.

[00:27:31] Speaker 00:
I don't know the answer to that.

[00:27:33] Speaker 00:
I don't know the answer to that.

[00:27:34] Speaker 00:
But what I do know is that those allegations in our complaint are not an issue before the court.

[00:27:39] Speaker 00:
Our claims are not before the court.

[00:27:42] Speaker 00:
The counterclaims are before the court.

[00:27:43] Speaker 00:
And there is no dispute that those allegations arise from protected activity in this case.

[00:27:49] Speaker 00:
You know, there's lots of speech that is malignant and base, and the US Supreme Court, this court has repeatedly said that doesn't mean it's actionable, right?

[00:27:59] Speaker 00:
The statements may be reprehensible.

[00:28:00] Speaker 00:
If the allegations are true in this case, the conduct may be reprehensible.

[00:28:04] Speaker 00:
It may be less than admirable, certainly, but that doesn't mean it's actionable for defamation or trade libel.

[00:28:11] Speaker 00:
That's what this is about.

[00:28:13] Speaker 00:
So I think, frankly, just respectfully, I think we're getting

[00:28:16] Speaker 00:
into issues that are just really not relevant if we're looking at whether we like the speech or not, whether it's good or bad.

[00:28:24] Speaker 01:
I think the court is struggling with if we allow this to go forward, where's the limit?

[00:28:34] Speaker 01:
I mean, we're already inundated with these types of issues up on appeal and we'll just get more of them because society is sadly going more the way of your client than away from it.

[00:28:52] Speaker 01:
And we're getting more defamation out there.

[00:28:54] Speaker 01:
Social media has exacerbated this problem.

[00:28:57] Speaker 01:
And if we don't put some limits on the difference between public and private disputes, you know, we'll just open up the floodgates.

[00:29:05] Speaker 00:
Well, I think their argument does open up the floodgates, Your Honor, because I think it does make the federal courts content moderators in the social media space.

[00:29:11] Speaker 01:
Not content moderators, but you agree, even you would agree, we have to ask the question about whether this is in the public interest or private.

[00:29:20] Speaker 01:
I mean, you want to, I guess you just want to say that as long as it affects the business, it's in the public interest.

[00:29:24] Speaker 01:
What test do you want us to apply?

[00:29:27] Speaker 00:
I want the court to apply the test in the Bonnie decision.

[00:29:30] Speaker 01:
And which is what?

[00:29:31] Speaker 01:
How would you describe that to me?

[00:29:33] Speaker 00:
Whether the allegations in the complaint establish that the statements, whether they allege that the statements are in the public interest.

[00:29:41] Speaker 00:
If they allege that the statements are in the public interest, that's sufficient.

[00:29:43] Speaker 00:
That controls the case for purposes of step one.

[00:29:46] Speaker 00:
And this is a prima facie burden.

[00:29:48] Speaker 00:
This is not supposed to be some fact-intensive analysis.

[00:29:51] Speaker 00:
It is based on the allegations.

[00:29:53] Speaker 00:
And I just want to note, there's been a lot of discussion about motivation and what the client wants to do.

[00:29:59] Speaker 00:
But under the Wilson decision, which is controlling California Supreme Court law, that is completely irrelevant.

[00:30:07] Speaker 00:
If that was controlling, then anybody could get past an anti-SLAP statute by simply alleging bad motives and bad acts and a lot of other conduct unrelated to the state law.

[00:30:16] Speaker 01:
No, I understand it.

[00:30:17] Speaker 01:
But your rule allows anybody to

[00:30:20] Speaker 01:
advance an anti-slap statute by saying, well, it's clearly in the public interest.

[00:30:25] Speaker 01:
So we've got to do some line drawing here.

[00:30:28] Speaker 00:
So I think one potential line, Your Honor, is when you, if my time is expired, if I can answer the question.

[00:30:36] Speaker 00:
The one line could be,

[00:30:38] Speaker 00:
whether the statements are actually warning consumers, whether they're directed to consumers, as opposed to, you know, private statements like in Philmon or Wilson.

[00:30:46] Speaker 00:
And in that context, when it is purportedly a warning to consumers of any kind,

[00:30:54] Speaker 00:
it we all know just from personal experience we care about those opinions we all taken with a grain of salt we look at opinions upon on on products and services but we do as a public care about what people have said even though we all discounted accordingly so any anything on the internet then or their their their lines there too

[00:31:11] Speaker 00:
Not anything on the internet, Your Honor, but statements that are purportedly about the business's products and services.

[00:31:18] Speaker 00:
If that's what it's directed to, if it's addressed to consumers, then that is, under long-standing law, a public interest.

[00:31:25] Speaker 00:
And I think in the modern marketplace especially, it's in the public interest.

[00:31:30] Speaker 00:
Thank you, Your Honor.

[00:31:30] Speaker 05:
Thank you.

[00:31:31] Speaker 05:
The case of Gopher Media versus Henry Malone, it's submitted.

[00:31:37] Speaker 05:
And we're adjourned for this session.

[00:31:48] Speaker 05:
This court for this session stands