Tarla Makaeff v. Trump University, Llc , 715 F.3d 254 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TARLA MAKAEFF, on behalf of No. 11-55016
herself and all others similarly
situated, D.C. No.
Plaintiff-counter-defendant- 3:10-cv-00940-
Appellant, IEG-WVG
and
OPINION
BRANDON KELLER; ED OBERKROM ;
PATRICIA MURPHY ,
Plaintiffs,
v.
TRUMP UNIVERSITY , LLC, a New
York limited liability company,
AKA Trump Entrepreneur Initiative,
Defendant-counter-claimant-
Appellee,
and
DONALD J. TRUMP,
Defendant.
2 MAKAEFF V . TRUMP UNIVERSITY
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted
January 18, 2012—Irvine, California
Filed April 17, 2013
Before: Alex Kozinski, Chief Judge, Kim McLane
Wardlaw and Richard A. Paez, Circuit Judges.
Opinion by Judge Wardlaw;
Concurrence by Chief Judge Kozinski;
Concurrence by Judge Paez
SUMMARY*
California Anti-SLAPP Statute / Defamation
The panel reversed the district court’s denial of a pre-trial
motion to strike a counterclaim pursuant to California’s anti-
SLAPP statute, and remanded for further proceedings.
A disgruntled former customer sued Trump University for
deceptive business practices, and Trump University
counterclaimed for defamation. The district court held that
Trump University was not a public figure, and denied the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MAKAEFF V . TRUMP UNIVERSITY 3
motion to strike the defamation claim under the Anti-SLAPP
(Strategic Lawsuits Against Public Participation) statute.
The panel held that Trump University was a limited
public figure with respect to the subject of its advertising, and
to prevail on its defamation claim, must demonstrate that the
customer acted with actual malice.
Chief Judge Kozinski, joined by Judge Paez, concurred.
He believes that United States ex rel. Newsham v. Lockheed
Missiles & Spice Co., 190 F.3d 963 (9th Cir. 1999), is wrong
and should be reconsidered.
Judge Paez, joined by Chief Judge Kozinski, concurred.
He believes that United States ex rel. Newsham v. Lockheed
Missiles & Spice Co., 190 F.3d 963 (9th Cir. 1999), is wrong
and should be reconsidered. Judge Paez stated that another
reason to reconsider the application of state anti-SLAPP
statutes in federal court is that there are significant state-by-
state variations within the circuit.
COUNSEL
Eric Alan Isaacson (argued), Rachel L. Jensen, Amanda M.
Frame, and Thomas R. Merrick, Robbins Geller Rudman &
Dowd LLP, San Diego, California; Amber L. Eck, Zeldes &
Haeggquist, LLP, San Diego, California, for Plaintiff-
Counter-Defendant-Appellant.
Jill A. Martin (argued), Rancho Palos Verdes, California;
David Keith Schneider, Yunker & Schneider, San Diego,
California, for Defendant-Counter-Claimant-Appellee.
4 MAKAEFF V . TRUMP UNIVERSITY
Christopher M. Burke, Scott & Scott LLP, San Diego,
California, for Amicus Curiae Consumer Attorneys of
California.
David Blair-Loy, ACLU Foundation of San Diego & Imperial
Counties, San Diego, California, for Amicus Curiae
American Civil Liberties Union of San Diego & Imperial
Counties.
OPINION
WARDLAW, Circuit Judge:
No one would deny that Donald Trump, the real estate
magnate, television personality, author, and erstwhile
presidential candidate, cuts a celebrated, if controversial,
public figure. We must decide whether Trump University,
LLC, a private, for-profit entity purporting to teach Trump’s
“insider success secrets,” is itself a public or limited public
figure so as to implicate the First Amendment. Disgruntled
former customer Tarla Makaeff sued Trump University for,
among other things, deceptive business practices. In return,
Trump University counterclaimed against Makaeff for
defamation. Makaeff moved to strike the defamation claim,
contending that Trump University is a public figure and
therefore must show that she made her allegedly defamatory
statements with “actual malice,” a requirement she contends
Trump University cannot prove. See New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). Denying the motion to strike,
the district court held that Trump University is not a public
figure. We disagree. Trump University is a limited public
figure, and, to prevail here, must demonstrate that Makaeff
acted with actual malice. Because the district court erred by
MAKAEFF V . TRUMP UNIVERSITY 5
failing to recognize Trump University’s status as a limited
public figure, we reverse and remand for further proceedings.
I.
Donald Trump founded Trump University1 because he
has “a real passion for learning.” Trump, who describes
himself as Trump University’s chairman, portrays the venture
as the next step in his progression from real estate tycoon to
educator. “My books and seminars have always included a
strong educational or ‘lessons learned’ slant. . . . [Trump
University] grew out of my desire to impart my business
knowledge, accumulated over the years, and my realization
that there is a huge demand for practical, convenient
education that teaches success.” So born, Trump University
took shape as a limited liability company offering real estate
seminars and other training programs to would-be real estate
investors. Its stated mission is to “train, educate and mentor
entrepreneurs on achieving financial independence through
real estate investing.”
A.
Trump University has not been shy about touting its
connection to its eponymous creator. Evoking Trump’s well-
known reality television series, Trump University’s
advertisements promise that enrolling in Trump University is
1
After this action was filed, Trump University changed its name to “The
Trump Entrepreneur Initiative” because New York State Department of
Education officials objected to the corporation’s use of the term
“University.” See Michael Barbaro, New York Attorney General is
Investigating Trump’s For-Profit School, N.Y. Times, May 20, 2011, at
A18. For purposes of continuity, we use the name Trump University.
6 MAKAEFF V . TRUMP UNIVERSITY
“the next best thing to being [Trump’s] Apprentice.” Its
advertisements prominently showcase Trump’s photo while
urging consumers to “[l]earn from the Master,” and
promising to teach Trump’s “insider success secrets.” The
home page of Trump University’s website features Trump’s
photo next to the words: “Are YOU My Next Apprentice?
Prove it to me!” Trump University students are shown a slide
depicting Trump University as the latest of Donald Trump’s
achievements, alongside such feats as buying the “Taj Mahal”
casino in Atlantic City and completing the “Trump Tower” in
Manhattan.
Trump University has collaborated with Donald Trump
on several books.2 It holds the copyright in the books Trump
101, written by Donald Trump with Meredith McIver, see
Donald J. Trump, Trump 101: The Way to Success (2007)
(“Trump 101”), and Wealth Building 101, see Wealth
Building 101: Your First 90 Days on the Path to Prosperity
(Donald J. Trump, ed. 2007) (“Wealth Building 101”). Both
works tout Trump’s involvement with Trump University. For
instance, in his Foreword to Trump 101, Michael Sexton, the
president of Trump University, asserts that Donald Trump
“has made the decision to become an educator himself,
through his public appearances, The Apprentice, his books,
and now, Trump University.” Michael Sexton, Foreword to
2
W e grant Makaeff’s requests to take notice of book collaborations
between Donald Trump and Trump University, newspaper and magazine
articles, and web pages. See Fed. R. Evid. 201; Von Saher v. Norton
Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010)
(holding that it is proper to take judicial notice of various publications
introduced “to indicate what was in the public realm at the time, not
whether the contents of those articles were in fact true”) (internal
quotation marks and citation omitted).
MAKAEFF V . TRUMP UNIVERSITY 7
Trump 101, at xiv. In the Foreword to Wealth Building 101,
president Sexton asserts that
[o]ther organizations try to sell help alone,
without the proven expertise to back it up, and
just when you begin to realize that the advice
yo u pai d for i s unprove n a n d
ineffective—they try to sell you more
expensive products. They hook you on
promises and never deliver.
Neither I nor our chairman, Donald J.
Trump, would stand for that at Trump
University.
Michael Sexton, Foreword to Wealth Building 101, at ix.
