Supreme Court grants review in attorney advertising case: Simpson Strong-Tie Co. v. Gore

On July 30, 2008, the Supreme Court granted review in Simpson Strong-Tie Co. v. Gore, no. S164174. These are the issues on review:

(1) Which party bears the burden of persuasion with respect to the applicability of the anti-SLAPP exemptions set forth in Code of Civil Procedure section 425.17, subdivision (c)? (2) Does Code of Civil Procedure section 425.17, subdivision (c), exempt from anti-SLAPP protection an advertisement by a lawyer soliciting clients for a contemplated lawsuit?

This case may be particularly interesting to class action attorneys because the contemplated lawsuit was a class action (although it was never filed). An attorney placed an ad in the San Jose Mercury News and the Los Gatos Weekly Times seeking potential clients who had purchased the prospective defendant's galvanized screws. The ad said that "you may have certain legal rights and be entitled to monetary compensation ...." The prospective defendant sued for defamation, UCL violations, and other claims, arguing that the ad "communicates that [the] galvanized screws are defective." The trial court dismissed the action under the anti-SLAPP law, and the Court of Appeal (Sixth Appellate District) affirmed. Sampson v. Strong-Tie Co. v. Gore, 162 Cal.App.4th 737 (Apr. 30, 2008).

It can often happen that an attorney becomes aware of a violation of law -- such as a material nondisclosure, a latent defect, a price-fixing conspiracy -- that the product purchasers would have had no reason to suspect because it was concealed from them. Nor would the product purchasers necessarily know that they might have a valid legal claim. What is an attorney to do? Placing an ad in a newspaper might be an extreme measure, but this case illustrates a situation that arises more often than you might think.

I've added Simpson Strong-Tie Co. v. Gore to my list of pending Supreme Court cases of interest to class action and UCL practitioners.