[00:00:04] Speaker 02:
May it please the court.

[00:00:05] Speaker 02:
My name is Michael O'Donnell, Riker Danzig.

[00:00:07] Speaker 02:
I represent Dun & Bradstreet.

[00:00:09] Speaker 02:
I'd like to reserve four minutes for rebuttal.

[00:00:11] Speaker 04:
Keep your eye on the clock.

[00:00:12] Speaker 04:
We'll try to help.

[00:00:13] Speaker 02:
I will, Your Honor.

[00:00:15] Speaker 02:
Your Honor, this is Dun & Bradstreet's appeal of the district court's denial of the anti-SLAPP motion pursuant of the anti-SLAPP motion statute of 42.516.

[00:00:28] Speaker 02:
with regard to the right of publicity statute 3344.

[00:00:33] Speaker 02:
I would like to point out five points that make this case different, and I can do that in less than one minute's time, Your Honor.

[00:00:40] Speaker 02:
First, this is the first anti-SLAPP motion where the defendant has challenged the factual and legal sufficiency of plaintiff's claims.

[00:00:50] Speaker 02:
And in this case, plaintiff has not rebutted those affirmations of Carlos Palmer and of Ryan O'Neill.

[00:00:58] Speaker 03:
Well, I'm not sure what the implication of that is, because our jurisdiction, if we have it, is limited to the treatment of the anti-SLAP motion.

[00:01:08] Speaker 03:
Are you suggesting we should consider a motion to dismiss on more traditional grounds, or a motion for summary judgment on factual grounds?

[00:01:16] Speaker 02:
Motion for summary judgment on the factual grounds, Your Honor.

[00:01:19] Speaker 02:
I would cite the Hilton case, Your Honor.

[00:01:23] Speaker 02:
I would also cite

[00:01:27] Speaker 02:
UCMBPC.

[00:01:29] Speaker 02:
I would cite Planned Parenthood Center v. Medical Progress.

[00:01:33] Speaker 02:
I would cite Judge Smith's opinion in Herring Network v. Matto.

[00:01:37] Speaker 02:
And I would cite Hilton v. Hallmark Cards.

[00:01:39] Speaker 03:
Well, explain to me how it is we have jurisdiction over a denied motion for summary judgment separate from the anti-SLAPP grounds.

[00:01:47] Speaker 02:
It was, you decide this anti-slap motion on a summary judgment standard.

[00:01:54] Speaker 03:
You have to decide the... But that's purely the anti-slap motion.

[00:01:57] Speaker 02:
Yes, Your Honor.

[00:01:58] Speaker 02:
Exactly.

[00:01:58] Speaker 02:
That's all I'm talking about, is the appeal relates to the anti-slap.

[00:02:03] Speaker 02:
That's it.

[00:02:03] Speaker 04:
Can I just, as a side to what my colleague just mentioned, and of course in the Maddow case, it was a political issue.

[00:02:12] Speaker 04:
The statute, and I'm going to quote this, says that section 425.17d2 applies to promotions of, and I quote, dramatic, literary, musical, political, or artistic work.

[00:02:26] Speaker 04:
In what way is what Dun and Bradstreet provided in this teaser, tester, if you will, how does that fall into the language that I just quoted?

[00:02:39] Speaker 02:
It falls into, Your Honor, the language you quoted was the creation, dissemination, exhibition, or advertisement, or other similar promotion of any dramatic library, music, or artistic work.

[00:02:50] Speaker 02:
Then it says, including but not limited to a motion picture or an article published in a newspaper or magazine or general publication.

[00:02:58] Speaker 03:
So which is this?

[00:02:59] Speaker 03:
It's none of those.

[00:03:00] Speaker 02:
This is an expressive transformative database, Your Honor.

[00:03:05] Speaker 03:
Stop, stop, stop.

[00:03:06] Speaker 03:
We just read off and you just repeated a list of things and which one of these does this category... Your Honor, the legislative history of the revisions as set forth in Major v. Silna

[00:03:19] Speaker 02:
expressly refers to the assembly record, which refers to a speech product.

[00:03:26] Speaker 02:
That's what the D&B database is.

[00:03:29] Speaker 02:
That's what Judge Chesney found, that it is a First Amendment protected.

[00:03:35] Speaker 02:
Oh, wait a minute.

[00:03:36] Speaker 04:
So are you saying that any speech is covered by the anti-SLAPP statute, regardless of its nature?