Almost from its inception, Trump University drew public
comment. Donald Trump referenced the attention in 2005,
noting in a blog post on the Trump University website that
the nationally syndicated comic strip “Doonesbury” spent a
week lampooning “the disparity between [Trump University]
and a traditional university.” The post was entitled: “We’re
laughing all the way to the bank.”3 By 2007, however,
disappointed customers had begun posting complaints about
Trump University on Internet message boards. Some posts
alleged that Trump University programs were “scams” that
focused on “upselling” customers to more expensive seminars
and workshops. In late 2007, an investigative article by
journalist David Lazarus of the Los Angeles Times
3
The post also noted that Trump University had been mocked in one of
television host Jay Leno’s monologues and the New York Post’s Page Six
cartoon.
8 MAKAEFF V . TRUMP UNIVERSITY
questioned Trump University’s business practices in the
larger context of the subprime mortgage crisis. See David
Lazarus, Trump Spins in Foreclosure Game, L.A. Times, at
C1, December 12, 2007. The column quoted Donald Trump
(“I love helping people”) and described a satisfied Trump
University customer (“I have control of four properties”), but
also cited the skepticism of real estate experts over “push[ing]
neophytes to take such risks” in the burgeoning foreclosure
market.4 Id.B.
In August 2008, Tarla Makaeff attended Trump
University’s three-day “Fast Track to Foreclosure Workshop”
at a cost of approximately $1,495, which Makaeff says she
split with a friend. Makaeff describes the seminars as slick
productions featuring carefully choreographed presentations,
speakers blaring “For the Love of Money,” the theme song
from Trump’s hit reality television series “The Apprentice,”
and Trump University representatives exhorting customers to
raise their credit card limits, ostensibly to enable “real estate
transactions,” but actually to facilitate the purchase of the
$34,995 “Trump Gold Elite Program.”
Apparently persuaded, Makaeff paid $34,995 to enroll in
the Gold Elite Program, which entitled her to four three-day
“advanced training workshops,” a three-day “mentoring
session in the field,” and “training publications, software, and
4
Four days later, the Los Angeles Times ran a follow-up piece by the
same journalist, recounting a phone conversation he enjoyed with an irate
Donald Trump following publication of the first column. See David
Lazarus, Trump’s a Grump About Column on His ‘Priceless’ Tips, L.A.
Times, at C1, December 16, 2007.
MAKAEFF V . TRUMP UNIVERSITY 9
other materials.” Makaeff’s satisfaction with the program
was short-lived. In April 2009, after completing five more
programs and workshops, and after seven months of the Gold
Elite Program, she wrote an email to Trump University
complaining that she was in a “precarious financial position”
and that she “did not receive the value that I thought I would
for such a large expenditure.” Makaeff had earlier spoken by
phone with a Trump University representative who had told
her that she was ineligible for a refund of the cost of the
program. In response to Makaeff’s email, Trump University
offered more free “mentoring services,” which Makaeff
accepted.
By Fall 2009, however, the relationship between Makaeff
and Trump University had gone irretrievably south. Makaeff
wrote to her bank and the Better Business Bureau, contacted
government agencies, and posted on Internet message boards
about her dispute with Trump University. Makaeff requested
a refund of $5,100 from her bank for services charged for
Trump University programs. In the letter to the Better
Business Bureau, Makaeff requested a refund of her
payments for services that she did not receive. In both letters,
Makaeff asserted that Trump University engaged in
“fraudulent business practices,” “deceptive business
practices,” “illegal predatory high pressure closing tactics,”
“personal financial information fraud,” “illegal bait and
switch,” “brainwashing scheme[s],” “outright fraud,” “grand
larceny,” “identity theft,” “unsolicited taking of personal
credit and trickery into [sic] opening credit cards,”
“fraudulent business practices utilized for illegal material
gain,” “felonious teachings,” “neurolinguistic programming
and high pressure sales tactics based on the psychology of
scarcity,” “unethical tactics,” “a gargantuan amount of
misleading, fraudulent, and predatory behavior,” and business
10 MAKAEFF V . TRUMP UNIVERSITY
practices that are “criminal.” Trump University claims that
Makaeff published similar statements to unknown third
parties and to the general public on the Internet.
In April 2010, Makaeff filed a class action complaint
against Trump University, accusing it of, among other things,
deceptive business practices. Trump University
counterclaimed against Makaeff for defamation based on the
statements in her letters and Internet postings. Thereafter,
Makaeff moved under California’s “anti-SLAPP” law,
California Code of Civil Procedure § 425.16, to strike the
defamation claim, a motion the district court denied. While
it held that Trump University’s suit arose from protected
conduct under the anti-SLAPP statute, the court concluded
that Trump University had demonstrated a reasonable
probability of prevailing on the merits of its defamation
claim, and therefore dismissal of that claim under the anti-
SLAPP statute was not warranted.
II.
California law provides for the pre-trial dismissal of
certain actions, known as Strategic Lawsuits Against Public
Participation, or SLAPPs, that “‘masquerade as ordinary
lawsuits’” but are intended to deter ordinary people “from
exercising their political or legal rights or to punish them for
doing so.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.
2003) (quoting Wilcox v. Superior Court, 33 Cal. Rptr. 2d
446, 450 (Ct. App. 1994)). We have jurisdiction to review
the district court’s denial of Makaeff’s anti-SLAPP motion
under the collateral order doctrine. See Hilton v. Hallmark
Cards, 599 F.3d 894, 900 & n.2 (9th Cir. 2010); see also Vess
v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir.
2003) (“Motions to strike a state law claim under California’s
MAKAEFF V . TRUMP UNIVERSITY 11
anti-SLAPP statute may be brought in federal court.”). We
review de novo the district court’s determination of a motion
to strike under California’s anti-SLAPP statute. Vess,
317 F.3d at 1102; Gilbert v. Sykes, 53 Cal. Rptr. 3d 752, 760
(Ct. App. 2007).
III.
California’s anti-SLAPP statute allows a defendant to file
a “special motion to strike” to dismiss an action before trial.
Cal. Civ. Proc. Code § 425.16. To prevail on an anti-SLAPP
motion, the moving defendant must make a prima facie
showing that the plaintiff’s suit arises from an act in
furtherance of the defendant’s constitutional right to free
speech. Batzel, 333 F.3d at 1024. The burden then shifts to
the plaintiff, here Trump University, to establish a reasonable
probability that it will prevail on its claim in order for that
claim to survive dismissal. Cal. Civ. Proc. Code
§ 425.16(b)(1); Gilbert, 53 Cal. Rptr. 3d at 760. Under this
standard, the claim should be dismissed if the plaintiff
presents an insufficient legal basis for it, or if, on the basis of
the facts shown by the plaintiff, “no reasonable jury could
find for the plaintiff.” Metabolife Int’l, Inc. v. Wornick,
264 F.3d 832, 840 (9th Cir. 2001) (citation and internal
quotation marks omitted).
In evaluating Makaeff’s anti-SLAPP motion, the district
court held that Makaeff had met her initial burden of showing
that Trump University’s claim arose from an act by Makaeff
in furtherance of her free speech rights. Proceeding to the
second step, the court concluded that Trump University had
established a reasonable probability of success on the merits
of the defamation claim. In particular, it held that Trump
University was not a public figure under Gertz v. Robert
12 MAKAEFF V . TRUMP UNIVERSITY
Welch, Inc., 418 U.S. 323, 345 (1974), and Trump University
therefore did not need to meet the heightened standard of
proof for defamation established in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). Under this heightened
standard, Trump University would have been required to
show that Makaeff made her statements with actual malice.
Gertz, 418 U.S. at 342.
A.
The district court was correct that Makaeff met her initial
burden of showing that Trump University’s defamation claim
arose from an act in furtherance of her free speech rights.
