FORSYTH v MPAA: PLAINTIFF’S [PROPOSED] POSTHEARING BRIEF, Nov 3, 2016

November 3, 2016 5:26 pm by Gene Borio

The PDF is Here

EXCERPT:

I. WHAT ARE THE MISREPRESENTATIONS?

There are two: (a) in the context of defendants’ rating system, a rating of less than “R” represents that a film is appropriate for children under 17 without a parent, when in fact films with smoking are not, and (b) under the law, a statement that a film “may” not be appropriate for children is a misrepresentation when it is known that it is not appropriate.

. . .

If the speech qualifies as speech in furtherance of an issue of “public interest” under 425.16 (e)(3) and (4), then defendants satisfy the first prong of the analysis. If the speech does not qualify as speech in furtherance of an issue of “public interest” under 425.16 (e)(3) and (4), defendants fail to satisfy the first prong of the analysis. For the reasons stated in the Response at 9-16, the ratings are quintessentially commercial speech – the type of speech that has repeatedly been held not to qualify as speech in furtherance of an issue of “public interest” under 425.16(e)(3) and (4).

END EXCERPT

FULL TEXT:

Case 3:16-cv-00935-RS Document 56 Filed 11/03/16 Page 1 of 3

JEFFREY F. KELLER (SBN 148005) JOHN G. JACOBS (PRO HAC VICE)

jfkeller@kellergrover.com jgjacobs@jacobskolton.com

SARAH R. HOLLOWAY (SBN 254134) BRYAN G. KOLTON (PRO HAC VICE)

sholloway@kellergrover.co… bgkolton@jacobskolton.com

KELLER GROVER, LLP JACOBS KOLTON, CHTD.

1965 Market Street 55 West Monroe Street, Suite 2970

San Francisco, California 94103 Chicago, Illinois 60603

Tel: (415) 543-1305 /Fax: (415) 543-7861 Tel: (312) 427-4000 /Fax: (312) 268-2425

DAVID SCHACHMAN (PRO HAC VICE)

ds@schachmanlaw.com

LAW OFFICES OF DAVID SCHACHMAN, P.C.

55 West Monroe Street, Suite 2970Chicago, Illinois 60603Tel: (312) 427-9500 /Fax: (312) 268-2425

Attorneys for Plaintiff and the Putative Class

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TIMOTHY FORSYTH, individually and on behalf of a class of similarly situated individuals,

Plaintiff,

vs.

MOTION PICTURE ASSOCIATION OF AMERICA, INC., et al.,

Defendants.

Case No. 3:16-cv-00935-RS

PLAINTIFF’S [PROPOSED] POSTHEARING BRIEF

Hearing Held: October 28, 2016Time: 1:30 pmPlace: Courtroom 3, 17th Floor

Judge: Hon. Richard Seeborg

Plaintiff’s [Proposed] Post-Hearing Brief 16-CV-00935-RS

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I. WHAT ARE THE MISREPRESENTATIONS?

There are two: (a) in the context of defendants’ rating system, a rating of less than “R” represents that a film is appropriate for children under 17 without a parent, when in fact films with smoking are not, and (b) under the law, a statement that a film “may” not be appropriate for children is a misrepresentation when it is known that it is not appropriate.

To the first point, a film rating does not exist in a vacuum, but, rather, in the context of defendants’ entire rating system, and in the context of that system, rating symbols PG and PG-13 are representations that the content of the film is appropriate for viewing by children under 17 without a parent. Complaint, Paragraphs 4, 67, 68, 72, 73, 86, 87, 92 and 93.

If there is any content that defendants determine is not appropriate for children under 17 without a parent, defendants rate the film R and prohibit children under 17 without a parent from purchasing a ticket or admission to the theatre. Complaint, Paragraphs 4, 67, 68, 72, 73, 86, 87, 92 and 93. These and other allegations about the rating system are confirmed by Jack Valenti’s articles describing the rating system that defendants submitted as part of their Reply brief. Supplemental RJN, 49-14, pages 8-10.

