In Escalating Copyright Suit, EA Hits Zynga With Anti-SLAPP Motion

This story originally appeared in sibling publication The Recorder.

Electronic Arts Inc. has invoked a California law designed to protect citizens’ constitutional rights to lash back at rival Zynga Inc. in the gamemakers’ ongoing legal tussle in federal court. And lawyers for the Redwood City gaming company are relying on helpful anti-SLAPP precedent from an appeal argued by the law firm now representing Zynga.

The dispute between the competitors has become increasingly combative since EA sued San Francisco-based Zynga in August for copyright infringement, calling Zynga’s social networking game The Ville an “unmistakable copy” of EA’s game The Sims Social. Zynga fired back with a scathing counterclaim alleging breach of contract and unfair business practices. In the filing, Zynga accused EA of breaking a private agreement between the firms by threatening “sham litigation” and finally suing Zynga.

The latest fusillade came Friday as EA asked U.S. District Judge Susan Illston of San Francisco to throw out Zynga’s counterclaim and award attorneys’ fees and costs to EA under California’s anti-SLAPP law. “EA’s alleged threats to initiate litigation arise from its constitutionally protected right to petition for redress of grievances and are protected activities under the anti-SLAPP statute,” wrote EA’s lawyer Robert Klieger of Kendall Brill & Klieger in Los Angeles.

Klieger found support for the legal maneuver in a 2004 appeal argued by lawyers at Quinn Emanuel Urquhart & Sullivan. The motion cites Blanchard v. DIRECTV Inc., 123 Cal. App. 4th 903. In that case, Quinn Emanuel invoked the anti-SLAPP statute to defeat a class action filed against DIRECTV. The decision established that litigation activity falls under the anti-SLAPP statute, “without regard to ‘motives, morals, ethics or intent,’” Klieger wrote.

Zynga’s lead attorneys, Claude Stern of Quinn Emanuel and Bradford Newman of Paul Hastings, each declined to comment, as did a spokeswoman for Zynga.

EA simultaneously filed a separate motion to dismiss Zynga’s counterclaim without reliance on the anti-SLAPP statute. A spokeswoman for the company declined comment. In addition to Klieger, Electronic Arts is represented by Carolyn Hoecker Luedtke of Munger, Tolles & Olson.

California’s anti-SLAPP statute was passed in 1992 to shield parties from lawsuits that would chill activities protected by the First Amendment, such as speaking publicly and filing grievances with the court. The term SLAPP is short for Strategic Lawsuits Against Public Participation. Under the measure, lawsuits that target protected activity are subject to a special motion to strike, which forces plaintiffs to establish a probability of prevailing at an early stage of the litigation. The U.S. Court of Appeals for the Ninth Circuit has held that anti-SLAPP motions can be heard in federal court if they relate to state law claims.

Theona Zhordania, counsel in the Los Angeles office of McKenna Long & Aldridge, said anti-SLAPP motions can be filed in nearly any type of claim. “It really has to do with the type of conduct alleged, as opposed to the cause of action” Zhordania said. “Any cause of action based on a defendant’s free speech or petitioning activity is subject to an anti-SLAPP motion.

Zhordania said there is little downside to filing such a motion and it has become a common tactic to delay litigation because denial results in automatic appeal. “It’s a good tool to force the other side to prove up their case,” she said.

Mark Goldowitz, founder and director of the California Anti-SLAPP Project in Berkeley, said the law was not designed to protect big businesses. “It was really intended to protect the little guy,” Goldowitz said. No matter who is involved, if the wrongful act alleged is the filing of a lawsuit, then the anti-SLAPP statute applies. “I think that’s proper,” he said.