Vess, 317 F.3d at 1110. Under California’s anti-SLAPP
statute, such acts must be “in connection with a public issue,”
and include:
(1) any written or oral statement or writing
made before a legislative, executive, or
judicial proceeding, or any other official
proceeding authorized by law,
(2) any written or oral statement or writing
made in connection with an issue under
consideration or review by a legislative,
executive, or judicial body, or any other
official proceeding authorized by law,
(3) any written or oral statement or writing
made in a place open to the public or a public
forum in connection with an issue of public
interest, or
MAKAEFF V . TRUMP UNIVERSITY 13
(4) any other conduct in furtherance of the
exercise of the constitutional right of petition
or the constitutional right of free speech in
connection with a public issue or an issue of
public interest.
Cal. Civ. Proc. Code § 425.16(e). The district court
determined that Makaeff’s statements fell into the fourth
category, conduct in connection “with a public issue or an
issue of public interest,” because the statements provided
“consumer protection information.”
Under California law, statements warning consumers of
fraudulent or deceptive business practices constitute a topic
of widespread public interest, so long as they are provided in
the context of information helpful to consumers. For
instance, in Wilbanks v. Wolk, 17 Cal. Rptr. 3d 497 (Ct. App.
2004), Gloria Wolk, a consumer advocate and expert on
viatical settlements (arrangements in which dying persons sell
their life insurance policies to investors to help pay for
medical care and other expenses), posted negative comments
on her website about a certain broker of such settlements. Id.
at 499, 507. The California Court of Appeal held that the
statements were protected activity under the anti-SLAPP
statute because they were “consumer protection information.”
Id. at 507. It reasoned:
The statements made by [the defendant] were
not simply a report of one broker’s business
practices, of interest only to that broker and to
those who had been affected by those
practices. [The defendant’s] statements were
a warning not to use plaintiffs’ services. In
the context of information ostensibly provided
14 MAKAEFF V . TRUMP UNIVERSITY
to aid consumers choosing among brokers, the
statements, therefore, were directly connected
to an issue of public concern.
Id. at 507–08.
Similarly, in Paradise Hills Associates v. Procel, 1 Cal.
Rptr. 2d 514 (Ct. App. 1991), the California Court of Appeal
held that a disgruntled buyer’s statements made against a
seller were protected by the First Amendment. Id. at 523.
There, a homeowner embroiled in a dispute with a residential
developer posted signs on her house, spoke with reporters,
distributed leaflets, and spoke to prospective customers to
urge them not to buy houses from the developer. Id. at 516.
The developer sued, arguing that the homeowner’s statements
were not protected by the First Amendment because they
“relate solely to her private concerns.” Id. at 522. Rejecting
that argument, the court reasoned that consumers have an
“‘interest in matters which affect their roles as consumers.’”
Id. (quoting Concerned Consumers League v. O’Neill, 371 F.
Supp. 644, 648 (E.D. Wis. 1974)). The court therefore held
that the First Amendment protected the homeowner’s
statements. Id. at 523.
Here, according to Trump University’s defamation
counterclaim, Makaeff published statements to “unknown
third parties and the general public on the Internet.”5 Makaeff
5
Trump University’s appellate briefing omits any mention of Makaeff’s
Internet postings, limiting its arguments to the statements found in
Makaeff’s letters. However, California’s anti-SLAPP statute instructs the
court to base its determination on the “pleadings” and “affidavits” of the
parties. Cal. Civ. Proc. Code § 425.16(b)(2). Trump University’s
pleadings and the declarations of Makaeff and Trump University president
Michael Sexton reference the Internet postings. Moreover, the district
MAKAEFF V . TRUMP UNIVERSITY 15
claims she posted these statements “to alert other consumers
of my opinions and experience with Trump University,” and
to “inform other consumers of my opinion that Trump
University did not deliver what it promised.” Her explanation
is plausible. Makaeff’s letter to her bank suggests that she
spoke out with the goal of stopping Trump University from
defrauding other consumers:
I am contacting the Better Business Bureau
(BBB), the Federal Trade Commission (FTC),
Bureau of Consumer Protection and the FDIC
as well as posting the facts of my highly
negative experience on a wide variety of
Internet sites to ensure that this organization
at some point is stopped from defrauding
others with its predatory behavior. I am also
contacting the media to give them a statement
of facts so that they can expose this scam and
am willing to go to whatever lengths
necessary to obtain my money back including
taking legal action at the state and federal
levels for this crime that has been committed
to [sic] thousands of students nationwide who
have been preyed on and victimized as I know
I am one of many.
Makaeff’s posts on anonymous third-party websites could not
have resolved her private dispute with Trump University. We
therefore conclude that the postings constituted consumer
court referenced those Internet postings in the order denying Makaeff’s
motion. We are therefore satisfied that Trump University’s counterclaim
“aris[es],” at least in part, from Makaeff’s Internet postings to anonymous
third parties. Cal. Civ. Proc. Code § 425.16(b)(1).
16 MAKAEFF V . TRUMP UNIVERSITY
protection information because they were intended as “a
warning not to use plaintiffs’ services” and came in the
context of information that was “provided to aid consumers.”6
Wilbanks, 17 Cal. Rptr. 3d at 508.
Moreover, we have doubts about Trump University’s
claim that Makaeff wrote her letters to her bank and the
Better Business Bureau with purely private motives. The
Better Business Bureau identifies its mission as advancing
trust in the marketplace by offering objective and unbiased
information about businesses to consumers.7 Therefore, the
statements Makaeff made in her letter to the Bureau, even if
made in the context of a request that it intercede in her
dispute with Trump University, are not so easily separated
from “information . . . provided to aid consumers.” Id.
Because at least some of Makaeff’s statements were made
with the intent to warn consumers about the educational
experience at Trump University, we agree with the district
court that Trump University’s counterclaim arises from an act
protected under the anti-SLAPP statute.
B.
Because Trump University’s counterclaim arose from an
act protected under the anti-SLAPP statute, the burden shifts
6
In her declaration supporting her motion to strike, M akaeff asserts that
she contacted the Attorney General of New York, Federal Trade
Commission, Federal Bureau of Investigation, New York State Board of
Education, New York Bureau of Consumer Protection, and New York
District Attorney Special Prosecutors Bureau regarding Trump University.
7
See Vision, Mission and Values, BBB, http://www.bbb.org/us /mission-
and-values/ (last visited Mar. 22, 2013).
MAKAEFF V . TRUMP UNIVERSITY 17
to Trump University to show a reasonable probability of
prevailing on the merits of its claim. Metabolife Int’l,
264 F.3d at 840. Trump University’s claim is for defamation,
“an invasion of the interest in reputation.” Gilbert, 53 Cal.
Rptr. 3d at 764. Under California law, defamation is “‘the
intentional publication of a statement of fact which is false,
unprivileged, and has a natural tendency to injure or which
causes special damage.’” Id. (quoting Ringler Assocs., Inc.
v. Md. Cas. Co., 96 Cal. Rptr. 2d 136, 148 (Ct. App. 2000)).
Before we address Trump University’s specific allegations to
determine whether it has met its burden, we must first decide
(1) whether Makaeff’s speech is protected by California’s
litigation privilege, and (2) whether Trump University is a
“public figure.”
1.
If Makaeff’s statements lie within California’s statutory
litigation privilege, then Trump University has no probability
of success on the merits and Makaeff’s special motion to
strike should have been granted. California Civil Code
section 47(b) renders privileged, inter alia, any publication of
a statement made in a judicial proceeding, or “in the initiation
or course of any other proceeding authorized by law,” with
some specific exceptions. Cal. Civ. Code § 47(b). “[T]he
privilege applies to any communication (1) made in judicial
or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of
the litigation; and (4) that have some connection or logical
relation to the action.” Silberg v. Anderson, 786 P.2d 365,
369 (Cal. 1990). The privilege also applies to a
communication related to an anticipated lawsuit, if it is
preliminary to an imminent proposed lawsuit contemplated in
good faith and the purpose of the proposed litigation is to
18 MAKAEFF V . TRUMP UNIVERSITY
resolve the dispute. Edwards v. Centex Real Estate Corp.,
61 Cal. Rptr. 2d 518, 530–31 (Ct. App. 1997).
The district court correctly concluded that Makaeff’s
statements are not protected by California’s section 47(b)
litigation privilege. Makaeff cannot assert the privilege on
the basis that her statements were made in advance of an
anticipated lawsuit. Makaeff’s letters make no statement
more concrete than that she would be willing to go to any
lengths, including legal action, to get back her money.