If the film is rated PG or PG-13 (and not R) defendants have made a “binary.” “thumbs-up thumbs-down,” “pass-fail” determination –and a representation to parents and children –that there is nothing in the film that is inappropriate for children under 17 without a parent, even though defendants know that there is content in the film that will kill children by the hundreds of thousands. And defendants market and promote the film to the much larger, profitable youth market for purpose of making more money, despite knowing that the scientific evidence establishes that the youth ratings they are assigning will kill one million children. Complaint, Paragraphs 72, 73, 87, 92, 93, 102, 103 and 104.1 That is the first misrepresentation.

1 See also, Mr. Valenti’s article describing the “Dual Responsibilities” of the rating system where he states: “Under the rating program, the filmmaker became free to tell his story in his way without anyone thwarting him. The price he would pay for that freedom would be the possible restriction on viewing by children. ***. … parents can be confident their children are restricted in viewing certain films. No other entertainment communications medium turns away business at the box office to fulfill its pledge to the public.” Defs’ Supplemental RJN, 49-14, pages 4-5.

Plaintiff’s [Proposed] Post-Hearing Brief 1 16-CV-00935-RS

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The second misrepresentation involves the rating symbols “PG–Some material may not be suitable for children” and “PG-13 Some material may be inappropriate for children under 13.” The words of the additional so-called “cautions” or “warnings” are false and misleading. Defendants know that the Surgeon General has concluded based upon all of the scientific evidence that allowing children under 17 to view films with tobacco imagery causes kids to smoke, become addicted to nicotine and kills children by the hundreds of thousands. Saying that some material “may” not be suitable when defendants know that some material is not suitable – that it will kill kids by the hundreds of thousands – is false and misleading. E.g., Gutierrez v. Wells Fargo Bank, N.A., 730 F. Supp. 2d 1080, 1118–19 (N.D. Cal. 2010), aff’d in part, rev’d in part and remanded sub nom. Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712 (9th Cir. 2012).

II. NO STOPPING POINT – SLIPPERY SLOPE

In 2012 the Surgeon General concluded that the scientific evidence established that exposure of children to tobacco imagery in films causes children to smoke. In 2014, the CDC concluded based upon the scientific evidence that if defendants continued to assign the PG and PG-13 ratings to films with tobacco imagery the youth ratings would cause 3.2 million children to become addicted to nicotine and one million of those children would die prematurely from tobacco related diseases. Complaint, Paragraphs 5, 48, 49, 50 and 51. These facts are admitted for purposes of evaluating defendants’ Motion.

The only movie content that has ever been scientifically proven to kill kids by the hundreds of thousands is tobacco imagery. If additional scientific research and evidence does ever become sufficient to prove that exposing children to imagery in movies of bullying or violence or under-age drinking causes kids to engage in increased bullying, violence or under-age drinking then defendants should also be held liable if they rate such content with the PG and PG-13 ratings (under defendants existing rating system). But concern about possible future cases should not prevent doing the right thing in this case when we know what we know now.

Plaintiff’s [Proposed] Post-Hearing Brief 2 16-CV-00935-RS

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III. SECTION 425.17 – EXCEPTION TO EXCEPTION

Defendants raised, for the first time in their Reply Brief (at11), the application of Section
425.17 (d), asserting that the statutory exceptions to the statutory exemptions for commercial speech and class actions, created greater protection for defendants’ speech about movies than for speech relating to “ordinary” commercial products. At the hearing, defendants argued that this was supported by their supplemental authority Anthony v. Buena Vista Home Entertainment, Inc., No. 2:15-cv-09593-SVW-JPR (C.D. Cal. Sept. 28, 2016) submitted after the briefing.

Section 425.17 (d) does not create greater anti-SLAPP protection for speech about movies than is provided by 425.16. As Dyer v. Childress, 147 Cal. App. 4th 1273 (2007) stated, the 425.17 (d) exceptions (for speech about movies and newspapers) to the class action and commercial speech exemptions (425.17 (b) and (c)) to the anti-SLAPP provisions of 425.16, do not create additional rights or protections for speech about movies or newspapers. Section 425.17 (d) merely restores the status quo ante that existed before the General Assembly enacted 425.17 (b) and (c) -the class action and commercial speech exemptions to the anti-SLAPP provisions of 425.16. As a result, speech about movies or newspapers must be analyzed under 425.16 (e)(3) and (4), as if 425.17 (b) and (c) and 425.17 (d) had never been passed.