[00:03:44] Speaker 04:
no you're i'm i'm saying for first amendments uh... speech protected by the first amendment and that's what we have in this i guess what we're struggling with here you know uh... yeah i slap that is a california procedural issue we have our own problem with that in the federal court but it's here uh... and my question to you is

[00:04:03] Speaker 04:
I just read what it's supposed to cover.

[00:04:05] Speaker 04:
And my colleague just mentioned again, dramatic, literary, musical, political, or artistic work.

[00:04:11] Speaker 04:
Which of those is done in Brad Street's tester?

[00:04:14] Speaker 02:
Well, it also goes on to say, including but not limited to a newspaper or general magazine.

[00:04:22] Speaker 02:
Including but not limited to.

[00:04:23] Speaker 04:
About those things.

[00:04:24] Speaker 04:
In other words, if there's a newspaper article about a political thing, sure.

[00:04:29] Speaker 04:
But which one of those categories

[00:04:31] Speaker 04:
Does it usually just because something is in an article that it's covered?

[00:04:35] Speaker 02:
No.

[00:04:35] Speaker 02:
I'm saying what the database is, essentially it's the equivalent of a business newspaper.

[00:04:43] Speaker 04:
I understand.

[00:04:43] Speaker 04:
I've read it many times.

[00:04:45] Speaker 04:
But I struggle with how that falls into the anti-slap provision.

[00:04:51] Speaker 04:
The anti-slap provision, for better or for worse, is designed to protect what, at least at the time, was supposed to be clearly

[00:04:59] Speaker 04:
well-known political rights and literary rights and so on, they wanted to cut it off at the pass.

[00:05:07] Speaker 04:
This is a garden variety, business newspaper, a fine paper, grant you all of that, but I don't see how it fits into the anti-SLAPP statute.

[00:05:16] Speaker 04:
What about this thing?

[00:05:17] Speaker 02:
Well, business news is a public interest and, but you've got two statutes here.

[00:05:27] Speaker 03:
or two subsections.

[00:05:29] Speaker 03:
And it is subsection 17 that creates this public interest exception.

[00:05:35] Speaker 03:
And you're telling us to define it in such a way as to basically parallel what subsection 16 provides in the anti-SLAP provision, because it talks about speech.

[00:05:47] Speaker 03:
So you're telling us if it's covered by 16,

[00:05:51] Speaker 03:
It can't be covered by 17?

[00:05:55] Speaker 03:
I'm struggling to see what's left of subsection 17 based on your interpretation.

[00:06:01] Speaker 02:
Subsection D2, 425.17D2 was expressly put in to ensure that the public interest exception in B, which refers to suits brought in the public interest and commercial speech

[00:06:22] Speaker 02:
We're not, did not totally vitiate the right of a litigant to bring an anti-slap motion when we're dealing with the situation where First Amendment speech is being chilled.

[00:06:36] Speaker 02:
And that is the point of D2.

[00:06:38] Speaker 02:
That is why we have the included.

[00:06:39] Speaker 03:
But the whole anti-slap provision doesn't kick in unless there's a concern about free speech being chilled.

[00:06:46] Speaker 03:
And so I'm left by thinking that

[00:06:49] Speaker 03:
Well, the public interest exception is nullified completely by your interpretation of D2.

[00:06:57] Speaker 03:
It seems to me that D2 specifies a subset of free speech, dramatic, literary, musical, political, or artistic work.

[00:07:10] Speaker 03:
And you're telling us that yours doesn't really fit in any of those categories.

[00:07:13] Speaker 02:
It goes on.

[00:07:14] Speaker 03:
No, it goes on to say including, but not limited.

[00:07:18] Speaker 03:
Well, including means within this first group.

[00:07:21] Speaker 03:
Which of those first groups does your client's product fit within?

[00:07:25] Speaker 02:
It goes on to say including, but not limited to.

[00:07:28] Speaker 02:
Specifically, it says,

[00:07:34] Speaker 03:
OK, Tim, which of those?

[00:07:35] Speaker 02:
Including but not limited to a motion picture.

[00:07:37] Speaker 03:
Is your client's product a motion picture?

[00:07:38] Speaker 02:
A motion picture.

[00:07:39] Speaker 03:
Is it a motion picture?

[00:07:40] Speaker 03:
No.

[00:07:41] Speaker 02:
Is it a television program?

[00:07:42] Speaker 02:
Or an article published in a newspaper or a magazine?

[00:07:48] Speaker 03:
It's not any of those.

[00:07:50] Speaker 03:
Which one do you think it is?

[00:07:51] Speaker 02:
It's a speech product, Your Honor.

[00:07:53] Speaker 03:
Yeah, but we just read off a list of things.

[00:07:56] Speaker 03:
Which one of those covers your client's product?

