Courtney Forrest Argues Anti-SLAPP Case in the Ninth Circuit
Last week, Kaiser partner Courtney Forrest argued an appeal in the United States Court of Appeals for the Ninth Circuit to defend our client’s important First Amendment rights.
In 2021, Kaiser client George Nader was sued by American companies engaged in retail and travel businesses (collectively, Mosafer). Mosafer uses the color of the Qatari flag in its trade dress and contends that it is intimately associated with Qatar in the eyes of its customers. Mosafer’s complaint alleged that Mr. Nader and others made public statements about the State of Qatar, including that it is a safe haven for terrorists and extremists, commits human rights abuses, and should be boycotted. None of these statements were commercial, and none referred to Mosafer, their industry, or any services they provide. Nevertheless, Mosafer brought unfair competition, false advertising, and trade libel claims against Mr. Nader, arguing that Mr. Nader’s political opinions about Qatar were part of a “Disinformation Conspiracy” designed to harm all Qatari-related businesses, including Mosafer.
Mr. Nader filed a motion to strike the complaint under California’s anti-SLAPP statute, which exists to allow for early dismissal of meritless cases aimed at chilling First Amendment expression through costly, time-consuming litigation. The district court granted the motion, finding that Mosafer’s claims arose from acts in furtherance of Mr. Nader’s right of free speech, and that Mosafer had failed to establish a reasonable probability of success on any of its claims.
On appeal, Mosafer is attempting to evade enforcement of the anti-SLAPP statute by relying on the narrow “illegal speech” exception, claiming that Mr. Nader’s conduct was illegal under the Foreign Agents Registration Act (“FARA”), and thus unprotected. However, it is settled law that mere allegations of illegal conduct cannot deprive defendants of the protection of the anti-SLAPP statute.
Mosafer claims that the California procedures governing the illegal speech exception cannot apply in federal court because they conflict with the Federal Rules of Civil Procedure. On behalf of Mr. Nader, Ms. Forrest argued that no such conflict exists because the illegal speech exception does not increase the burden on plaintiffs, which is already determined in accordance with the Federal Rules. Providing conclusive evidence of illegal conduct (if it exists) is one option available to plaintiffs to defend against an anti-SLAPP motion, but doing so is never required of them. When defendants challenge only the legal sufficiency of the complaint, as Mr. Nader did, the plaintiff can still respond merely by showing sufficiency of the pleadings under the Rule 12(b)(6) standard—something that Mosafer failed to do here.
A decision for Mr. Nader in this case would reinforce the robust protections that California’s anti-SLAPP statute provides for persons validly exercising their First Amendment rights. Conversely, a decision for Mosafer would potentially eviscerate those protections.
The case is Mosafer, Inc. et al. v. George Nader et al., No. 22-55265 (9th Cir.).