Therefore, any lawsuit at the time she made her statements
was nothing more than a mere possibility, not imminent
proposed litigation. Id. at 530.
Moreover, Makaeff made her statements not in a judicial
proceeding, but to a private bank, the Better Business Bureau,
and to the general public on the Internet. Although California
courts have extended the litigation privilege to quasi-judicial
proceedings such as private commercial arbitration, see, e.g.,
Moore v. Conliffe, 871 P.2d 204, 219 (Cal. 1994), Makaeff
was not actually in arbitration with Trump University, as she
asserts. California courts have extended the litigation
privilege to only formal arbitration or mediation proceedings
to which the parties consented as an alternative to trial. See,
e.g., Howard v. Drapkin, 271 Cal. Rptr. 893, 864 (Ct. App.
1990) (where plaintiff and ex-husband stipulated that an
independent psychologist would serve as a neutral third party
to perform dispute resolution services, the psychologist was
entitled to protection for statements made during resulting
proceeding). Trump University never consented to arbitration
or mediation proceedings with Makaeff, her bank, or the
Better Business Bureau.
MAKAEFF V . TRUMP UNIVERSITY 19
2.
The next question we must answer is whether Trump
University is a public figure under New York Times Co. v.
Sullivan. If so, Trump University must demonstrate by clear
and convincing evidence that Makaeff made her allegedly
defamatory statements with “actual malice”; that is, “with
knowledge of [their] falsity or with reckless disregard for the
truth.” Gertz, 418 U.S. at 328, 342. If, upon remand, Trump
University cannot make such a showing, it has no possibility
of success on the merits and the district court should grant
Makaeff’s special motion to strike.
In Gertz, the Supreme Court identified two types of public
figures: (1) all purpose public figures, who occupy “positions
of such persuasive power and influence that they are deemed
public figures for all purposes,” and (2) limited purpose
public figures, who achieve their status by “thrust[ing]
themselves to the forefront of particular public controversies
in order to influence the resolution of the issues involved.”
Id. at 345. Because “[i]n either case such persons assume
special prominence in the resolution of public questions,”
both categories of public figures are subject to the heightened
burden of proof in defamation cases. Id. at 351.
The Court articulated two policy reasons for requiring
public figures to show actual malice. First, public figures
enjoy “greater access to the channels of effective
communication” than private individuals, and are therefore
better able to “contradict the lie or correct the error.” Id. at
344. Second, the Court identified a normative consideration,
rooted in the observation that public figures became such “by
reason of the notoriety of their achievements or the vigor and
success with which they seek the public’s attention.” Id. at
20 MAKAEFF V . TRUMP UNIVERSITY
342. In other words, true public figures voluntarily assume
positions of importance in society. Public speakers, the Court
noted, were thus entitled to act on the assumption that such
public figures had also willingly exposed themselves to the
risk of injury from defamatory falsehood. Id. at 345.
a.
The district court correctly held that Trump University is
not an all purpose public figure. “Absent clear evidence of
general fame or notoriety in the community, and pervasive
involvement in the affairs of society,” an individual is not a
public figure for all purposes. Id. at 352. The record does not
support the conclusion that Trump University is generally
famous or that it wields vast influence in public affairs.
Makaeff argues that Trump University is a public figure
because of its status as a “university.” A handful of New
York state cases have held that private colleges and
universities are all purpose public figures, see, e.g., Ithaca
Coll. v. Yale Daily News Publ’g Co., 433 N.Y.S. 2d 530, 534
(App. Div. 1980), but those cases are inapposite. Trump
University has little in common with the Ithaca Colleges of
the world. As a private, for-profit entity offering real estate
seminars to small groups of students, it possesses neither a
large, diverse student body, nor “general fame or notoriety”
in the community, both factors which the New York Supreme
Court, Appellate Division, found dispositive in Ithaca
College. Id. Indeed, Trump University more closely
resembles the private computer programming school in
Commercial Programming Unlimited v. Columbia
Broadcasting Systems, Inc., 367 N.Y.S. 2d 986, 992 (Sup. Ct.
1975), rev’d on other grounds, 378 N.Y.S. 2d 69 (App. Div.
1975), which the New York court concluded was not a public
figure.
MAKAEFF V . TRUMP UNIVERSITY 21
Makaeff and amicus ACLU Foundation of San Diego and
Imperial Counties, Inc. also argue that Trump University is an
all purpose public figure because it is inextricably intertwined
with Donald Trump, who all parties agree is an all purpose
public figure for First Amendment purposes. Makaeff and
the ACLU contend that père Trump’s public figure status
should be imputed to Trump University. We find this
argument unavailing. Makaeff cites for support an out-of-
circuit district court opinion, Schiavone Construction Co. v.
Time., Inc., 619 F. Supp. 684 (D.N.J. 1985), which we do not
find apposite. There, contractor Ronald Schiavone and his
construction company brought a libel action against Time,
Inc., over a magazine article that linked the name Schiavone
to organized crime. Id. at 686–87. The court held in a
footnote that if Schiavone was a public figure, then so was his
company:
Plaintiffs’ status in this regard is identical one
to the other. The court’s holding that
defamation of Schiavone Construction Co.
may be “of and concerning” plaintiff Ronald
Schiavone, simply because the two are
inextricably intertwined by name and
corporate structure, requires that if one is
deemed a public figure so must the other be.
Id. at 704 n.13 (citation omitted).
In Schiavone, the court’s holding was based on its earlier
observation that Schiavone was the principal owner, chairman
of the board of directors, CEO, and person “who might well
have been responsible for the major decisions” of his
construction company. Id. at 697. Although Donald Trump
is the founder and chairman of Trump University, he is not so
22 MAKAEFF V . TRUMP UNIVERSITY
“inextricably intertwined” with Trump University’s corporate
structure and daily affairs as to in effect be the alter ego of the
University, a showing Schiavone seems to require.8
b.
Because Trump University is not an all-purpose public
figure, we examine the nature and extent of Trump
University’s “participation in the particular controversy
giving rise to the defamation” to determine whether it is a
public figure for the limited purposes of a defamation claim
over its educational practices. Gertz, 418 U.S. at 352. In
undertaking this inquiry, we consider whether (i) a public
controversy existed when the statements were made, (ii)
whether the alleged defamation is related to the plaintiff’s
participation in the controversy, and (iii) whether the plaintiff
voluntarily injected itself into the controversy for the purpose
of influencing the controversy’s ultimate resolution. Gilbert,
53 Cal. Rptr. 3d at 762; see also Gertz, 418 U.S. at 351–52.
The district court assumed without deciding that a public
controversy existed regarding Trump University’s business
practices, but held that Trump University did nothing to
voluntarily thrust itself into the controversy. We disagree
with this holding.
8
Trump University argues that because the district court in Schiavone
made its holding in the context of determining whether the plaintiff was
a limited purpose public figure, see Schiavone, 619 F. Supp at 702, that
holding has no relevance to the question of whether Trump University is
an all purpose public figure. Because we conclude that Schiavone is
inapposite in any case, we do not address this argument.
MAKAEFF V . TRUMP UNIVERSITY 23
i.
We have little difficulty in concluding that a public
controversy existed over Trump University’s educational and
business practices when Makaeff made her statements about
them. As Donald Trump himself admits on the Trump
University website, Trump University provoked public
attention nearly from the outset, much of it derisive. Of
course, general interest in Donald Trump is not sufficient to
create a public controversy. Cf. Time, Inc. v. Firestone,
424 U.S. 448, 454–55 (1976) (“[D]issolution of a marriage
through judicial proceedings is not the sort of ‘public
controversy’ referred to in Gertz.”). Instead, a public
controversy “must be a real dispute, the outcome of which
affects the general public or some segment of it.” Waldbaum
v. Fairchild Publ’ns, 627 F.2d 1289, 1296 (D.C. Cir. 1980);
see also Annette F. v. Sharon S., 15 Cal. Rptr. 3d 100, 112
(Ct. App. 2004).
