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.
A 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.
