May 2019 Archives

Stricter Interpretation Required: The Strategic Lawsuits Against Public Participation Statute Requires Analysis of Both Content and Context

On May 6, 2019, the Supreme Court of California published an opinion drastically altering the way strategic lawsuits against public participation ("SLAPP") statutes are interpreted. The anti-SLAPP statute allows for a "special motion to strike meritless claims early in litigation - but only if the claims arise from acts in furtherance of a person's right of petition or free connection with a public issue." (pg. 1) The case setting this in motion, Inc. v. Doubleverify Inc., deals with two for-profit companies who are disputing how one company was portrayed in a confidential report. The trial and appellate courts both held Doubleverify, Inc's reports were protected under the anti-SLAPP statute. They further held context was irrelevant in analyzing whether an anti-SLAPP statute was applicable. However, the Supreme Court of California reversed this decision, holding "the context of a defendant's statement is relevant, though not dispositive, in analyzing whether the statement was made 'in furtherance of' free speech 'in connection with' a public issue." (pg. 2)

Trademark Licensee's Rights Not Rescinded Upon Debtor/Licensor's Rejection of the License

The Supreme Court of the United States (SCOTUS) resolved a circuit split when it recently held in Mission Product Holdings, Inc. v. Tempnology, LLC, No. 17-1657 (May 20, 2019) that the debtor's rejection of Mission's license agreement did not terminate Mission's rights to use the debtor's trademarks because outside of bankruptcy, a licensor's breach cannot revoke the licensee's continuing rights. The SCOTUS focused on the language in Section 365(a) of the Bankruptcy Code that rejection constitutes a breach. Since breach is not defined in the Bankruptcy Code, the SCOTUS looked to the result of a licensor's breach outside of bankruptcy, which is that "a licensor's breach cannot revoke continuing rights given to a counterparty under a contract." In other words, "rejection breaches a contract but does not rescind it" when breach is deemed to have occurred pre-petition. 

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