Here, any general interest in Trump University stemming
from its celebrity founder soon ripened into an actual dispute
over Trump University’s business and educational practices.
By 2007 and 2008, disgruntled Trump University customers
were posting complaints on public Internet message boards.
Also by 2007, a columnist for a mass market newspaper had
begun to report on Trump University’s educational practices
and business model. See Lazarus, Trump Spins in
Foreclosure Game, supra. The column describes a Trump
University seminar in unflattering terms, quotes both
supporters and detractors of Trump University’s programs,
and discusses Trump University’s educational practices
against the backdrop of the mortgage foreclosure crisis. Id.
We therefore conclude that by Fall 2009, the “specific
24 MAKAEFF V . TRUMP UNIVERSITY
question” of Trump University’s legitimacy had become a
public controversy. Waldbaum, 627 F.2d at 1297.
Moreover, this dispute had the potential to affect “the
general public or some segment of it in an appreciable way.”
Id. at 1296. Trump University’s business model involved
offering seminars that encouraged members of the public to
participate in the market for foreclosed properties, which had
grown substantially in the wake of the 2007 financial and
mortgage crisis. These activities, carried out by Trump
University and other purveyors of real estate investment
advice, had the potential to affect local housing markets by
increasing or decreasing real estate speculation in the market
for foreclosed homes. The debate over Trump University’s
business practices thus held ramifications not just for Trump
University and its customers, but for all participants in the
local housing markets. See id. at 1299 (a public debate over
the marketing policies of a cooperative supermarket held the
potential to affect consumers and industry retailers in the
surrounding area).
Thus, a public controversy existed over Trump
University’s business practices at the time Makaeff made her
statements in Fall 2009.
ii.
The district court erroneously concluded that Trump
University did not voluntarily inject itself into this public
controversy. Under Gertz, Trump University must have
“thrust [itself] to the forefront” of this particular controversy
“in order to influence the resolution of the issues involved.”
418 U.S. at 345. The district court concluded that even if
Trump University was involved in the controversy over its
MAKAEFF V . TRUMP UNIVERSITY 25
allegedly deceptive business practices, its involvement was
not voluntary. We disagree.
We hold, as have the Third and Fourth Circuits, that large
scale, aggressive advertising can inject a person or entity into
a public controversy that arises from the subject of that
advertising. Advertising, conducted on a large scale and
addressing or creating a public controversy, can be a way of
“voluntarily expos[ing] [the company] to increased risk of
injury from defamatory falsehood” concerning the company
and its advertised products. Id. Moreover, entities that
advertise aggressively “enjoy significantly greater access to
the channels of effective communication and hence have a
more realistic opportunity to counteract false statements then
[sic] private individuals normally enjoy.” Id. at 344.
In Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir.
1980), for instance, the Third Circuit considered a defamation
suit against a television consumer affairs reporter for
WTAE-TV in Pittsburgh, who was investigating a four-day
steak-sale bonanza promoted by a company called Steaks
Unlimited. She reported that the quality of the steaks was
low and the prices high, and further stated that Steaks
Unlimited’s advertising was deceptive. Id. at 268. The Third
Circuit held that Steaks Unlimited was a limited purpose
public figure because of its “advertising blitz”:
Immediately upon its entry into the
Pittsburgh area, Steaks launched an intensive
campaign over local radio stations, through
local newspapers, by large signs displayed at
the sales locations and by handbills given to
persons walking near Steaks Unlimited Sales
locations at the various Zayre stores. The
26 MAKAEFF V . TRUMP UNIVERSITY
advertising costs exceeded $16,000.00.
Moreover, both WTAE-TV and the Bureau of
Consumer Affairs received numerous
telephone complaints from Pittsburgh area
consumers, complaining about the poor
quality of Steaks Unlimited’s beef as well as
(about) asserted misrepresentations as to the
quality and type of beef being sold. Under
these circumstances, the district court
properly concluded that Steaks voluntarily
injected itself into a matter of public
interest—indeed, it appears to have created a
controversy—for the purpose of influencing
the consuming public. In short, through its
advertising blitz, Steaks invited public
attention, comment, and criticism.
Id. at 273–74 (internal quotation marks and footnotes
omitted).9 Similarly, the Fourth Circuit has held that an
organization was a limited purpose public figure based not
only on the fact of extensive aggressive advertising but upon
a “direct relationship between the promotional message and
9
The Third Circuit has refused to extend the principle to cases involving
defamatory advertisements by competitors. See U.S. Healthcare, Inc. v.
Blue Cross of Greater Phila., 898 F.2d 914, 938–39 (3d Cir. 1990).
There, two health-care companies engaged in negative comparative
advertising. Id. at 917–20. The court noted that “[u]nder traditional
defamation analysis, the parties’ considerable access to the media and
their voluntary entry into a controversy are strong indicia that they are
limited purpose public figures.” Id. at 938. But the court noted that
Steaks Unlimited “involved a consumer reporter’s statement, not a
comparative advertising campaign.” Id. at 938 n.29. Such statements
merited stronger protection than commercial advertising, which was
“chill-resistant” and not designed to air issues of public concern. Id. at
938–39.
MAKAEFF V . TRUMP UNIVERSITY 27
the subsequent defamation (indicating plaintiff’s pre-existing
involvement in the particular matter of public concern and
controversy).” Blue Ridge Bank v. Veribanc, Inc., 866 F.2d
681, 687 (4th Cir. 1989) (describing Nat’l Found. for Cancer
Research, Inc. v. Council of Better Bus. Bureaus, Inc.
(NFCR), 705 F.2d 98 (4th Cir. 1983)).
Here, as in Steaks Unlimited and in NFCR, Trump
University conducted an aggressive advertising campaign in
which it made controversial claims about its products and
services. This campaign included online, social media, local
and national newspaper, and radio advertisements for free
introductory seminars. Claims of legitimacy were also
propounded in the Foreword to Trump 101.10 The Foreword
to Wealth Building 101 specifically denied that Trump
University engaged in the practices that were the target of
Makaeff’s allegedly defamatory statements.11 This entire
advertising campaign makes Trump University a limited
public figure for purposes of the controversy that arose about
the legitimacy of its educational practices because its
extensive advertising efforts “invited public attention,
comment, and criticism.” Steaks Unlimited, Inc., 623 F.2d at
274. Moreover, there is a “direct relationship” between
10
For instance, it asserts that Donald Trump is “dedicated to education,”
and that Trump’s “direct insights, experiences, and practical know-how
[will] guide” Trump University students “throughout” their experience.
Sexton, Foreword to Trump 101, at xiv.
11
In it, Sexton notes that some organizations “hook you on promises and
never deliver,” and, moreover, that “just when you begin to realize that the
advice you paid for is unproven and ineffective— they try to sell you more
expensive products.” Sexton, Foreword to Wealth Building 101, at ix. He
promises, “Neither I nor our chairman, Donald J. Trump, would stand for
that at Trump University.” Id.28 MAKAEFF V . TRUMP UNIVERSITY
Trump University’s promotional messages and Makaeff’s
allegedly defamatory statements, which reflects Trump
University’s pre-existing involvement in this particular matter
of public concern and controversy. See Blue Ridge Bank,
866 F.2d at 687; see also Gilbert, 53 Cal. Rptr. 3d at 762
(“[T]he alleged defamation must be germane to the plaintiff’s
participation in the controversy.” (quoting Ampex Corp. v.
Cargle, 128 Cal. App. 4th 1569, 1577 (2005)). We hold that
under these circumstances Trump University is a limited
purpose public figure with respect to the subject of its
advertising.
We reject Trump University’s argument, based on the
reasoning of the California Supreme Court in Vegod Corp. v.
