Filing A Lawsuit In A Foreign Country: Protected Conduct Under The Anti-SLAPP Statute?

This is a brand new case (filed yesterday) by the California Court of Appeal, Second District, located in Los Angeles. Guessous v. Chrome Hearts, LLC (2009) WL 4263833.

The plaintiffs are Mohammed Amal Guessous ("Guessous") and Five Bis.  Guessous is a U.S. citizen and resident of Los Angeles. He has an ownership interest in Five Bis, a French limited liability company. Five Bis sells clothing, jewelry and leather products.

The defendant is Chrome Hearts, LLC, ("Chrome") an American luxury brand that sells apparel, clothing, jewelry, and accessories.

Chrome sued Guessous (and others) in U.S District Court for trademark and copyright infringement in two separate actions in 1996 and 1998.

The parties entered into a settlement agreement in 1999, whereby it appeared Chrome agreed not to sue Guessous for trademark infringement, trade dress, unfair competition, e.g., etc., ever again, except for claims related to Guessous’ alleged use of the Chrome Hearts’ mark.

Chrome sued FiveBis in 2007 in the Paris Court of First Instance for trade mark infringement and sought to enjoin FiveBis use of the Chrome Heart marks. FiveBis claimed the settlement agreement prevented Chrome from filing the lawsuit. The court disagreed and FiveBis appealed that decision to the Paris Court of Appeals. The parisian appellate court affirmed the decision of the lower court.

Chrome then filed another action for trademark infringement in December of 2007.

Guessous subsequently filed an action in the Los Angeles Superior Court for breach of contract and declaratory relief. He claimed the settlement agreement prevented Chrome from suing in France. Chrome filed an anti-SLAPP motion. The trial court ruled that the action did meet the first prong of the anti-SLAPP statute, but that plaintiffs had established a probability of prevailing on the merits. Therefore, the motion was denied.

Chrome appealed the decision and plaintiffs cross-appealed.

The central issue before the California Court of Appeal was whether the filing of a lawsuit in a foreign country constituted protected conduct under the first prong of the anti-SLAPP statute.  It decided in the negative.

The basis of its decision was two-fold:

  1. that a plain reading of the statute limits the "petitioning or free speech activity to that made pursuant to rights granted by the United States or California Constitution, and neither Constitution grants a United States citizen the right to petition a foreign government,"; and
  2. a review of the legislative history supports this conclusion.

Consequently, the order denying the motion to strike was affirmed and plaintiffs are to recover their costs on appeal.

This decision is pretty clear: Filing a lawsuit in a foreign jurisdiction does not constitute petitioning activity or free speech under the California anti-SLAPP statute.

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