Stutzman v. Armstrong

ROB STUTZMAN, et al., Plaintiffs, v. LANCE ARMSTRONG, et al., Defendants.

No. 2:13-CV-00116-MCE-KJN

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Dated: September 9, 2013

MEMORANDUM AND ORDER

Through this action, Plaintiffs Rob Stutzman, Jonathan Wheeler, Gloria Lauria, David Reimers, and Scott Armstrong (collectively "Plaintiffs") seek redress for violations of California law arising from alleged misrepresentations contained in and related to Defendant Lance Armstrong's books, including It's Not About the Bike: My Journey Back to Life, published by Defendant Penguin Group, and Every Second Counts, published by Defendant Random House.¹ Generally, Plaintiffs allege that Defendant Armstrong and the Publisher Defendants, along with Defendants William Stapleton and Thomas Weisel, misled consumers by representing the Armstrong Books as truthful works of nonfiction biography, when in fact these books were works of fiction containing false and misleading statements.

Plaintiffs, on behalf of themselves and others similarly situated, brought claims for violations of California's Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750 et seq. ("CLRA"); California's Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. ("UCL"); California's False Advertising Law, Cal. Bus. & Prof. Code §§ 17500 et seq. ("FAL"); negligent misrepresentation; and fraud and deceit. (Pls.' Compl., ECF No. 22.) Each Defendant filed an anti-SLAPP² Motion to Strike the First Amended Complaint, or portions thereof, pursuant to California Civil Procedure Code section 425.16. (Def. Random House Mot. Strike, April 26, 2013, ECF No. 36; Def. Penguin Mot. Strike, April 26, 2013, ECF No. 42; Def. Armstrong Mot. Strike, April 26, 2013, ECF No. 47; Def. Weisel Mot. Strike, June 3, 2013, ECF No. 55; Def. Stapleton Mot. Strike, June 3, 2013, ECF No. 57.) Specifically, Defendants Random House, Penguin, Weisel, and Stapleton filed anti-SLAPP motions to strike each of Plaintiffs' causes of action pursuant to section 425.16 (ECF Nos. 36, 42, 55, 57), while Defendant Armstrong moves to strike only Plaintiffs' CLRA, UCL, and FAL claims (ECF No. 47). Plaintiffs filed a timely opposition to each motion. (Pls.' Opp'n to Armstrong Mot., June 17, 2013, ECF No. 64; Pls.' Opp'n to Publisher Mots., June 17, 2013, ECF No. 65; Pls.' Opp'n to Defs. Weisel & Stapleton Mots., July 8, 2013, ECF No. 76.) The Court held oral argument on the Motions to Strike on August 8, 2013, and took the matters under submission. (See ECF No. 102.)

For the reasons set forth below, Defendants' Motions to Strike are GRANTED.

BACKGROUND³

This class action arises from alleged misrepresentations contained in and disseminated about Defendant Lance Armstrong's books, It's Not About the Bike: My Journey Back to Life, published by Defendant Penguin Group beginning in May 2000 and sold throughout California since that date, and Every Second Counts, published by Defendant Random House beginning in January 2003 and sold throughout California since that date. Also at issue are Defendant Lance Armstrong's books The Lance Armstrong Program: 7 Weeks to the Perfect Ride, published beginning in September 2000 and sold throughout California since that date; Lance Armstrong: Images of a Champion, published beginning in June 2004 and sold throughout California since that date; and Comeback 2.0: Up Close and Personal, published beginning in December 2009 and sold throughout California since that date. It's Not About the Bike: My Journey Back to Life was a number one best seller on the New York Times' best seller list, was on the hardcover best seller lists for twenty-four weeks, and was on the paperback best seller list for twenty-two weeks. Every Second Counts was also a best seller. According to Plaintiffs, the success of Every Second Counts and It's Not About the Bike permitted Armstrong to publish and sell, and thereby profit from, the other three books at issue.

Plaintiffs alleged that during the Class Period⁴ the books were sold to consumers in hardback, paperback, electronic, and audio book editions. Throughout the Class Period, Defendants' advertising, marketing, publicity, and other promotional efforts for the books represented these books as truthful and honest works of nonfiction biography or autobiography when, in fact, Defendants knew or should have known that these books were works of fiction.Plaintiffs allege that they were misled by Defendants' statements and purchased the books based upon the false belief that the books were "truthful and honest works of nonfiction biography." (ECF No. 22 at 3.) Plaintiffs would not have purchased these books, or would have not paid as much money for the books, had Plaintiffs known the truth concerning Armstrong's lies and misconduct and his admitted involvement in a sports doping scandal that has led to his recent public exposure and fall from glory.

