Business Law Journal

On September 2, 2020, the Ninth Circuit Court of Appeals ruled in Frlekin v. Apple, Inc. (Case No. 15-17382) that Apple must compensate a certified class of California non-exempt employees for time spent waiting for, and submitting to, bag searches required by Apple’s policies. 

This decision underscores the need for employers to be vigilant in ensuring compliance with California’s complex framework of wage and hour laws, and, perhaps more importantly, the importance of minimizing class action exposure through carefully-drafted arbitration agreements.

Several recent decisions have addressed the applicability of California Code of Civil Procedure § 425.16, known colloquially as the “anti-SLAPP” law, which provides a procedure by which a defendant can secure the early dismissal of lawsuits that are filed primarily to discourage the free exercise of speech and petition rights.  Under the anti-SLAPP law, defendants are permitted to file a special motion to strike claims “arising from any act…in furtherance of that person’s right of petition or free speech.” 

The California Supreme Court recently issued the latest in a series of decisions concerning the applicability of Code of Civil Procedure § 425.16 (the “anti-SLAPP law”), which was designed to enable early dismissal of lawsuits that are filed primarily to discourage the free exercise of speech and petition rights. 

In FilmOn.com v. DoubleVerify, Inc. (2019), Case No. S244157, the California Supreme Court recently clarified the circumstances under which the state’s anti-SLAPP law applies to commercial speech and services.  The anti-SLAPP law, Code of Civil Procedure § 425.16, was designed by the Legislature to provide for early dismissal of strategic lawsuits against public participation (known colloquially as “SLAPP” suits), which are filed primarily to discourage the free exercise of speech and petition rights.  A defendant prevailing under the anti-SLAPP law is entitled to recover its attorneys’ fees from the plaintiff.  The Supreme Court was called upon to interpret the anti-SLAPP law’s “catchall” provision, which provides for dismissal of claims arising from “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.”  Applying this provision, the Supreme Court held that DoubleVerify, Inc.’s (“DoubleVerify”) confidential reports about FilmOn.com’s (“FilmOn”) web content — which were generated for profit, delivered only to paying clients, and subject to a confidentiality requirement prohibiting broader dissemination of the reports — were not entitled to protection under the anti-SLAPP law.