[00:07:59] Speaker 03:
I don't think any of them do.

[00:08:02] Speaker 03:
You're trying to tell us that this needs to be read not by its words, but by anything that's a free speech product.

[00:08:08] Speaker 03:
But that nullifies the anti-SLAP exception to begin with, because it says if it's a free speech product, the public interest exception can't apply.

[00:08:17] Speaker 03:
Now, what's wrong with my view of this?

[00:08:20] Speaker 02:
Your Honor, because the Hoover's database

[00:08:26] Speaker 02:
It has articles in it.

[00:08:30] Speaker 02:
Inside the Hoover's database, there is editorial commentary news, detailed global market reports, industry news.

[00:08:39] Speaker 03:
Is any of that covered by the plaintiff's complaint?

[00:08:42] Speaker 02:
Yes, Your Honor.

[00:08:44] Speaker 03:
Their complaint has very specific attacks on the listings contained in the Hoover's database, not other things that might be included in the database.

[00:08:55] Speaker 02:
Their complaint expressly seeks to prevent D&B from having a free trial of its database, Your Honor.

[00:09:06] Speaker 03:
It really is that simple.

[00:09:18] Speaker 03:
how the exception carved out to the public interest exception fits your client's product.

[00:09:23] Speaker 03:
Because we've gone through this list three or four times, and I don't see any of those terms being identified by you as being covering your client.

[00:09:32] Speaker 03:
It's not literary.

[00:09:33] Speaker 03:
It's not a TV program.

[00:09:35] Speaker 03:
It's not a motion picture.

[00:09:36] Speaker 03:
Tell me which one it is.

[00:09:38] Speaker 02:
if I can't do a free trial, which is what will happen in this case, because I can't pull out the names, your honor.

[00:09:46] Speaker 02:
I don't know, there's no personal information in Hoover's.

[00:09:50] Speaker 02:
I have no idea who the current or former residents of California are, zero.

[00:09:56] Speaker 02:
I cannot show that Hoover's database.

[00:09:58] Speaker 02:
And that Hoover's database does include editorial commentary news,

[00:10:05] Speaker 02:
detailed global reports, strength, weakness, synopsis, all of interest.

[00:10:10] Speaker 02:
And that will be chilled because I cannot show the Hoover's database.

[00:10:14] Speaker 02:
Sure you can.

[00:10:15] Speaker 02:
Just leave out the personal information.

[00:10:18] Speaker 02:
Your Honor, there is no way that we can redact out millions of names when we don't even know.

[00:10:26] Speaker 02:
Oh, come on.

[00:10:27] Speaker 02:
You don't even know where they live.

[00:10:29] Speaker 03:
You don't need to do that.

[00:10:31] Speaker 03:
All you do is limit the free trial to this additional material you're talking about, and plaintiffs don't have a claim.

[00:10:36] Speaker 02:
Well, if you limit that, then you don't understand how the database runs.

[00:10:41] Speaker 02:
And Your Honor, by the way, we do not, there are no teasers, Your Honor.

[00:10:48] Speaker 01:
You see exactly what anyone is seeing.

[00:10:51] Speaker 01:
What's your best authority to show that the district court erred here in this

[00:10:55] Speaker 02:
The best authority would be Geyser v. Kuhn, Your Honor.

[00:11:00] Speaker 02:
In that particular case, it was a private foreclosure that somehow the court tied back to the Great Recession.

[00:11:08] Speaker 04:
You want to save your time?

[00:11:09] Speaker 02:
I want to save my time, but I want to just really quickly, Your Honor, get through my last four points, and I'll do it in one minute.

[00:11:16] Speaker 02:
This is the first decision where the district court has expressly held that Hoover's is a protected First Amendment product.

[00:11:23] Speaker 02:
The only way a user can pull up Odette Batis' name is they ask for a free trial.

[00:11:28] Speaker 02:
And the only thing she finds is her name, job title, and business phone.

[00:11:32] Speaker 02:
There is no confidential personal information, defamatory information.

[00:11:37] Speaker 02:
And finally, my last point I want to make sure I make is that Odette Batis is a public employee.

[00:11:45] Speaker 02:
Under California's statute, the public has the right to know her business address and her phone number.

[00:11:53] Speaker 02:
And this action is saying D&B can't even publish that.

[00:11:57] Speaker 04:
Counsel, you're going to the merits of the case, not the anti-SLAPP issue.

[00:12:01] Speaker 04:
And that's what we're struggling with, the anti-SLAPP issue.

[00:12:03] Speaker 02:
Well, I'm trying to portray the chilling effect.