Plaintiffs further allege that prior to and during the Class Period, Defendants engaged in a scheme to defraud consumers, including Plaintiffs and Class Members, by creating and perpetuating the Lance Armstrong "brand" to enable Defendants to reap millions of dollars in unlawful profits. According to Plaintiffs, beginning in 1998, if not earlier, the Lance Armstrong "brand" was created by Defendant Armstrong, his financier and cycling team owner, Defendant Thomas W. Weisel, and his agent-manager, Defendant William J. Stapleton.

Plaintiffs allege that an integral part of the "multi-faceted scheme to defraud Plaintiffs" was the publication, advertising, marketing, and sale of the books throughout California. On the books' covers and flyleaves, as well as in advertisements, marketing, and promotional materials, Defendants portrayed Armstrong as a "regular, hardworking, motivated, complicated, occasionally pissed-off, T-shirt wearing guy," and as a devoted advocate for cancer patients. (ECF No. 22 at 22.) Plaintiffs claim that during the period from 1999 through 2012, Defendants knew that if the public believed that Armstrong had used performance enhancing drugs, Defendants would be unable to sell these books and the books would not be best sellers. Thus, according to Plaintiffs, another integral part of the scheme to defraud Plaintiffs, while maintaining and growing the Lance Armstrong "brand," was to vociferously and publicly deny any charge that Armstrong used performance enhancing drugs. Both Defendants Armstrong and Stapleton made such public denials from July 1999 through August 2012. Plaintiffs allege that such false and misleading denials were made during interviews broadcast on television worldwide, in print media, and in sworn testimony.

Furthermore, Plaintiffs claim that "another part of the scheme was the agreement, tacit or otherwise, on the part of the book publishers" Random House and Penguin "to ignore and/or avoid conducting a careful investigation into the merits of the doping charges that were repeatedly leveled against Armstrong during 1999 through 2012." (ECF No. 22 at 5.) Plaintiffs allege that the Publisher Defendants refused to make such an investigation so that they could continue advertising, marketing, and selling It's Not About the Bike and Every Second Counts and thereby continue to profit.

"Sometime between 2001 and 2003," Plaintiff Stutzman "learned about the book It's Not About the Bike." (ECF No. 22 at 7.) Plaintiff Stutzman bought the book and read it cover to cover; he found the book compelling and recommended the book to several friends. Plaintiff Wheeler followed Defendant Armstrong's early cycling career and his cancer diagnosis and treatment, and purchased a copy of It's Not About the Bike shortly after it was published. Plaintiff Wheeler purchased the book after "learning through the media about [Defendant] Armstrong's supposedly truthful and inspiring account of his triumphant return to dominate the world of cycling after his devastating bout with testicular cancer." (Id. at 8.) Wheeler "was so impressed with It's Not About the Bike . . . that he bought Armstrong's follow-up book, Every Second Counts . . . ." (Id. at 8-9.) Plaintiff Lauria currently has breast cancer, and "was inspired by advertising featuring reports of Armstrong's successful battle against cancer, which moved her to purchase [Defendant] Armstrong's books." (Id. at 9.) Having learned that Armstrong took performance enhancing drugs to win races has left Plaintiff Lauria "bitterly angry," and she would not have purchased either book had she known that Defendant Armstrong had used such drugs. (Id.)

Plaintiff Reimers purchased It's Not About the Bike after seeing "advertisements regarding Armstrong's remarkable comeback to 'win' the Tour de France cycling race after conquering testicular cancer . . . ." (Id.) Finally, Plaintiff Scott Armstrong ("S. Armstrong") followed Defendant Armstrong's career, found Defendant Armstrong's career inspiring, and believed Defendant Armstrong's claims that he did not use performance enhancing drugs. "Relying on Defendant Armstrong's representations as to his drug-free life and cycling career, [Plaintiff] S. Armstrong purchased and read It's Not About the Bike." (Id. at 10.) Because Plaintiff S. Armstrong believed that Defendant Armstrong had told the truth in this book, Plaintiff S. Armstrong recommended the book to his friends. "[Plaintiff] S. Armstrong also read Every Second Counts due to his belief in Armstrong's false and misleading representations as to his drug-free life and cycling career." (Id.) Plaintiff S. Armstrong would not have purchased or read either book had he known that Armstrong's representations regarding his use of performance enhancing drugs were false.

STANDARD

California's anti-SLAPP (strategic lawsuit against public participation) statute is designed to discourage suits that "masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so." Batzel v....