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Ninth Circuit:
ZoomInfo’s Anti-SLAPP Motion Is Barred by Exemption
Judges Say Privacy Action Brings Into Play ‘Public Interest,’ Defeating Special Motion to Strike
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Thursday affirmed the denial of an anti-SLAPP motion under California law put forth by ZoomInfo, a company that provides online information on individuals gleaned from public records and other sources, in an action by a woman who claims the operations violate privacy rights.
Circuit Judge M. Margaret McKeown authored the opinion which holds that an exception to the ZoomInfo anti-SLAPP statute, Code of Civil Procedure §425.16, pertains. However, in concurring opinions, she and Circuit Judge Roopali H. Desai expressed the view—contrary to Ninth Circuit precedent—that federal courts should not permit interlocutory appeals from the denial of special motions to strike.
The motion by ZoomInfo was in response to a complaint filed by Kim Martinez, political and legislative director of the American Federation of State. County, and Municipal Employees, Local 51, a labor union representing government employees. The Zoomlnfo website offers, free, a “teaser” profile setting forth the plaintiff’s job title, employer, contact information for AFSCME, and other information.
To obtain the full profile, it is necessary to become a subscriber—which costs $10,000 or more a year—or supply ZoomInfo with the names and contact information of everyone the subscriber emails.
Martinez alleges in her putative class action that ZoomInfo violates California’s privacy statute, Civil Code §3344.
CCP §425.17 Cited
The anti-SLAPP motion was properly denied by a District Court judge in the State of Washington, McKeown wrote, bit not for the reasons the judge set forth. She said the motion is barred by California Code of Civil Procedure §425.17(b) which provides:
“Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist: [¶] (1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member.
“A claim for attorney’s fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision. [¶] (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. ]¶] (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.”
All three requirements are met, McKeown declared.
“We hold that, on the face of Martinez’s complaint, her case is brought solely in the public interest and therefore is exempt from California’s anti-SLAPP law,” she wrote.
Personal Relief
ZoomInfo argued that Martinez cannot invoke the public-interest exemption because she is seeking personal relief.
McKeown noted that there is no California Supreme Court decision that is directly in point. She cited the Oct 24, 2012 opinion by Div. Three of the Fourth District Court of Appeal in People ex rel. Strathmann v. Acacia Research Corp. for its persuasive value.
The court there said:
“A claim brought on behalf of the general public might include some kind of individual relief, in which case, it would have to be determined under section 425.17(b)(1) whether that relief is greater than or different from the relief sought for the general public.”
The Ninth Circuit judge wrote:
“The bottom line is that seeking individualized relief is permissible and not a death knell to the public interest exemption.…Thus, a request for individual relief is the starting, not the ending, point for the § 425.17(b)(1) analysis.
“No California intermediate appellate authority undermines this conclusion.”
McKeown’s Concurring Opinion
In her concurring opinion, McKeown said:
“I write separately to question the propriety of our court reviewing on interlocutory appeal denials of anti-SLAPP motions to strike. My particular objection is that a motion based on California’s anti-SLAPP statute is wholly grounded in that state’s procedural law. yet we have infused it with substantive significance….Over time, we have mined the statute into a ground for interlocutory appeal in the federal courts.”
The jurist opined that the practice is “at odds with the venerable doctrine of Erie Railroad Co. v. Tompkins, a 1938 U.S. Supreme Court opinion in which it was held that federal courts must apply substantive state law in diversity cases that do not involve federal questions, but that federal procedural rules would be followed.
McKeown observed that the Ninth Circuit has “even decided that we will adopt the California state procedural rules as to when the denial of a SLAPP motion is appealable.”
She remarked:
“We have turned a blind eye to the incongruity of this practice—with Erie and with common sense—for too long.”
Desai’s Opinion
Desai said in a concurring opinion, in which McKeown joined:
“I write separately to urge our court to reconsider our precedent allowing interlocutory appeals of such collateral orders in the first place.”
He commented:
“[T]he merits of the plaintiff’s claims and the defendant’s defenses can be reviewed upon a final judgment. That the anti-SLAPP statute itself may provide for interlocutory appeal of denials of anti-SLAPP motions to strike in state court does not alter this analysis in federal court.”
The third member of the panel was District Court Judge Roslyn O. Silver of the District of Arizona, sitting by designation.
The case is Martinez v. ZoomInfo Technologies, Inc., 22-35305.
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