[00:12:05] Speaker 02:
I will save the rest for my time.

[00:12:11] Speaker 04:
Very well.

[00:12:11] Speaker 04:
All right.

[00:12:12] Speaker 04:
Mr. Osborne.

[00:12:22] Speaker 00:
Good morning, Your Honors.

[00:12:23] Speaker 00:
May it please the Court.

[00:12:26] Speaker 00:
My name is Ben Osborne.

[00:12:27] Speaker 00:
I represent the plaintiff, Odette Battis.

[00:12:29] Speaker 04:
You speak up a little bit, Mr. Osborne.

[00:12:31] Speaker 04:
You've got a lot of people out there in TV land that want to see you.

[00:12:34] Speaker 00:
Sure thing.

[00:12:36] Speaker 00:
Including my wife and dog.

[00:12:37] Speaker 00:
I hope they're watching.

[00:12:39] Speaker 00:
I represent the plaintiff, Ms.

[00:12:41] Speaker 00:
Battis, in her lawsuit against Dun & Bradstreet.

[00:12:43] Speaker 00:
My name is Ben Osborne.

[00:12:44] Speaker 00:
May it please the Court.

[00:12:46] Speaker 00:
Ms.

[00:12:46] Speaker 00:
Bata sued Dun & Bradstreet because Dun & Bradstreet uses her name and persona to advertise its disturbing and intrusive product without her consent.

[00:12:54] Speaker 03:
What's so disturbing and intrusive?

[00:12:56] Speaker 00:
Well, I want to be clear here that it is not simply a business newspaper.

[00:13:00] Speaker 00:
The Hoover's product is a tool, as alleged in the complaint, used by B2B salespeople to target the individuals in the database with phone calls to promote goods to them.

[00:13:12] Speaker 00:
And beyond just providing information about who they are and their contact information, the Hoover's database is a service that allows you to track that person's job changes and other events that Hoover's refers to.

[00:13:22] Speaker 03:
Well, your lawsuit appears aimed at the teaser element.

[00:13:25] Speaker 03:
Correct.

[00:13:26] Speaker 03:
What you're describing is disturbing, and this list that people can use to reach customer targets isn't coming from the free trial.

[00:13:36] Speaker 03:
People don't have broad access to the information to do that.

[00:13:39] Speaker 03:
The free trials let them see what kind of stuff is there, but they don't get to pull out their whole database of potential buyers of X product because they don't have access to it unless they buy it, and you're not complaining about

[00:13:52] Speaker 03:
them buying it, you're complaining about the teaser.

[00:13:54] Speaker 03:
So I see a real disconnect between what you're complaining about and it described as intrusive and what it is this is the subject of this lawsuit.

[00:14:05] Speaker 00:
Your Honor, the teaser profiles do two things.

[00:14:07] Speaker 00:
First, they give you enough information to know that the person you're searching for is in the database.

[00:14:11] Speaker 00:
And by you, I mean the B2B salesperson who might buy this product.

[00:14:15] Speaker 00:
They see that Odette Bates is there.

[00:14:17] Speaker 00:
They know she's someone they want to track.

[00:14:18] Speaker 00:
And then the teaser profile tells you, you have to purchase a subscription to learn more about this person.

[00:14:23] Speaker 00:
There are triggers listed in that profile.

[00:14:25] Speaker 04:
Let me ask you this, Counsel.

[00:14:27] Speaker 04:
From my perspective, you're just arguing the merits of your case.

[00:14:31] Speaker 04:
Why should the anti-SLAPP provision not apply in this case?

[00:14:38] Speaker 00:
Thank you, Your Honor.

[00:14:38] Speaker 00:
Yes, we are not here to discuss the merits.

[00:14:40] Speaker 00:
We are here to discuss the anti-SLAPP motion.

[00:14:42] Speaker 00:
Right.

[00:14:43] Speaker 00:
And how did the district court get it right from your perspective?

[00:14:47] Speaker 00:
Well, I think we would start with Martinez versus ZoomInfo, an identical case that came before this court three months ago.

[00:14:52] Speaker 00:
But the district court didn't have that.

[00:14:54] Speaker 00:
Correct, yes, that's an intervening change in law, but it makes your job easy here today because the facts and law involved in that case are identical to those present here.

[00:15:04] Speaker 00:
And the Martinez Court correctly ruled that an identical lawsuit brought by someone bringing a right of publicity complaint against ZoomInfo, which is a competitor product to DNB Hoover's, was a lawsuit in the public interest under Section 42517.

