In Brain Research Labs, LLC, et al. v. Thomas Howard Clarke, et al., 2012 Cal.App.Unpub. LEXIS 511, Court of Appeal California, First Appellate District, Division Three, No. A127544 (January 26, 2012), San Francisco Superior Court Case No. CGC-09-491932 (Petition for review filed with the California Supreme Court on March 5, 2012 Case No. S200599), an unpublished opinion, the California Court of Appeal held that an attorney who posted a YouTube video soliciting potential class action members cannot use California's anti-SLAPP law to ward off a defamation suit.  The attorney, Thomas Clarke, posted the YouTube video after filing a class action against Brain Research Labs, LLC (“BRL”) alleging, in part, that the company had made false and misleading statements about one of its herbal supplements and marketed the allegedly dangerous supplement in violation of state and federal regulations.  Although the YouTube video was intended to solicit clients to join the class action suit against BRL, the lawyer also spoke more generally, condemning both the herbal supplement industry as a whole and BRL in particular for making various false claims about their products, which he claimed often cause injury and even death.

BRL sued Clarke and his law firm for defamation.  They responded with an anti-SLAPP motion arguing that BRL could not prevail as a matter of law because Clark’s statements were protected by the litigation, common interest, and fair report privileges.  The trial court denied the motion, reasoning that Clarke’s allegedly defamatory YouTube comments against BRL amounted to an advertisement and, thus, fell short of being protected.  Clarke appealed. 

On appeal, the primary issue was whether Clarke was entitled to protection pursuant to California’s litigation privilege (codified as Civil Code section 47(b)).  The litigation privilege generally protects statements made in the course of litigation from being the basis for later derivative lawsuits, such as claims for libel or slander, as well as other tort claims.  Because the statements in the YouTube video were intended to solicit clients for a class action lawsuit, Clarke argued, he should be entitled to protection from the litigation privilege.

The First District disagreed.  The court distinguished prior case law holding that the solicitation of clients is protected by the litigation privilege (see Rubin v. Green, 4 Cal.4th 1187 (1993)), finding that the privilege did not apply in this case, in part, because of Clarke's use of the Internet.  The court reasoned, "[t]he manner in which Clarke disseminated [his call for plaintiffs], i.e., by making it available to the general public on the Internet, provides additional support, in accord with California case law, for [finding the litigation privilege does not apply]."  The court pointed out that in the Rubin case, the attorneys directly solicited potential clients who had a known connection to the potential litigation, but in BRL, “... the YouTube video is potentially available to every English speaking individual in the world with an Internet connection."  Thus, because the video could potentially reach a practically limitless number of people through the Internet, most of whom are not potential plaintiffs in the class action against BRL, the communication could not be characterized as the kind of narrowly-tailored client solicitation to which courts have previously applied the privilege.

In the wake of this decision, attorneys should be aware of the risks involved in using social media to solicit clients.  Despite the long-held privilege protecting attorney solicitation of clients, attorneys can no longer be certain that such solicitations will be protected if communicated via YouTube, or some other form of social media.