FORSYTH v MPAA: DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE POST-HEARING BRIEF, Nov 7, 2016

November 8, 2016 6:53 pm by Gene Borio

The PDF is Here

EXCERPT:

The sole justification Plaintiff offers for his post-hearing brief is counsel’s opinion that he could have done a better job articulating his arguments at the hearing. That is not a valid justification. If it were, there would be no end to the briefs parties would submit. Defendants respectfully request that the Court deny Plaintiff’s request under Local Rule 7-3.

END EXCERPT

FULL TEXT:

Case 3:16-cv-00935-RS Document 58 Filed 11/07/16 Page 1 of 4

GLENN D. POMERANTZ (SBN 112503)

glenn.pomerantz@mto.com

MUNGER, TOLLES & OLSON LLP

355 South Grand Avenue, Thirty-Fifth FloorLos Angeles, California 90071-1560Telephone: (213) 683-9100

Facsimile: (213) 687-3702

KELLY M. KLAUS (SBN 161091)

kelly.klaus@mto.com

ACHYUT J. PHADKE (SBN 261567)

achyut.phadke@mto.com

ADAM I. KAPLAN (SBN 268182)

adam.kaplan@mto.com

MUNGER, TOLLES & OLSON LLP

560 Mission Street, Twenty-Seventh Floor

San Francisco, California 94105-2907

Telephone: (415) 512-4000

Facsimile: (415) 512-4077

Attorneys for Defendants Motion Picture

Association of America, Inc., Walt DisneyStudios Motion Pictures, Paramount Pictures

Corporation, Sony Pictures Entertainment Inc.,

Twentieth Century Fox Film Corporation,

Universal City Studios LLC, and Warner Bros.

Entertainment Inc.

K. LEE MARSHALL (SBN 277092)

klmarshall@bryancave.com

ROGER MYERS (SBN 146164)

roger.myers@bryancave.com

ALEXANDRA WHITWORTH, (SBN 303046)

alex.whitworth@bryancave…. CAVE LLP

560 Mission Street, Suite 2500

San Francisco, California 94105

Tel: (415) 675-3400 /Fax: (415) 675-3434

Attorneys for Defendant National Association

of Theatre Owners

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

DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO FILE POST-HEARING BRIEF

Hearing Held: October 27, 2016Time: 1:30 pm Place: Courtroom 3, 17th Floor Judge: Hon. Richard Seeborg

3:16-cv-00935-RS

DEFS.’ OPP. TO PL.’S MOT. FOR LEAVE TO FILE POST-HEARING BRIEF

Case 3:16-cv-00935-RS Document 58 Filed 11/07/16 Page 2 of 4

Plaintiff has not established good cause to submit a sur-reply brief after oral argument on Defendants’ anti-SLAPP/Rule 12(b)(6) motion. Plaintiff’s proposed brief does not cite any change in applicable law or factual development to justify a new, post-hearing brief. Plaintiff’s counsel argued in his Opposition and at the hearing what Plaintiff alleges to be the misrepresentations in this case; why Plaintiff believes allowing his Complaint to proceed will not invite further lawsuits seeking to have CARA express different opinions based on motion picture content; and why Plaintiff contends the anti-SLAPP statute does not apply. The sole justification Plaintiff offers for his post-hearing brief is counsel’s opinion that he could have done a better job articulating his arguments at the hearing. That is not a valid justification. If it were, there would be no end to the briefs parties would submit. Defendants respectfully request that the Court deny Plaintiff’s request under Local Rule 7-3.

If the Court is inclined to consider Plaintiff’s arguments, we submit they are meritless and confirm once again the futility of any amendment.

I. CARA’s Alleged Misrepresentations

Plaintiff now argues that, “in the context of defendants’ entire rating system,” any below-R rating represents that the movie is appropriate for minors to view without a parent or guardian. Proposed Br. 1 (emphasis in original). This argument retreats from Plaintiff’s Opposition, which insisted that his claims were exclusively “based on” the ratings as certification trademarks, which itself was a retreat from the theory in the complaint. See Opp. 7-8; Reply 2-3. Plaintiff fails to allege a misrepresentation under any theory. If Plaintiff bases his claim on the “entire rating system,” there is no misrepresentation because CARA has been clear that (a) its ratings do not represent that any movie rated below R will be appropriate for viewing by unaccompanied minors and (b) CARA will not apply the mandatory R rule Plaintiff seeks. If Plaintiff bases his claim solely on the marks, there is no misrepresentation because the ratings expressly say some material “may be inappropriate” for minors. See, e.g., Supp. RJN Ex. 6 (Dkt. 49).