American Broadcasting Cos., 603 P.2d 14 (Cal. 1979), that
aggressive advertising of a message addressing a public
controversy cannot render an entity a limited public figure.
In Vegod, two firms sued for defamation over a television
news report criticizing the firms’ business practices in
conducting a close-out sale for a respected but bankrupt
department store, the City of Paris, the closing of which had
generated a public controversy given the store’s landmark
status. Id. at 15. The California Supreme Court held that the
plaintiffs were not limited public figures. Id. at 17. It
reasoned that while the close-out firms had conducted
aggressive advertising, their advertising standing alone did
not render them public figures. Noting that “[i]t does not
appear that plaintiffs urged City of Paris publicly or otherwise
to terminate business or to destroy the ‘landmark,’” the court
concluded that the advertising had not thrust the plaintiff
firms into the vortex of the controversy. Id. “Merely doing
business with parties to a public controversy does not elevate
one to public figure status.” Id.MAKAEFF V . TRUMP UNIVERSITY 29
Vegod is distinguishable. There, the plaintiffs’ close-out
advertising did not address the controversy over the planned
destruction of the landmark store, and thus the firms were not
limited public figures for purposes of that controversy. Id.There was no nexus between the critical news reports and the
controversial destruction of the store. See Gilbert, 53 Cal.
Rptr. 3d at 762. Here, Trump University’s advertisements,
including Sexton’s statements, both directly and indirectly
address the subject of Trump University’s educational
practices. Trump University therefore became a limited
public figure in the context of the controversy over those
practices. Moreover, the limited public figure analysis is not
a matter of state substantive law, but rather a pure
constitutional question. See Gertz, 418 U.S. at 332–35
(discussing the “constitutional privilege” established by New
York Times Co. v. Sullivan, 376 U.S. 254 (1964)). We are
simply not bound by California decisions on this issue.12
To be clear: Trump University is not a public figure
because Donald Trump is famous and controversial. Nor is
Trump University a public figure because it utilized Donald
12
Subsequent decisions by lower California courts appear to have
extracted from Vegod an inflexible rule that advertising never constitutes
“thrusting oneself into the vortex of a controversy.” Rancho La Costa,
Inc. v. Superior Court, 106 Cal. App. 3d 646, 661 (1980) (“The holding
of Vegod sufficiently answers that advertising is not thrusting oneself into
the vortex of a controversy.”); see also Hufstedler, Kaus & Ettinger v.
Superior Court, 42 Cal. App. 4th 55, 70 (1996) (citing Vegod and Rancho
La Costa for the proposition that, in a libel suit, the plaintiff bank’s
“advertisements themselves could not have been sufficient to transform
the Bank into a public figure”). W e believe these subsequent cases
misread Vegod; we do not read Vegod to have opined either so broadly or
so rigidly. In any event, we are not bound by California state decisions
because whether Trump University is a limited public figure is a question
determined under federal constitutional law.
30 MAKAEFF V . TRUMP UNIVERSITY
Trump as a celebrity pitchman. Trump University is a limited
public figure because a public debate existed regarding its
aggressively advertised educational practices. Did Trump’s
famous moniker draw public attention when Trump
University’s business practices proved worthy of debate?
Perhaps. However, having traded heavily on the name and
fame of its founder and chairman, Trump University was in
no position to complain if the public’s interest in Trump
fueled the flames of the legitimate controversy that its
business practices engendered.
c.
The district court concluded that Trump University was
not a limited public figure, and thus did not reach the question
of actual malice.13 Because Trump University is a limited
purpose public figure, to prevail on its defamation claim it
must establish that Makaeff made her statements with “actual
malice,” i.e., knowledge of their falsity or reckless disregard
of their truth. Gertz, 418 U.S. at 342. To demonstrate
reckless disregard of the truth, Trump University must show
by clear and convincing evidence that Makaeff “entertained
serious doubts as to the truth” of her statements. Id. at
331–32, 334 n.6 (quoting St. Amant v. Thompson, 390 U.S.
13Because a showing of actual malice necessarily depends on the falsity
of the statements at issue, the district court may assume the falsity of the
statements and proceed directly to the actual malice inquiry. If it
concludes that Trump University cannot establish a reasonable probability
of proving actual malice, it need not inquire whether the statements were
actually false for purposes of ruling on the motion to strike. Cf.
Underwager v. Channel 9 Austl., 69 F.3d 361, 368 (9th Cir. 1995) (where
the defamation plaintiff-appellant failed to demonstrate the existence of
a material dispute about actual malice, the reviewing court need not decide
whether he had established a dispute over falsity).
MAKAEFF V . TRUMP UNIVERSITY 31
727, 731 (1968)). If Makaeff was simply republishing a third
party’s allegations, mere proof of her failure to investigate the
veracity of such allegations does not establish reckless
disregard for the truth. Id. at 332. Trump University would
then need to show “obvious reasons” to doubt the truthfulness
of the original speaker, or the accuracy of his statements.
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657,
688 (1989) (quoting St. Amant, 390 U.S. at 732).
On appeal Trump University nevertheless argues that
Makaeff’s early testimonials praising Trump University
indirectly prove that she acted with a high degree of
awareness of the probable falsity of her later statements.14
However, it is plausible that Makaeff sincerely believed in
Trump University’s offerings when she submitted her written
and videotaped testimonials. The gist of Makaeff’s complaint
about Trump University is that it constitutes an elaborate
scam. As the recent Ponzi-scheme scandals involving one-
time financial luminaries like Bernard Madoff and Allen
Stanford demonstrate, victims of con artists often sing the
praises of their victimizers until the moment they realize they
have been fleeced. Makaeff’s initial enthusiasm for Trump
University’s program is not probative of whether she acted
with actual malice.
That Makaeff’s initial email to Trump University omitted
the complaints of Trump University’s alleged conduct that
she later published to third parties also proves little.
Makaeff’s first email to Trump University was a request for
14
W hile still in the program, Makaeff described Trump University’s
programs as “amazing” and “excellent” on rating sheets provided by
Trump University. Later, in June 2009, she was videotaped at a workshop
praising her mentor and saying favorable things about Trump University.
32 MAKAEFF V . TRUMP UNIVERSITY
a refund. It is possible that Makaeff chose to take a more
conciliatory tone at this early stage of their increasingly
acrimonious dialogue in the hopes of getting her money back.
Thus, the district court may find that this initial email is
consistent both with Makaeff’s later, supposedly defamatory
statements, and her contemporaneous goal of persuading
Trump University to give her a refund.
Trump University further asserts that Makaeff recklessly
republished the unverified complaints of anonymous third
parties on the Internet. While the Supreme Court in St.
Amant suggested that a statement “based wholly on an
unverified anonymous telephone call” might justify a finding
of actual malice, id. at 732, the district court may reach the
contrary conclusion: that Makaeff’s statements were not
based wholly on the anonymous Internet postings but were
instead based on Makaeff’s own educational experience.
That Makaeff herself was disenchanted with Trump
University may explain why she would not believe that the
critical postings of others were “inherently improbable.” Id.
Nor would the circumstances of the Internet postings
necessarily give Makaeff obvious reasons to doubt them—the
postings were made on an Internet message board that offered
no particular benefit to those who published statements
criticizing Trump University.
IV.
Because Trump University is a public figure for the
limited purpose of the public controversy over the quality of
the education it purports to provide, the district court must
address the inherently fact-intensive question of whether
Trump University has a reasonable probability of proving, by
clear and convincing evidence, that Makaeff made her critical
MAKAEFF V . TRUMP UNIVERSITY 33
statements with actual malice. We therefore REVERSE the
district court’s denial of Makaeff’s motion to strike Trump
University’s counterclaim pursuant to California’s anti-
SLAPP statute, and REMAND for further proceedings
consistent with this opinion.
REVERSED; REMANDED.
Chief Judge KOZINSKI, with whom Judge PAEZ joins,
concurring:
I join Judge Wardlaw’s fine opinion because it faithfully
applies our law, as announced in United States ex rel.
Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963,
973 (9th Cir. 1999), and its progeny. But I believe Newsham
is wrong and should be reconsidered.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938),
divided the law applicable to diversity cases into two broad
categories. Overruling Swift v. Tyson, 41 U.S. 1 (1842), it
held that state law, rather than federal common law, applies
to matters of substance. Erie, 304 U.S. at 78–79. But when
it comes to procedure, federal law governs. See Gasperini v.
Ctr. for Humanities, Inc., 518 U.S. 415, 427 & n.7 (1996); see
also Hanna v. Plumer, 380 U.S. 460, 473 (1965) (“Erie and
its offspring cast no doubt on the long-recognized power of
Congress to prescribe housekeeping rules for federal courts
. . . .”).
In most cases, it’s easy enough to tell whether a rule is
substantive or procedural. Whether a defendant is liable in
tort for a slip-and-fall, or has a Statute of Frauds defense to a
34 MAKAEFF V . TRUMP UNIVERSITY
contract claim, is controlled by state law. Just as clearly, the
time to answer a complaint, the manner in which process is
served, the methods and time limits for discovery, and
whether the jury must be unanimous are controlled by the
Federal Rules of Civil Procedure. The latter is true, even
though such procedural rules can affect outcomes and, hence,
substantive rights. See Hanna, 380 U.S. at 471.
But the distinction between substance and procedure is
not always clear-cut. While many rules are easily recognized
as falling on one side or the other of the substance/procedure
line, there are some close cases that call for a more nuanced
analysis. See, e.g., Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins. Co., 130 S. Ct. 1431, 1437 (2010); Gasperini,
518 U.S. at 428. In Walker v. Armco Steel Corp., 446 U.S.
740, 750–51 (1980), for example, the Supreme Court
considered the interplay between Federal Rule of Civil
Procedure 3 and Oklahoma’s statute of limitations. Rule 3
provided then, as it does now, that a civil action is
commenced on the date the complaint is filed. Id. at 750. In
Walker, that date was within the state statute of limitations
period. Id. at 742. Oklahoma law, however, provided that a
civil action began, for statute of limitations purposes, only
when the summons was served on the defendant. Id. at
742–43. If plaintiff filed the complaint at the end of the
limitation period, service would still be timely, so long as it
occurred no more than sixty days after the filing of the
complaint. Id. at 743.
Confronted with a state substantive rule (the statute of
limitations) and a federal procedural rule fixing the date when
a civil action commences, the Court held that there was no
conflict because the two rules dealt with different questions.
Id. at 750–51. The federal rule, the Court noted, set the date
MAKAEFF V . TRUMP UNIVERSITY 35
for the commencement of the action for the purpose of
measuring various time periods internal to the lawsuit. Id. at
751. The rule wasn’t meant to affect the time when the
statute of limitations was tolled by commencement of the
lawsuit. Id. at 751–53. The latter was a matter of state
substantive law. Because the federal procedural rule and the
state substantive rule could coexist peaceably within their
respective spheres, the Court concluded that each could be
given full effect: The state rule would perform the
backwards-looking function of determining whether the
action was brought within the statute of limitations, whereas
the federal rule would determine when the action began for
the forward-looking purpose of measuring time periods
applicable to the litigation. Id. at 750–53.
Significantly, Walker considered whether there was a
conflict between the state and federal rules only after it
determined that the state rule was substantive, because it
defined the period that a right created by state law could be
enforced. See id. at 746, 749–50. At the same time, a broad
reading of the federal procedural rule could impinge on the
substantive state law right by extending the statute of
limitations. This would have led to the “‘inequitable
administration’ of the law” by giving these plaintiffs greater
rights than they would have enjoyed in state court, “solely
because of the fortuity that there is diversity of citizenship
between the litigants.” Id. at 753 (quoting Hanna, 380 U.S.
at 468).
Most of Newsham’s analysis was devoted to showing that
there’s no “conflict” between California’s anti-SLAPP statute
and the Federal Rules of Civil Procedure and, therefore, the
two regimes can operate side-by-side in the same lawsuit.
But the question of a conflict only arises if the state rule is
36 MAKAEFF V . TRUMP UNIVERSITY
substantive; state procedural rules have no application in
federal court, no matter how little they interfere with the
Federal Rules. Newsham’s mistake was that it engaged in
conflict analysis without first determining whether the state
rule is, in fact, substantive.
It’s not. The anti-SLAPP statute creates no substantive
rights; it merely provides a procedural mechanism for
vindicating existing rights. The language of the statute is
procedural: Its mainspring is a “special motion to strike”; it
contains provisions limiting discovery; it provides for
sanctions for parties who bring a non-meritorious suit or
motion; the court’s ruling on the potential success of
plaintiff’s claim is not “admissible in evidence at any later
stage of the case”; and an order granting or denying the
special motion is immediately appealable. See Cal. Civ. Proc.
Code § 425.16. The statute deals only with the conduct of the
lawsuit; it creates no rights independent of existing litigation;
and its only purpose is the swift termination of certain
lawsuits the legislators believed to be unduly burdensome. It
is codified in the state code of civil procedure and the
California Supreme Court has characterized it as a
“procedural device to screen out meritless claims.” See
Kibler v. N. Inyo Cnty. Local Hosp. Dist., 138 P.3d 193, 198
(Cal. 2006).
Federal courts must ignore state rules of procedure
because it is Congress that has plenary authority over the
procedures employed in federal court, and this power cannot
be trenched upon by the states. See Erie, 304 U.S. at 78(“[T]he law to be applied in any [diversity] case is the law of
the State” except for “matters governed by the Federal
Constitution or acts of Congress . . . .” (emphasis added)); see
also 28 U.S.C. § 2072. To me, this is the beginning and the
MAKAEFF V . TRUMP UNIVERSITY 37
end of the analysis. Having determined that the state rule is
quintessentially procedural, I would conclude it has no
application in federal court.
But Newsham is wrong even on its own terms. Newsham
recognized a “commonality of purpose” between the state law
and Federal Rules of Civil Procedure 8, 12 and 56, but
shrugged it off because the parties could take advantage of
both the Federal Rules and the very similar anti-SLAPP
procedures. See 190 F.3d at 972–73. This vastly understates
the disruption when federal courts apply the California
anti-SLAPP statute.
The Federal Rules aren’t just a series of disconnected
procedural devices. Rather, the Rules provide an integrated
program of pre-trial, trial and post-trial procedures designed
to ensure “the just, speedy, and inexpensive determination of
every action and proceeding.” See Fed. R. Civ. P. 1.
Pre-discovery motions, discovery, summary adjudication and
trial follow a logical order and pace so that cases proceed
smartly towards final judgment or settlement.
The California anti-SLAPP statute cuts an ugly gash
through this orderly process. Designed to extricate certain
defendants from the spiderweb of litigation, it enables them
to test the factual sufficiency of a plaintiff’s case prior to any
discovery; it changes the standard for surviving summary
judgment by requiring a plaintiff to show a “reasonable
probability” that he will prevail, rather than merely a triable
issue of fact; it authorizes attorneys’ fees against a plaintiff
who loses the special motion by a standard far different from
that applicable under Federal Rule of Civil Procedure 11; and
it gives a defendant who loses the motion to strike the right to
an interlocutory appeal, in clear contravention of Supreme
38 MAKAEFF V . TRUMP UNIVERSITY
Court admonitions that such appeals are to be entertained
only very sparingly because they are so disruptive of the
litigation process. E.g., Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 868 (1994); Mohawk Indus., Inc.
v. Carpenter, 130 S. Ct. 599, 605 (2009).
We’ve already recognized that key aspects of this scheme
can’t possibly coexist with the Federal Rules of Civil
Procedure. The Federal Rules contemplate that the
sufficiency of a plaintiff’s case will be tested prior to
discovery only for legal sufficiency. See Fed. R. Civ. P. 12.