[00:15:19] Speaker 00:
And essentially Dun & Bradstreet has one argument to say that Martinez shouldn't apply here and it's the one you all discussed with opposing counsel just a moment ago.

[00:15:28] Speaker 00:
They claim that there's essentially that Martinez was wrongly decided because there's an exception to the exception and that because the teaser profile about Ms.

[00:15:35] Speaker 00:
Battis is an artistic literary or dramatic work.

[00:15:40] Speaker 00:
Martinez was wrongly decided.

[00:15:42] Speaker 04:
Let me ask you this.

[00:15:44] Speaker 04:
As you may know, Martinez is a subject of some discussion in our court.

[00:15:48] Speaker 04:
Let's just say, arguing that Martinez disappeared.

[00:15:52] Speaker 04:
What's your best argument in this case that the district court got the anti-SLAP provision correct?

[00:16:01] Speaker 00:
If you want me to choose the best one, I would be forced to choose between two, I suppose.

[00:16:06] Speaker 00:
But the single best would be the reasoning that the district court used, which is that the anti-slap motion failed at the first prong.

[00:16:15] Speaker 00:
which is that Dun & Bradstreet had to show that the plaintiff's claim arose from speech in connection with an issue of public concern.

[00:16:24] Speaker 00:
And Dun & Bradstreet simply failed to demonstrate that Ms.

[00:16:26] Speaker 00:
Battis's profile, Ms.

[00:16:27] Speaker 00:
Battis is a small town librarian in the city of Richmond, California, which includes a job description of her, the identities of her colleagues, her contact information, and the promise that you can track her internet web browsing behavior if you buy the product.

[00:16:40] Speaker 00:
Dun & Bradstreet failed to show that any of those things are speech on an issue of public concern.

[00:16:45] Speaker 00:
And the case law is quite clear on this point that a profile about a private individual that's simply factual information comes nowhere close to the standard for an issue of public concern.

[00:16:55] Speaker 00:
I point you to the Jams case, California appellate case.

[00:17:02] Speaker 00:
In that case, the ADR service Jams advertised its services by including a biographical profile about a retired judge on the website.

[00:17:12] Speaker 00:
The court ruled in that case that the biographical profile about the judge was not speech on an issue of public concern, and in fact, fell within the exception for commercial speech.

[00:17:23] Speaker 00:
That's my second argument, by the way.

[00:17:25] Speaker 00:
That's the second argument on which I would say the anti-SLAP statute doesn't apply.

[00:17:29] Speaker 00:
The commercial speech exception should apply here, even if I were to assume, arguing, as you asked me to, that Martinez was wrongly decided in the public issue defense.

[00:17:37] Speaker 00:
The commercial speech, I think, is even more squarely on the facts here.

[00:17:42] Speaker 00:
The commercial speech exception under Section 425-17 applies essentially to speech that is designed to promote a good or service.

[00:17:52] Speaker 00:
And actually, I'll remove essentially because I'm quoting now from the statute.

[00:17:56] Speaker 00:
and speech that is made for the purpose of promoting that good or service for which the intended audience is an actual buyer or potential customer.

[00:18:02] Speaker 00:
Here, Dun & Bradstreet just told you that the only people who can see Ms.

[00:18:06] Speaker 00:
Battis's profile are people who call up and ask for a free trial.

[00:18:10] Speaker 00:
It's distributed only to prospective consumers of the product, and it's made only for the purpose of promoting the D&B Hoover's product.

[00:18:18] Speaker 00:
So under Jams and other case law that we cited in the briefing, I think the commercial speech exception would apply squarely here.

[00:18:24] Speaker 01:
As Judge Smith was talking about, if Martinez disappears, what kind of a case do you have here to rely upon?

[00:18:35] Speaker 00:
Oh, well, so I just cited my two strongest arguments.

[00:18:39] Speaker 00:
Would you like the case law that supports each of those arguments then?

[00:18:45] Speaker 00:
Sure.

[00:18:45] Speaker 00:
You're saying jams primarily, right?

[00:18:48] Speaker 00:
That's for the commercial speech.

[00:18:49] Speaker 00:
That's my second argument.

[00:18:51] Speaker 00:
Cirova also supports our argument on that front.

[00:18:56] Speaker 00:
To go back to the decision that the district court itself made, which was on grounds that they failed to show speech in connection with a issue of public concern.

[00:19:06] Speaker 00:
Let me get you our best cases there.

