At least three times a week, I end a telephone conversation with the following statement, after concluding that the legal action the caller is proposing would be met with an anti-SLAPP motion:

"I'm sure you can find any number of attorneys who will happily take your money to pursue this action, but I think you will be met with a successful anti-SLAPP motion if you move forward. If you do find an attorney willing to take this case, please ask them how they will deal with the anti-SLAPP motion. If they can't provide a good answer, don't pursue the case."

This was one of those cases. Ronee Sue Blakley found an attorney to pursue the case, it was met with an anti-SLAPP motion, and Blakley is now paying the price.

Consider the theory of this case. Blakley dated a guy for five years way back in the 80s, and 35 years later when said boyfriend wrote a screenplay about a fictional character, Blakley claimed the fictional character was based on her, and that the characterization was defamatory.

I never understand this reasoning. I recently received a call from a woman who was convinced that a person portrayed as an incompetent parent on a popular sitcom was based on her. (She knew one of the writers, and felt that he was using her as a model.) But if she wasn't an incompetent parent, then why would she think that other people would assume this incompetent parent was her? Even if the character was based on the caller, that is irrelevant unless the people watching the sitcom would understand the connection.

The court in the Blakley case came to the same conclusion. The judge found that a reasonable viewer of the movie would not see any similarities between Blakley and the character.

After granting the anti-SLAPP motion, the court awarded defendant $209,670 in attorney fees, representing 476 hours of attorney time. A high price to pay to take a run at such a thin claim.

This is a very important case in the anti-SLAPP world, and the Supreme Court may finally clear up the competing decisions as regards mixed causes of action.

Here is how these causes of action typically arise. A homeowner is having a dispute with a neighbor and sues for harassment and infliction of emotional distress, alleging that the neighbor has made false police reports, called child protective services, and has left dog poo on his lawn.

Of those allegations, two are protected activities -- calling the police and child protective services. The third, involving the dog poo, is not. So if the neighbor brings an anti-SLAPP motion, how should the court deal with these mixed causes of action?

Some courts have held that the entire claim falls under the anti-SLAPP motion, while others have held that the protected activity allegations should be stricken. Others still have held that the claim survives. Hopefully, this review by the California Supreme Court will finally resolve the issue.

This is another example of how, in a defamation action, the speaker gets to define his own words.

It sometimes comes up in my practice that I get a call from a potential client who wants to sue for defamation because someone referred to him as a "stalker". The caller has looked up the criminal code section that defines "stalker", and argues that he does not meet the elements, making the accusation false.

That analysis would only be true if the alleged defamer said or wrote, "Joe is a stalker as defined by the criminal code." But if the defamer merely stated, "Joe is a stalker," then what he meant by that is crucial. Stated another way, Joe does not get to define the term used by the defamer, unless that definition is reasonable.

This case presented that issue, with an additional layer. Here, a college professor was talking about slavery, and from a specific context, said it was "not so bad." The reporter from the New York Times who reported on the comment, said that the professor had stated that slavery was "not so bad", but really didn't provide the context.

The professor sued for defamation, stating the newspaper article took him out of context; that he didn't really mean to say that slavery was not so bad.

But here's the thing, Professor. We don't have to agree with your interpretation. I get that in your mind, you were attempting to make the point that from an external viewpoint, slaves were fed and clothed, and even got to sing in the fields as you put it, in order to make the point that what made slavery so horrific was its involuntary versus voluntary nature. But the author is free to decide that even in that context, your comment exhibits extreme insensitivity.

The NYT brought an anti-SLAPP motion on that basis, and the trial judge agreed and dismissed the action. "The Court finds that the references made to Block are not capable of defamatory meaning, nor do they place him in a false light," the judge wrote.

This is such an entertaining and ridiculous lawsuit.

In the movie American Hustle, Jennifer Lawrence plays a character named Rosalyn. The movie is set in the 70s, when microwave ovens were still relatively new, and Rosalyn makes the statement that microwaves cook the nutrition out of food. When another character questions that claim, she holds up a magazine and responds, "I read it in an article by Paul Brodeur."

Paul Brodeur is a real person, and claims that the fictional statement from a fictional character hurts his reputation. During the 70s, Brodeur wrote about the dangers of microwave ovens, but he never stated that they take the nutrition out of food, and he therefore claims that the idea that he would have written this (fictional) article stating that food loses its nutrition when cooked in a microwave is akin to having Carl Sagan say that the sun revolves around the earth.

Brodeur should have been flattered that anyone remembered him, and laughed at the joke, but this is America, so he sued for a million dollars, claiming the statement was defamatory. The movie makers responded with an anti-SLAPP motion.

At the time, I gave the motion little chance of success, because I didn't think the movie makers would be able to meet the first prong of the anti-SLAPP analysis, and show that this was a matter of public interest. Apparently the judge agreed, and denied the motion.

European case law has created a questionable "right to be forgotten" and this is one of the strange results. 

Google had indexed a five-year-old article that spoke favorably of an artist, but was later compelled to take it down at the request of that artist. The original article contained an image of a painting by the artist, and he no longer liked that painting, and felt it might harm his reputation.

I do get really tired of the the, "I didn't understand what I was signing" defense, which is the argument being made by Hyland in this case. For example, I have received a number of calls over the years from contestants on American Idol, wanting to sue because the show made them look foolish, after signing an agreement with the show that they would not sue for being made to look foolish.

Nonetheless, the case is interesting in the anti-SLAPP context because it is outside the normal analysis of protected speech. By that I mean, when I prevail on an anti-SLAPP motion, it is often because the speech was subject to, say, the litigation privilege. It is because of that privilege that the plaintiff cannot make the requisite showing that he, she or it is likely to prevail.

Here, the reason the plaintiff can't prevail is simply because the contract prohibits it. No fancy privilege, just basic contract law.

Shame on the Latham & Watkins law firm.

I have proposed a law akin to the anti-SLAPP statute, which would apply to companies who seek to prevent former employees from creating competing businesses, and this case illustrates why.

The anti-SLAPP statute was passed because companies and individuals would use the time and expense of litigation as a means to silence criticism. If someone is saying something you don't like, just sue them. The critic is then faced with the prospect of spending tens of thousands of dollars on a defense, or just ceasing the criticism.

In the case of employees who leave a company to start a competing business, the business brings suit claiming the use of "trade secrets", and ties the former employees up in years of litigation; all the time knowing that the trade secrets do not exist and are certainly not being used. Sound familiar?

In this case, the plaintiff company brought in experts to testify that the former employees, no matter how good their intentions, they had to be prevented from competing under the doctrine of "inevitable disclosure". One problem, dear experts, inevitable disclosure is not a viable theory in California.

In any event, in this case the former employees beat the bogus suit, and then turned around and sued for malicious prosecution. They won $1.6 million against the company, but Latham & Watkins extracted itself via an anti-SLAPP motion.

But the Court of Appeal reversed, finding that the employees are very likely to prevail, because "this evidence, taken together, supports the conclusion that Latham pursued an obviously meritless claim against Former Employees."