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Dr. Oz Wins Class Action Suit Through Novel Twist In The California Anti-Slapp Law

By Chip Babcock

Dr. Mehmet Oz along with Harpo Productions, Inc and SONY Pictures Television, Inc. were sued in a consumer class action in a California federal court over remarks made on the Dr. Oz Show regarding garcinia cambogia and green coffee bean extract as weight loss supplements. Three Plaintiffs claimed that the statements were fraudulent and violated California and New York state statutes prohibiting false advertising and consumer fraud.

The media defendants responded to the suit by filing a Motion to Strike under the California anti-SLAPP statute as well as a motion to dismiss pursuant to federal rule 12(b)(6). Although many federal circuits have held that state anti-SLAPP laws are procedural and therefore not applicable in federal court the Ninth Circuit, covering California, has long held that the California anti-SLAPP law protects defendants in both state and federal courts. Recently, however, the Ninth Circuit has begun to retreat on its long-standing precedent.

A Ninth Circuit case authorizes district judges to delay an anti-SLAPP decision until after discovery which, of course, largely defeats the objective of the law. The Plaintiffs responded to the Anti-SLAPP motion by citing this precedent and asked the Court to delay a hearing until after the discovery deadline and the District Judge agreed.

The Court denied the federal 12(b)(6) motion to dismiss except as to SONY which was dismissed from the case. Four years later discovery finally closed and the defendants filed motions for summary judgment and re-urged the anti-SLAPP motion.

Under the California law attorneys' fees and costs are mandatory if the defendants are successful. Usually, since the motion is determined without discovery and early in the case the fees and expenses are modest. In the Dr. Oz case the attorneys' fees alone were massive because of the discovery which Plaintiffs had insisted was necessary for the Court to rule on the motion.

As it turned out the Defendants' motion for summary judgment was very strong and they argued that if it was granted the anti-SLAPP motion would necessarily succeed with attorneys' fees and costs to follow. So shortly before the summary judgment hearing Defendants proposed that if Plaintiffs would dismiss their claims and the class claims with prejudice the Defendants would waive their right to attorneys' fees and costs in the event of a favorable ruling on the anti-SLAPP motion.

The Plaintiffs accepted the proposal and filed a statement of settlement which, at Defendants' insistence, recited that no money was being paid by Defendants to anyone at any time. The District Judge granted the dismissal.

The case illustrates the power of the anti-SLAPP statute even when it is not decided at the beginning of the case. The Plaintiffs who had very small individual damages (even assuming liability) were potentially at risk for millions and their lawyers might have faced criticism for not accepting the offer.

Chip Babcock was lead trial lawyer along with John Edwards, Carl Butzer and Trey MacDonald of Jackson Walker and Bill Haggerty of Ford Walker Haggerty & Behar.

 
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