[00:19:09] Speaker 00:
that was about the retired judge right that you cited uh... james was about the retired judge sarova was about a michael jackson album with the album cover claimed that michael jackson was the author of the tracks and there was an ongoing public dispute about whether michael jackson was in fact the author and the california court there

[00:19:27] Speaker 00:
California Supreme, I can't remember if it was California Supreme or Appeals, but in any case, it ruled that because that statement about the authorship was made for the purpose of promoting the product, even though it weighed in on an issue of public controversy, it's still qualified for the commercial speech exception.

[00:19:40] Speaker 00:
And that's just to illustrate how broad that commercial speech exception really is.

[00:19:44] Speaker 00:
Here, of course, no one's arguing Ms.

[00:19:45] Speaker 00:
Battis's profile weighs in on any issue of public discussion whatsoever.

[00:19:50] Speaker 00:
The cases I would cite in favor of the District Court's ruling, which is that they failed to show an issue of public concern, would be Hilton, Rivero, Piping Rock, and Fillmon.

[00:20:03] Speaker 00:
I would also cite Dun & Bradstreet versus Green Moss, which did not consider anti-SLAPP, but it did consider profiles of the exact type that are issued here.

[00:20:11] Speaker 00:
Now, I can go into each of those cases.

[00:20:14] Speaker 00:
Piping Rock, Hilton, and Rivero really lay out the standards for what is considered to be an issue of public concern.

[00:20:22] Speaker 00:
It has to be something, this is from Piping Rock, of concern to a substantial number of people.

[00:20:26] Speaker 00:
That case also says that a broad and amorphous public interest is not sufficient.

[00:20:33] Speaker 00:
And just pausing there, I'll get into the other standards, but let's talk about something of concern to a substantial number of people.

[00:20:37] Speaker 00:
Is Ms.

[00:20:38] Speaker 00:
Battice's name, job description, and contact information of concern to a substantial number of people?

[00:20:44] Speaker 00:
Dun & Bradstreet haven't shown that it is, and indeed, they've admitted that they only distribute the free teaser profile containing that information to a limited set of prospective purchasers who are B2B marketers.

[00:20:56] Speaker 00:
Then, the other factor I wanna highlight here is a broad and amorphous public interest is not sufficient.

[00:21:01] Speaker 00:
Now, in their motion before the district court, Dun & Bradstreet identified the following topic of public concern, business information.

[00:21:08] Speaker 00:
That's what they said, that's what the district court was evaluating.

[00:21:10] Speaker 00:
They've tried on appeal to change the topic that they've identified, but the issue on review is what did they present to the district court?

[00:21:16] Speaker 00:
They said the relevant topic was, quote, business information, and the district court correctly applied Pipe and Rock to conclude that that was too broad and amorphous a topic.

[00:21:25] Speaker 00:
to qualify.

[00:21:26] Speaker 00:
If something as generic as business interest qualified for anti-SLAP protection, the meaning of the requirements of the statute would be rendered meaningless.

[00:21:39] Speaker 00:
So let's go on to Hilton.

[00:21:41] Speaker 00:
That's another case I said was relevant here.

[00:21:43] Speaker 00:
Hilton really describes three categories that could qualify as an issue of public concern, none of which apply here.

[00:21:50] Speaker 00:
First, statements concerning a person in the public eye.

[00:21:53] Speaker 00:
And here I want to pause

[00:21:55] Speaker 00:
on the point that opposing counsel made that Ms.

[00:21:57] Speaker 00:
Battis is a public employee.

[00:21:59] Speaker 00:
That's true.

[00:22:00] Speaker 00:
She's a government employee.

[00:22:01] Speaker 00:
She's a small town librarian.

[00:22:02] Speaker 00:
However, the case law is unambiguous that the fact that someone is a public employee does not mean that statements about them are of widespread public interest.

[00:22:12] Speaker 00:
There are many public employees, including, for example, clerks of this court.

[00:22:16] Speaker 00:
There's a case that we cited in our briefing, the name of which escapes me at the moment, but it's about employees of the California state

[00:22:25] Speaker 00:
who, and the ruling was that statements about those individuals was not a statement of public concern simply because they were California State employees.

[00:22:35] Speaker 03:
Well, statements about the individual, but is the fact that a person is a public employee holding whatever particular job, librarian in her case, is that non-public information?

[00:22:50] Speaker 00:
Sorry, I want to distinguish between

[00:22:53] Speaker 00:
non-public information and the requirements of the anti-SLAP statute.

[00:22:58] Speaker 00:
It's a separate question whether the fact that someone is employed by the state government is a public piece of information.

[00:23:04] Speaker 00:
It may well be.

[00:23:05] Speaker 00:
The question that we're trying to answer right now is, is it a statement about an issue of public concern, which is a defined term under the anti-SLAP statute, and the case law says it has to be widespread

[00:23:18] Speaker 00:
An issue of widespread public discussion.