Defendants’ Motion was brought solely under 425.16(e)(3) and (4), not under Section 425.17. Under 425.16 (e)(3) and (4), the analysis of defendants’ speech depends upon whether the speech is in furtherance of an issue of “public interest” as that term of art has been defined by the anti-SLAPP law. As demonstrated in plaintiff’s Response (at 9-16), the ratings are not speech in furtherance of an issue of “public interest” as defined by Section 425.16(e)(3) and (4). If this case involved ratings of lead paint or diet supplements, or if the claim was against the actual seller of the product (not the trade association acting on behalf of the sellers), plaintiff would have been able to rely upon the class action and commercial speech exemptions under 425.17 (b) and (c). If plaintiff had relied upon those exemptions and the Court ruled in plaintiff’s favor, defendants would not have had the right to appeal or obtain attorneys fees. 425.17 (b), (c) and (e). However, since the claims here target speech about movies, and are against the trade Plaintiff’s [Proposed] Post-Hearing Brief 3 16-CV-00935-RS

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association (acting on behalf of the sellers), plaintiff cannot rely upon 425.17 (b) and (c) and, instead, defendant must establish that the speech is speech in furtherance of an issue of “public interest” under 425.16 (e)(3) or (4). Since defendants’ motion was brought only under 425.16(e)(3) and (4), and plaintiff cannot rely upon 425.17 (b) and (c), defendants have the right to attorneys’ fees in the event the trial court rules in their favor, or in the event the trial court rules against them, they have the right to appeal and the right to obtain attorneys’ fees if the 9th Circuit rules in their favor.2

Anthony was a case targeting both protected non-commercial speech and non-protected commercial speech. As a result, the Court correctly held that the defendants satisfied the first prong of the anti-SLAPP analysis. Anthony, CalPERS and Dupont are all cases that involved claims targeting both protected and unprotected speech. Here, however, the only speech that is targeted is non-protected commercial speech and this case is, therefore, like All One God Faith (and the other commercial speech cases cited in the Response at 11-15). The discussion in Anthony that commercial speech about movies is entitled to greater protection than speech about “ordinary” commercial products is dicta and contrary to California law and any sound reasoning. Rezak v Sony directly and explicitly rejected the argument that commercial speech about movies is entitled to greater protection than commercial speech about “ordinary” commercial products.3

If the speech qualifies as speech in furtherance of an issue of “public interest” under 425.16 (e)(3) and (4), then defendants satisfy the first prong of the analysis. If the speech does not qualify as speech in furtherance of an issue of “public interest” under 425.16 (e)(3) and (4), defendants fail to satisfy the first prong of the analysis. For the reasons stated in the Response at 9-16, the

2 The commercial speech exemption under 425.17 (c) is not perfectly co-extensive with the commercial speech case law under 425.16 (e)(3) and (4) as to whether speech is in furtherance of an issue of “public interest” under the anti-SLAPP law. As the court discussed at length in All One God Faith, the commercial speech exemption in 425.17 (c) does not apply to a trade association acting on behalf of the actual sellers of the product, but the trade associations’ certification trademark is commercial speech and, therefore, is not speech in furtherance of an issue of “public interest” as that term is defined by the cases applying 425.16(e) (3) and (4).

3 Rezak was not cited or discussed in Anthony, neither by the parties in their briefing, nor by the Court in its opinion.

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ratings are quintessentially commercial speech – the type of speech that has repeatedly been held not to qualify as speech in furtherance of an issue of “public interest” under 425.16(e)(3) and (4).

Dated: November 3, 2016

Respectfully submitted,

By: /s/ David Schachman

David Schachman

John G. Jacobs

Bryan G. Kolton

Attorneys For Plaintiff Timothy ForsythAnd the Putative Class

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CERTIFICATE OF SERVICE

I, David Schachman, an attorney in this matter, certify that on November 3, 2016, I served the foregoing Motion For Leave To File Plaintiff’s [Proposed] Post Hearing Brief by causing true and accurate copies of such paper to be filed and transmitted to the persons registered to receive such notice via the Court’s CM/ECF electronic filing system.

/s/ David Schachman

Plaintiff’s [Proposed] Post-Hearing Brief 6 16-CV-00935-RS

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