By Anthony J. Oncidi
Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)
ZL Technols., Inc. v. Does 1-7, 13 Cal. App. 5th 603 (2017)
ZL Technologies brought suit, alleging libel per se and online impersonation, against seven anonymous individuals who represented themselves as current or former ZL employees and who posted critical reviews of ZL's management and work environment on Glassdoor (a website where workers can post "reviews" of their employers). ZL served a subpoena on Glassdoor, requesting records identifying and providing contact information for the anonymous posters, but Glassdoor refused to comply. The trial court denied ZL's motion to compel Glassdoor to comply with the subpoena and eventually dismissed the lawsuit in light of ZL's failure to serve the defendants with the lawsuit. The court of appeal reversed, holding that the reviews contained statements that declared or implied provably false assertions of fact, providing a legally sufficient basis for a defamation cause of action. The court further held that "the constitutional protections [First Amendment and privacy rights] weigh in favor of requiring [ZL] to make a prima facie evidentiary showing of the elements of defamation, including falsity, before disclosure of a defendant's identity can be compelled."
Parrish v. Latham & Watkins LLP, 3 Cal. 5th 767 (2017)
In a prior litigation, FLIR Systems, Inc. and Indigo Systems Corp. (collectively, FLIR) brought suit against their former employees, William Parrish and E. Timothy Fitzgibbons (the Former Employees), for, among other things, misappropriation of trade secrets. The Former Employees defeated those claims and then obtained a ruling that the misappropriation of trade secrets claim had been brought against them in bad faith, which resulted in an order that FLIR pay the Former Employees their attorney's fees and costs in an amount exceeding $1.6 million. Thereafter, the Former Employees brought this malicious prosecution claim against FLIR's attorneys (Latham & Watkins LLP), which Latham moved to strike under the anti-SLAPP statute (Cal. Civ. Proc. Code § 425.16). The trial court granted the motion, and the court of appeal affirmed, but on different grounds, holding that pursuant to the interim adverse judgment rule, the denial of a dispositive motion on the merits in the underlying action (in this case, a summary judgment motion) established the existence of probable cause and precluded a subsequent malicious prosecution action. In this opinion, the California Supreme Court affirmed the judgment of the court of appeal.