[00:23:21] Speaker 03:
You're not answering my question.

[00:23:22] Speaker 03:
You're going to explain and take it why my question doesn't matter.

[00:23:26] Speaker 00:
Yes.

[00:23:26] Speaker 03:
So I should accept as a proposition, because you're not denying it, that the fact that she is a government employee is not itself non-public information.

[00:23:35] Speaker 03:
I don't know the answer to that question.

[00:23:37] Speaker 03:
But it seems to me it does speak to the question of what the public interest here might be.

[00:23:45] Speaker 00:
I would agree with the first part.

[00:23:48] Speaker 00:
I don't know whether her status as a public employee is publicly known.

[00:23:52] Speaker 00:
I would suspect that it is, but I don't know and it's not relevant.

[00:23:57] Speaker 00:
But I don't think whether information is public is relevant to whether the

[00:24:03] Speaker 00:
statement or the speech being evaluated is a statement in the public interest within the meaning of the anti-SLAPP statute.

[00:24:09] Speaker 04:
So who decides that?

[00:24:11] Speaker 04:
Does the trier of fact, in this case the district judge, get to determine by herself, well this is interesting so we're going to let that fly but the other is kind of boring so we won't take notice of that?

[00:24:25] Speaker 04:
Is that what happens?

[00:24:28] Speaker 00:
Well, I think it is a judge-made determination, but that determination is informed as all judge-made determinations are by the statutory language and the case law.

[00:24:35] Speaker 00:
And here, I've just been citing the case law that gives color to the statutory language and makes clear that you need a specific, can't be broad on amorphous, it needs to be of concern to a substantial number of people.

[00:24:47] Speaker 00:
And lastly, in most cases, the statement will weigh in on some topic of controversy or some public discussion.

[00:24:54] Speaker 00:
There's no debate here.

[00:24:56] Speaker 00:
that Dun & Bradstreet has identified, in which Ms.

[00:24:58] Speaker 00:
Battis's contact information and job description were cited by someone trying to make an expressive point on a public debate.

[00:25:05] Speaker 03:
A long time Alderman in political power in Chicago was recently convicted.

[00:25:12] Speaker 03:
And some of the evidence talked about how many of his political operatives were on public payrolls.

[00:25:17] Speaker 03:
So the fact that they were on public payrolls became part of the trial.

[00:25:22] Speaker 03:
certainly a subject of public interest.

[00:25:25] Speaker 03:
I'm not saying every employee is going to fall on that status, but it gets a murkier area when, I don't know what this database discloses, but if the core of it is that your client is a librarian for whatever community, I can imagine circumstances where that might be of public interest.

[00:25:49] Speaker 00:
Possibly.

[00:25:50] Speaker 00:
Dun & Bradstreet didn't identify any such circumstances.

[00:25:52] Speaker 03:
Well, again, I don't know what's in the database.

[00:25:54] Speaker 03:
I'm not sure there's much that would be revealed there, but that's the merits question.

[00:26:00] Speaker 03:
I'm trying to figure out is there something there that potentially, and they've made the argument that somehow knowing who works for the government is something the public can be interested in.

[00:26:13] Speaker 00:
It could be.

[00:26:14] Speaker 00:
I want to be precise that here we're talking just about the teaser profile that's used to advertise, not the broader database.

[00:26:20] Speaker 00:
But with respect to the book.

[00:26:22] Speaker 03:
But you weren't so precise when you started off telling us how disturbing and intrusive this was.

[00:26:26] Speaker 03:
So we're trying to stick to the anti-SLAPP argument, but both sides are tiptoeing into the merits, as I have.

[00:26:35] Speaker 03:
Because it's hard to figure out what's involved here and what the public interest impact might be.

[00:26:43] Speaker 00:
Yes, Your Honor, that's part of why we've also argued on our brief that anti-slap appeals shouldn't be available on an interlocutory basis, because anti-slap inquiries necessarily implicate the merits, as Your Honors are getting into right now.

[00:26:54] Speaker 03:
For the time being, the three of us can't do anything about that.

[00:26:59] Speaker 00:
Understood.

[00:27:04] Speaker 00:
So, Your Honors, at this point, I think I will rest unless you have another question for me.

[00:27:11] Speaker 00:
Any other questions?

[00:27:12] Speaker 00:
I think not.

[00:27:13] Speaker 00:
Thank you, Council.

[00:27:14] Speaker 00:
Thank you.

[00:27:15] Speaker 04:
Very well.

