Menu
Aaron Morris
  • Publications by Aaron Morris
  • Best Financial Hacks
  • Loving the Law
  • All Articles
Aaron Morris

How I Defeated an anti-SLAPP Motion by Doing Almost Nothing

Posted on March 13, 2023March 13, 2023

Win anti-SLAPP doing nothing

Sometimes delay can be a good thing. Here is the tale of an anti-SLAPP motion defeated by time.

Because of certain changed circumstances, a massive company, we’ll call it Optimus, found itself in a bad situation. The facts are very complicated, but here is a simplified, made-up analogy that will set the scene.

Picture that Optimus is in the cold-remedy business, and a number of its formulations contain acetaminophen. But one day it is discovered that when acetaminophen is aerosolized, it cures baldness, and can be sold at a much higher price for that purpose. All of the suppliers want to bail on providing acetaminophen to Optimus, so Optimus comes up with a complaint it intends to use across the country against its suppliers, to force them to honor their agreements. Optimus knows that the suppliers will claim that the new use is a better use for the acetaminophen, because curing baldness is obviously the best conceivable use of any drug, especially as compared to a little pain and fever relief during a cold. The complaint by Optimus will challenge that legal theory and, if successful, will get all its other providers back into line.

But before Optimus can file its first test case, one of its suppliers, Megatron, files a declaratory relief action under the aforesaid theory. In response, Optimus tweaks its test action and files it as a cross-complaint.

From an anti-SLAPP standpoint, Optimus steered very close to SLAPP territory, because its cross-complaint included allegations that Megatron’s lawsuit was causing it harm. As I have written here before, suing someone for suing (in anything other than the malicious prosecution context) is almost always a SLAPP due to the litigation privilege. But the attorneys for Optimus had done a great job of making clear that the complaint was not based on the litigation, but rather the litigation was just another example of Megatron’s intentional interference with Optimus and its business.

But the attorneys at Megatron failed to read the cross-complaint in detail. They saw that there were allegations relating to the litigation, and immediately thought SLAPP. (It’s certainly OK to think SLAPP, but having done so, you need to do a little analysis.) They dutifully filed an anti-SLAPP motion, and I was brought in to assist with opposing the motion.

I researched and drafted the opposition to the anti-SLAPP motion, with the assistance of the fine attorneys at Optimus. Soon after we filed the opposition, and the Megatron attorneys realized that the Sultan of SLAPP was opposing the motion, they withdrew it and curled into a fetal position. At least that’s how I choose to picture what happened. But in reality, it probably went more like this.

We had the bad luck of being in a court that takes forever to hear motions, and is unwilling to give anti-SLAPP motions any priority. Making matters worse, as the date drew near, the judge apparently had no time to work it up, and set a new date, again off in the distant future.

boxer downA few days before the new hearing date, Megatron’s attorneys filed a notice that they were withdrawing the anti-SLAPP motion. Of course, I immediately took full credit, but the more likely scenario is that the withdrawal was a result of another of Optimus’s cases. Another court on another matter had ruled against a supplier, finding that the “higher and better use” argument was not a basis to breach their supply contract with Optimus. Although not actual precedent to our case, Megatron was forced to see that the argument probably wasn’t going to fly in our case as well. They would be in the position of having to argue on the second prong that Optimus was not likely to succeed on its claim to force them to continue providing acetaminophen, when a court had just done exactly that.

As much as I would have loved to see the motion play out, this was a best result for the client. Indeed, the result was amazing because by Megatron filing the anti-SLAPP motion, the matter was on hold from discovery all the many months the court kept kicking it down the street. Effectively, Optimus was able to spend almost nothing defending this case, while testing its theory as the plaintiff in another jurisdiction.

 

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

Contact Aaron Morris

Aaron Morris
Random Thoughts Publishing
Orchard Technology Park
11 Orchard Road, Suite 106
Lake Forest, CA 92630

(951) 339-1500
Email Aaron Morris

Useful Information?

Buy me coffee logo

From Best Financial Hacks

  • 35 percent offSave 35% On All Your Purchases!
  • fired woman with box9 Employment Myths that Will Bite You in the Butt
  • social securityThe Gonzo Guide to Social Security
  • cash taxStop Wasting Money on the Cash Tax!
  • cash tax on laptop purchaseShove Your Financial Statistics; I Choose Not to Participate
  • guide to benefits6 Crazy Good Credit Card Benefits You are Missing
  • Man with credit cardGame Changer — Chase Freedom Flex Credit Card Review
  • spend points on amazonNever Spend Your Points on Amazon (or Cash Them Out)
  • Woman with Credit CardThink Twice Before You “Upgrade” Your Credit Card
  • fly free to hawaiiHow to Fly FREE to Hawaii, First Class, Every Year, for the Rest of Your Life!
  • 0% credit cards calculationsThe 0% Credit Card Strategy – Best Financial Hacks
  • Instant GratificationWhy Instant Gratification can be Financially Savvy
  • How to Get FREE Audiobooks
  • side hustleThe Importance of a Side Gig and Why You Need to Know Your “Hourly Rate”

From Loving the Law

  • angry attorneyThe Case of the Posturing Attorney — Loving the Law
  • Botox partyYou Got Me in Trouble With the Law, so Now You Have to Pay
  • lending moneyThe Case of the Man Who Needed Some Tough Love — Loving the Law
  • posturing attorneyPosturing Attorney Perils
  • greedy businessmanThe Case of the Greedy Investor – Loving the Law
  • The Case of the Thin-Skinned Councilman — Loving the Law
  • super heroes making the law betterMaking the Law Better, One Crazy Case at a Time
  • You’ve Got to Know When to Hold Them, Know When to Fold Them
  • Morris & Stone Wins $3.9 Million Defamation Judgment
  • Putting the “Alternative” Back Into Alternative Dispute Resolution
  • MichiganThe Case of the Motorhome Snob — A Jurisdictional Tale

Disclaimer

3D illustration of "DISCLAIMER" title on legal document

NOTICE PURSUANT TO BUSINESS & PROFESSIONS CODE SECTION 6158.3: This is not a legal site. In my “Loving the Law” series, I tell stories that illustrate why I enjoy practicing law. While I sometimes use my litigation victories as the basis for a story, the outcome of any case will depend on the facts specific to that case. Nothing contained in any portion of this web site should be taken as a representation of how your particular case would be concluded, or even that a case with similar facts will have a similar result. The result of any case discussed herein was dependent on the facts of that case, and the results will differ if based on different facts. And of course, nothing here should be taken as legal advice.

©2023 Aaron Morris | WordPress Theme by Superb WordPress Themes
Cleantalk Pixel