On June 30, 2016 there was a hearing about the anti-SLAPP motion. (Lawsuits brought to scare, harass and intimidate defendants or restraint of business is called SLAPP. The motions filed by the defendants against such cases are called anti-SLAPP.) In order to succeed in their anti-SLAPP motion defendants will need to prove that the statements they made (and mentioned in the complaint) are protected under the right of free speech in connection with an issue of public interest.
Unexpectedly the newly assigned judge to the case refused to issue a formal ruling on the anti-SLAPP motions. As a first step parties have agreed to determine whether the statements in question (Sony Statement, Weitzman statement, album back cover, album video statement, Cascio’s at Oprah) were commercial speech or not. Judge refused to do such determination. Judge also mentioned that even she considered the anti-SLAPP motion, she would be inclined to deny it as the statements could be potentially misleading for reasonable consumers.
At this time, this is a huge win for the plaintiff MJ Fan. The judge told the parties to move on and start the class certification. This means the case survived the first dismissal attempt and the case will move forward with class discovery.
However most probably defendants (Sony, MJ Estate, Cascio, Porte) aren’t happy with judge’s refusal to issue a formal ruling on the anti-SLAPP motions. Zia Modabber said during the hearing “Whether or not these are Michael Jackson’s vocals is irrelevant. If it is noncommercial speech, we win, it’s over.” If statements in question are noncommercial speech, they would be protected by constitutional right under freedom of speech. Defendants also mentioned that a class discovery and certification before determining if the statements are commercial or not would be wasteful.
So what’s next? It would depend on the actions of the defendants. Will they do what the judge said and continue to the next step in a class action lawsuit? Or given they didn’t get a formal ruling in their anti-SLAPP motions would they pursue to get a ruling on that matter? Given a favorable ruling can end this case for the defendants, it’s quite likely that they may appeal this decision. In a few months’ time we will have a better idea about how this case will proceed.