Jeremy Rosen Quoted in Article on Lawsuit Over YouTube Video

Feb 01, 12

Jeremy Rosen, partner at Horvitz & Levy LLP and Vice President of the Board of Directors at PPP, was quoted in an article discussing a case in which a lawyer used a YouTube video to solicit plaintiffs for a class action lawsuit against the maker of a dietary supplement.

“It’s the medium, not the message, that did in Ropers Majeski Kohn & Bentley partner Thomas Clarke Jr., two weeks ago.

By posting on YouTube a video in which he solicited plaintiffs for a class action, the California 1st District Court of Appeal ruled that he’d opened himself up to a defamation suit and can’t use the state’s anti-SLAPP law to ward it off.

The 1st District panel expressed some sympathy with the statements Clarke made in the video, in which he reached out to class members for a suit against the maker of a dietary supplement. But, in finding the plaintiffs had shown a likelihood of prevailing on the merits, and that the litigation and common interest privileges don’t apply, the court took issue with his use of the internet.

“The manner in which Clarke disseminated [his call for plaintiffs], i.e., by making it available to the general public on the Internet, provides additional support, in accord with California case law, for the conclusion we reach here,” wrote Justice Martin Jenkins in the unpublished opinion.

The decision raises questions about the limits of the litigation privilege, and it also highlights some hot-button questions on the application of California’s anti-SLAPP law that remain unresolved, say appellate specialists who keenly track developments in that law.

Kerr & Wagstaffe partner James Wagstaffe, who represents Clarke and the firm, said they’re “disappointed” that the court didn’t apply long-held privileges for lawyers soliciting clients.

“Those communications have long been held to be part of the litigation privilege,” Wagstaffe said. “The only difference here was the communication took place on YouTube rather than in a meeting. In our view, that raises a cutting-edge issue.”

Supporters of a broad interpretation of the anti-SLAPP statute — which was designed to protect free speech and public participation — say the opinion exemplifies how plaintiffs are capitalizing on the confusion in the courts of appeal to make it harder for defamation defendants to block suits over protected activities by using the anti-SLAPP statute.

“It’s becoming more and more common for plaintiffs lawyers to try to combine different allegations together in a way that’s specifically designed to insulate a complaint from an anti-SLAPP motion,” said Horvitz & Levy partner Jeremy Rosen, who’s not involved in the case but has handled anti-SLAPP appeals.”

Read the rest of the article from here:

Leave a Reply