On May 17, 2010, the California Supreme Court issued an opinion in Simpson Strong-Tie Co., Inc. v. Gore, __ Cal.4th __ (2010), concluding that attorney advertising directed at users of specific allegedly defective product did not come within the commercial speech exemption to California’s Anti-SLAPP statute, codified at Code Civ. Proc. § 425.17(c).
The opinion considered trial and appellate court rulings which held that an attorney’s newspaper advertisement offering to evaluate potential claims arising out of potential defective deck screws was not the variety of commercial speech which the legislature intended to exempt from Anti-SLAPP protection when codifying Section 425.17. The Supreme Court agreed, concluding that it was not. Boiled to its essence, the Court’s conclusion turned on the fact that the defendant’s underlying action for defamation/libel did not “arise from” the attorney’s promotion of his services, but rather, the implied statements contained in the promotion that the defendant’s products were defective. Slip Opinion, at 20. However, as reasoned by the Court, “even an implication that Simpson's screws are defective ‘is not ‘about’ Gore's or a competitor's ‘business operations, goods, or services’” as required by Section 425.17(c)(1), and as such, “falls squarely outside section 425.17(c)'s exemption for commercial speech.” See id., at 20-23.
While Simpson does not ensure that an attorney advertisement will always trigger the first prong of Section 425.16, or that an attorney will ultimately prevail in prosecuting an Anti-SLAPP Motion, the Court’s decision is nonetheless important to ensure that practitioners at least have access to the Anti-SLAPP statute’s procedural protections – protections which are necessary to provide breathing room when in engaging promotional activity.