If a plaintiff’s case vaults that hurdle, the Federal Rules
provide for a period for discovery before defendant can test
plaintiff’s case for factual sufficiency. See Fed. R. Civ. P. 26,
29–37, 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 n.5 (1986). The Federal Rules don’t contemplate that a
defendant may get a case dismissed for factual insufficiency
while concealing evidence that supports plaintiff’s case. See
10B Charles Alan Wright, Arthur R. Miller et al., Federal
Practice & Procedure § 2740 (3d ed. 2012); see also Fed. R.
Civ. P. 56(d). The California anti-SLAPP statute allows for
precisely that.
That’s why we held in Metabolife International, Inc. v.
Wornick, 264 F.3d 832, 845 (9th Cir. 2001), that the
“discovery-limiting aspects” of the anti-SLAPP statute don’t
apply in federal court. See also Cal. Civ. Proc. Code
§ 425.16(f)–(g). The Federal Rules, after all, reflect a policy
of forcing a defendant to disclose adverse facts before he may
challenge plaintiff’s case for factual sufficiency. See John H.
Beisner, Discovering a Better Way: The Need for Effective
Civil Litigation Reform, 60 Duke L.J. 547, 554–59 (2010).
MAKAEFF V . TRUMP UNIVERSITY 39
In reaching this clearly correct conclusion, Metabolife
decimated the state scheme. The anti-SLAPP statute is
designed, first and foremost, to reduce the time and expense
certain defendants spend in court upon being sued. See
Wilcox v. Superior Court, 27 Cal. App. 4th 809, 823 (1994),
disapproved of on other grounds by Equilon Enters. v.
Consumer Cause, Inc., 52 P.3d 685, 694 n.5 (Cal. 2002). It
accomplishes this by requiring plaintiff to show that there’s
a “reasonable probability” he’ll prevail on his claim before
subjecting the defendant to the cost, delay and vexation of
discovery. See Metabolife, 264 F.3d at 840. Metabolife
crippled the anti-SLAPP statute by forcing defendants sued
in federal court to suffer the slings and arrows of outrageous
discovery, pushing back by months or years the time when
they can free themselves from litigation. And, of course,
giving a plaintiff discovery makes it much more likely that
he’ll meet the “reasonable probability” of success standard
than his counterpart in state court, who must make that
showing without first examining defendant’s records or
deposing defendant’s witnesses.
After Metabolife, the federal court special motion is a far
different (and tamer) animal than its state-court cousin.
Metabolife diminished some of the tension between the state
and federal schemes, but at the expense of depriving the state
scheme of its key feature: giving defendants a quick and
painless exit from the litigation. What we’re left with after
Metabolife is a hybrid procedure where neither the Federal
Rules nor the state anti-SLAPP statute operate as designed.
From the federal perspective, Metabolife left in place
quite a bit of disruption: the burden on the plaintiffs to show
that they have not merely a triable issue of fact, but a
reasonable probability of success; enhanced sanctions for
40 MAKAEFF V . TRUMP UNIVERSITY
bringing a weak claim; and the cost, disruption and delay
inherent in a right to interlocutory appeal—created by state
law, rather than by Congress. I find it passing strange that
state legislatures have now displaced Congress as the
delimiters of our jurisdiction. See Batzel v. Smith, 333 F.3d
1018, 1024–26 (9th Cir. 2003) (we must allow immediate
appeal because of text and legislative history of California’s
anti-SLAPP statute).
Newsham was a big mistake. Two other circuits have
foolishly followed it. See Godin v. Schencks, 629 F.3d 79,
81, 85–91 (1st Cir. 2010); Henry v. Lake Charles Am. Press,
L.L.C., 566 F.3d 164, 168–69 (5th Cir. 2009). I’ve read their
opinions and find them no more persuasive than Newsham
itself. It’s time we led the way back out of the wilderness.
Federal courts have no business applying exotic state
procedural rules which, of necessity, disrupt the
comprehensive scheme embodied in the Federal Rules, our
jurisdictional statutes and Supreme Court interpretations
thereof. As a three-judge panel, Metabolife could only do so
much, and we are generally bound to follow Newsham. But
if this or another case were taken en banc, we could take a
fresh look at the question. I believe we should.
Judge PAEZ, with whom Chief Judge KOZINSKI joins,
concurring:
I concur fully in Judge Wardlaw’s fine opinion. I also join
Chief Judge Kozinski’s concurrence because I, too, believe
that United States ex rel. Newsham v. Lockheed Missiles &
Space Co., 190 F.3d 963 (9th Cir. 1999), is wrong and should
be reconsidered. I agree that California’s anti-SLAPP statute
MAKAEFF V . TRUMP UNIVERSITY 41
is “quintessentially procedural,” and its application in federal
court has created a hybrid mess that now resembles neither
the Federal Rules nor the original state statute.
Yet another reason to reconsider the application of state
anti-SLAPP statutes in federal court is that there are
significant state-by-state variations within the circuit, despite
facial similarities and identical procedural purposes of each
state’s anti-SLAPP statute. Newsham’s holding—although
considering only California’s anti-SLAPP statute—has been
extended to Oregon’s anti-SLAPP statute and, arguably, sub
silentio to Nevada’s as well. See Metabolic Research, Inc. v.
Ferrell, 693 F.3d 795, 798–800, 798 n.4 (9th Cir. 2012)
(holding that the denial of a motion to strike under Nevada’s
anti-SLAPP statute is not an appealable collateral order but
not deciding whether “the Nevada anti-SLAPP statute is
available to litigants proceeding in federal court”); Gardner
v. Martino, 563 F.3d 981, 991 (9th Cir. 2009) (holding that
Oregon’s anti-SLAPP statute, which requires entry of a
judgment of dismissal without prejudice, is applicable in
federal court because it “does not directly conflict with the
Federal Rules and Oregon’s civil procedure rules”); see also
Englert v. MacDonell, 551 F.3d 1099, 1102 (9th Cir. 2009)
(dismissing for lack of jurisdiction an appeal from the denial
of an Oregon defendant’s special motion to strike because the
motion functions like a denial of a motion for summary
judgment without deciding whether the Oregon statute would
conflict with Federal Rule of Civil Procedure 56(c)),
superseded by statute, Act of June 23, 2009, ch. 449, § 1,
2009 Or. Laws 1194, 1194 (codified at Or. Rev. Stat.
§ 31.150(1)), see also id. § 3, 2009 Or. Laws at 1195
(codified at Or. Stat. § 31.152(4)) (stating that the purpose of
the revised anti-SLAPP statute is “to provide a defendant
42 MAKAEFF V . TRUMP UNIVERSITY
with the right not to proceed to trial in cases in which the
plaintiff does not meet the burden specified” by the statute).
These differences play out in the availability of an appeal
under the collateral order doctrine. See DC Comics v. Pac.
Pictures Corp., 706 F.3d 1009, 1016 (9th Cir. 2013). DC
Comics recognized that Nevada’s statute and Oregon’s pre-
2010 statute “were more akin to defenses against liability
than immunities from suit, in that they did not provide for any
consistent right of immediate appeal from the denial of an
anti-SLAPP motion.” Id. It is not the mere availability of
immediate state appeal provided in the statute that creates the
right to appeal under the federal collateral order doctrine, but
rather that when “a legislature provide[s] an appeal unique to
its anti-SLAPP statute . . . it could be inferred that its purpose
was to confer immunity from suit—an immunity which can
only be vindicated by permitting an interlocutory appeal.”
Englert, 551 F.3d at 1107 (discussing the holding in Batzel v.
Smith, 333 F.3d 1018, 1025 (9th Cir. 2003) that California’s
immediate appeal provision and the statute’s legislative
history were instructive in “demonstrat[ing] that California
lawmakers wanted to protect speakers from the trial itself
rather than merely from liability”). That different state
procedures are already interpreted by our case law to create
ultimately different federal procedural outcomes—such as the
availability of appeal under the collateral order doctrine—is
further evidence that it makes no sense to treat state anti-
SLAPP statutes as substantive state law under Erie.