[00:27:16] Speaker 04:
All right, Mr. O'Donnell, you have some rebuttal time.

[00:27:26] Speaker 02:
Your Honor, with regard to D2 and what is the D&B database, I would submit to Your Honors that the D&B database is indeed a literary work.

[00:27:38] Speaker 02:
It's what we're saying no more than we're the Wall Street Journal.

[00:27:44] Speaker 02:
And no one would say the Wall Street Journal doesn't have the right to offer a free trial.

[00:27:50] Speaker 02:
Just like, as the Amici point out in their brief, no one would say that a bookseller doesn't have the right to let his customers peruse through the books.

[00:28:04] Speaker 04:
You're saying your argument as to D2 is that what you have offered, in this case the teaser, is a literary work in the sense of the anti-slap statute?

[00:28:16] Speaker 02:
First of all, there is not a teaser, Your Honor.

[00:28:18] Speaker 02:
You go through Mr. Palmer's certification factually.

[00:28:23] Speaker 02:
He rebuts every single claim in the complaint, including that there was a pleading that there was a teaser.

[00:28:32] Speaker 02:
including the internet browsing.

[00:28:35] Speaker 02:
That doesn't occur.

[00:28:36] Speaker 02:
It's in a record at E91 through 96, his affidavit, his reply affidavit.

[00:28:43] Speaker 02:
You also have his affidavit, initial affidavit, I think in the ER 160s.

[00:28:50] Speaker 02:
Every single time he takes it through.

[00:28:53] Speaker 02:
What we're talking about is simply a free trial.

[00:28:58] Speaker 02:
There is no

[00:28:59] Speaker 04:
Well, all the more of a puzzle to me because you seem to be saying that in the categories that we've cited from the statute,

[00:29:12] Speaker 04:
that the one you're hanging your head on is that this was a literary work.

[00:29:17] Speaker 04:
I may not be an English professor, but I've read a lot of stuff, and I've never thought of a teaser in this type of being a literary work.

[00:29:28] Speaker 02:
What I'm saying is you cannot look simply at

[00:29:33] Speaker 02:
Mrs. Battis' name and number.

[00:29:35] Speaker 02:
You have to look at the product itself.

[00:29:38] Speaker 02:
That's what the Geyser case, the Geyser-Ekunsel.

[00:29:40] Speaker 04:
Can you tell us how big the font is?

[00:29:42] Speaker 04:
What are we talking about?

[00:29:43] Speaker 02:
The Hoover's database itself is what we're talking about.

[00:29:47] Speaker 02:
You have to look at that, Your Honor.

[00:29:50] Speaker 03:
And you have facts that... Okay, the old yellow pages were a directory.

[00:29:53] Speaker 03:
Yes.

[00:29:53] Speaker 03:
And then they also had a few pages of government information, why they have the tsunami zones and so forth.

[00:30:00] Speaker 03:
If you had a database that got sold based on the directory but had other things, does that make the total product a literary work or something other than a directory?

[00:30:17] Speaker 02:
Even what it does make is if you, for some reason, accept that these are teasers, it makes those teasers essentially ads that are inextricably intertwined with the database.

[00:30:34] Speaker 03:
Free trial.

[00:30:35] Speaker 03:
What's in a free trial?

[00:30:37] Speaker 03:
In access to a certain number of listings?

[00:30:40] Speaker 03:
Can they pick the listings?

[00:30:42] Speaker 02:
They can look at whatever they want in the database.

[00:30:46] Speaker 02:
The only restriction whatsoever is even paying customers need certain credits to look at certain elevated items.

[00:30:56] Speaker 02:
If you hit that, it just says, need credits.

[00:30:59] Speaker 02:
It doesn't say how much.

[00:31:00] Speaker 02:
It doesn't say buy or anything else.

[00:31:03] Speaker 02:
Zero.

[00:31:04] Speaker 02:
It doesn't say, it's not like Zoom info where it says solicitation.

[00:31:09] Speaker 02:
There are no teasers.

[00:31:11] Speaker 02:
There's no browsing.

[00:31:13] Speaker 02:
Alls it is is a free trial of Hoover's, which protected by the First Amendment.

[00:31:18] Speaker 04:
But time is up.

[00:31:19] Speaker 04:
Let me ask my colleague.

[00:31:20] Speaker 04:
Does either have additional questions?

[00:31:22] Speaker 04:
I think not.

[00:31:23] Speaker 04:
Thank you very much, Mr. O'Donnell and Mr. Osborne.

[00:31:28] Speaker 04:
The case just argued is submitted.

[00:31:30] Speaker 04:
Thank you, Your Honor.