Plaintiff alternatively argues that CARA’s statement in PG and PG-13 ratings that some content “may be inappropriate” for unaccompanied minors is false because Plaintiff alleges that it “is” inappropriate for minors to see a movie with any tobacco imagery. At most, Plaintiff now

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DEFS.’ OPP. TO PL.’S MOT. FOR LEAVE TO FILE POST-HEARING BRIEF

Case 3:16-cv-00935-RS Document 58 Filed 11/07/16 Page 3 of 4

attempts to allege a vague misrepresentation by inference, which is not permissible for Plaintiff’s negligent misrepresentation claim. Mot. 14-15; Reply 15. The theory cannot support an intentional misrepresentation claim because CARA has expressly disclaimed a duty to assign R ratings to all movies with tobacco imagery. Mot. 15-18, 20; Reply 17-21.

II. The “Slippery Slope”

Plaintiff again argues that, because he alleges scientific evidence supports his claim, his complaint is distinct from others that will follow alleging that certain content necessarily warrants an R rating. Of course, those future plaintiffs will also allege they have scientific studies to back up their claims. At the hearing, Plaintiff argued that Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011), demonstrates that litigation will determine whether the underlying studies have merit. That argument overlooks the fact that it takes years and requires significant resources to litigate scientific contentions—precisely the chill the First Amendment condemns and the anti-SLAPP statute is intended to obviate. Mot. 7-8, 13 n.9; NATO’s Supp. Br. 1-3; Reply 14-15.

III. Section 425.17(d)

Plaintiff’s “exception to exception” theory makes no more sense now than it did at the hearing. It rests on the false premise that any use of a registered mark—here, a rating on a movie—is per se commercial speech. The use of a mark actually constitutes “expressive speech” where, as here, it conveys an expressive message. San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 535-36 (1987); In re Tam, 808 F.3d 1321, 1338-39 (Fed. Cir.
2015), cert. granted, 2016 WL 1587871 (U.S. Sept. 29, 2016). And it rests on a case, Rezec v. Sony Pictures Entm’t, 116 Cal. App. 4th 135 (2004), that does not help Plaintiff. The complaint in Rezec was filed in 2001, the trial court struck it in 2002, and the case was briefed and argued on appeal in 2003, all before Civil Procedure Code § 425.17 became law in 2004. The fact that Rezec does not mention § 425.17(c) is therefore not surprising.1

1 See also Stewart v. Rolling Stone LLC, 181 Cal. App. 4th 664, 678 (2010) (“Plaintiffs have not provided us with any authority for the proposition that commercial speech [not exempted by § 425.17(c)] is categorically disentitled to protection under the anti-SLAPP statute.”).

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DEFS.’ OPP. TO PL.’S MOT. FOR LEAVE TO FILE POST-HEARING BRIEF

Case 3:16-cv-00935-RS Document 58 Filed 11/07/16 Page 4 of 4

Rezec also did not address two key aspects of the anti-SLAPP analysis that further undermine Plaintiff’s argument. First, “the status quo ante” that § 425.17(d) “restore[d],” Proposed Br. 3, treated advertising as “noncommercial if it advertises an activity itself protected by the First Amendment.” Page v. Something Weird Video, 960 F. Supp. 1438, 1443 (C.D. Cal.
1996) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 67 n.14 (1983) (“‘a different conclusion may be appropriate in a case where the pamphlet advertises an activity itself protected by the First Amendment.’”)). Second, even if ratings are commercial speech, they also are conduct “‘in furtherance of’ protected speech”—i.e., the rated movies. Anthony v. Buena Vista Home Entm’t, No. 2:15-cv-09593-SVW-JPR, Order 10-12 (C.D. Cal. Sept. 28, 2016).2

DATED: November 7, 2016 Respectfully submitted,

MUNGER, TOLLES & OLSON LLP

By: /s/ Kelly M. Klaus

KELLY M. KLAUS

Attorneys for MPAA and Studio Defendants

BRYAN CAVE LLP

By: /s/ K. Lee Marshall

K. LEE MARSHALL Attorneys for NATO

* * * In accordance with Civil Local Rule 5-1(i), the filer attests that each of the above signatories have concurred in the filing of this document.

DATED: November 7, 2016 By: /s/ Kelly M. Klaus

KELLY M. KLAUS

2 Rezec’s view that the statute did not protect ads if they contained something not in the underlying movies—the “fictitious critic’s favorable opinion,” 116 Cal. App. 4th at 142-43—does not apply here because the ratings are attached to the movies. Rezec also erred in conflating the second prong of the anti-SLAPP analysis (i.e., the ads’ falsity) with the first. Doe v. Gangland Prods., 730 F.3d 946, 954 (9th Cir. 2013).

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DEFS.’ OPP. TO PL.’S MOT. FOR LEAVE TO FILE POST-HEARING BRIEF

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