Very interesting new (unpublished) opinion from the First Appellate District with significant implications for lawyer advertising and client solicitation, especially with regard to Internet and other mass media solicitation. Check out Kate Moser’s analysis on Law.com: http://www.law.com/jsp/article.jsp?id=1202540890419&slreturn=1. The opinion can be read here: http://www.courtinfo.ca.gov/opinions/nonpub/A127544.PDF.
The case involved a lawyer, Thomas Howard Clarke, Jr., who recorded and posted a Youtube video clip in which he spoke about an herbal supplement created by Brain Research Labs, LLC. Although the clip was intended to solicit clients to join a class action lawsuit against the company, Clarke also spoke more generally, condemning both the herbal supplement industry as a whole and BRL in particular for making various false claims about their products, which Clarke went on to state, often cause injury and even death.
BRL brought a defamation suit against Clarke and his firm, which Clarke answered with an anti-SLAPP motion. The trial court denied the motion. On appeal, the primary issue became whether Clarke was entitled to protection from the litigation privilege, which in California is codified as Civil Code section 47, subdivision (b).
The litigation privilege generally protects statements made in the course of litigation from being the basis for later derivative lawsuits, such as claims for libel or slander, as well as any other tort claim (besides malicious prosecution). Because the statements in the Youtube video were intended to solicit clients for a class action lawsuit, Clarke argued, he should be entitled to protection from the litigation privilege.
The First District disagreed. The Court found that “the video as a whole does not function intrinsically to assist in obtaining judicial relief,” as required in order for the privilege to apply. The Court pointed to the more general statements made by Clarke regarding BRL and the herbal supplement industry, statements which went beyond mere client solicitation for the particular class action lawsuit that had been filed. The Court also pointed — interestingly — to the nature of Youtube as a medium for the advertisement. Because the video could potentially reach a practically limitless number of people through the Internet, most of whom are not potential plaintiffs in the class action against BRL, the communication could not be characterized as the kind of narrowly-tailored client solicitation to which courts have previously applied the privilege.