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Pastimes : Investment Chat Board Lawsuits -- Ignore unavailable to you. Want to Upgrade?

To: dantecristo who wrote (1264)	3/19/2001 10:24:24 PM
From: Jeffrey S. Mitchell	Read Replies (1) \| Respond to of 12465

I've said this before but I think it worth repeating. There is a huge loophole in the anti-SLAPP procedure that needs to be closed as soon as possible: the fact that bogus federal causes of action, like the Lanham Act, can be used to essentially legally camouflage SLAPP suits. For those that aren't familiar with the Lanham Act, it was created to prevent the commercial misuse of a trademark. It was essentially created to protect companies from others making knockoffs of their products that closely resembled the originals to the point of possible confusion. It was not meant to be applied to non-commercial or obviously satirical uses, and it certainly was not meant to be applied as a means to keep people from "misusing" a company's name on an Internet message board, even for alleged personal gain (i.e. bashing a competitor and trying to appear confusingly similar to them are two very different things). The U.S. District Court rightly tossed out that claim against you (see: geocities.com However, as there is no case law that establishes that federal causes of action can be challenged using the anti-SLAPP procedure, all a company need do is toss in a bogus Lanham Act violation claim and, poof, there goes your legal right to file a special motion to strike the entire lawsuit. Instead, you have to spend time and money to get the bogus federal claim dropped, as you guys did. To think that Varian was able to use your getting the Lanham Act claim dismissed as a legal reason to get your initial special motion to strike turned down is a total miscarriage of justice, IMO. It is unfortunate that you couldn't have asked the court to simply apply the anti-SLAPP procedure to federal claims like the Lanham Act (because at the time there was no case law that the anti-SLAPP procedure could even be applied in a case brought in federal court at all). However, I'm wondering how the court can rule, like I think they should, in your favor without recognizing that by not expressly allowing the anti-Slapp procedure to be applied to federal charges they are in effect holding the door open for other Varians to use the federal courts as another way to jack up defendants' legal costs to force them into submission. - Jeff

To: dantecristo who wrote (1264)	5/1/2001 8:47:12 AM
From: dantecristo	Read Replies (5) \| Respond to of 12465

Varian's Responding Brief in CA Appeals in which they argue that discussions on company financial message boards are NOT public issues: "Delfino and Day focus on the fact that Varian Medical and Varian Semiconductor are publicly traded corporations. [Del AOB at 7; Day AOB at 31.] However, statements about publicly-traded companies are not automatically deemed to be in connection with a public issue. Cf. Isuzu Motors Ltd. v. Consumers Union of U.S., Inc. (C.D. Cal. 1999) 66 F. Supp. 2d 1117, 1122-24 (discussing circumstances under which corporation is deemed public figure); Vegod Corp. v. ABC, Inc. (1979) 25 Cal. 3d 763, 769-71 (discussing same and observing that "those assuming the role of business practice critic do not acquire the First Amendment privilege to denigrate such entrepreneur"). The record contains no evidence from which it can be found that Varian Medical or Varian Semiconductor have attained such notoriety or power of the press that any statement about them can be considered of public interest. [See App., passim.]" geocities.com