Opinion
B307753
12-27-2021
Steven A. SUGARMAN et al., Plaintiffs and Appellants, v. Halle BENETT et al., Defendants and Appellants.
Anderson Kill and Cozen O'Connor, Jeremy E. Deutsch, Christian V. Cangiano, Erik L. Jackson, Los Angeles; Anderson Kill California and Bridget B. Hirsch, Los Angeles, for Plaintiffs and Appellants. Morrison & Foerster, Mark R. McDonald, Los Angeles, James R. Sigel, San Francisco, Joseph R. Palmore and Michael F. Qian for Defendants and Appellants Halle Benett, Hugh Boyle, John Grosvenor, Jeffrey Karish, Richard Lashley, Jonah Schnel, and Robert Sznewajs. Simpson Thacher & Bartlett, Chet A. Kronenberg, Los Angeles, Jonathan Sanders, Palo Alto; Scheper Kim & Harris, David C. Scheper, Los Angeles, Gregory A. Ellis, Los Angeles, Michael L. LaVetter, Los Angeles, and Alexandra C. Aurisch, Los Angeles, for Defendants and Appellants Banc of California, N.A. and Banc of California, Inc.
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts 2 through 7 of the Discussion.
Anderson Kill and Cozen O'Connor, Jeremy E. Deutsch, Christian V. Cangiano, Erik L. Jackson, Los Angeles; Anderson Kill California and Bridget B. Hirsch, Los Angeles, for Plaintiffs and Appellants.
Morrison & Foerster, Mark R. McDonald, Los Angeles, James R. Sigel, San Francisco, Joseph R. Palmore and Michael F. Qian for Defendants and Appellants Halle Benett, Hugh Boyle, John Grosvenor, Jeffrey Karish, Richard Lashley, Jonah Schnel, and Robert Sznewajs.
Simpson Thacher & Bartlett, Chet A. Kronenberg, Los Angeles, Jonathan Sanders, Palo Alto; Scheper Kim & Harris, David C. Scheper, Los Angeles, Gregory A. Ellis, Los Angeles, Michael L. LaVetter, Los Angeles, and Alexandra C. Aurisch, Los Angeles, for Defendants and Appellants Banc of California, N.A. and Banc of California, Inc.
GRIMES, Acting P. J.
SUMMARY
These are appeals by both plaintiffs and defendants from trial court rulings on two anti-SLAPP (strategic lawsuits against public participation) motions to strike seven of the 12 causes of action in plaintiffs’ complaint. ( Code Civ. Proc., § 425.16 ; further statutory references are to this section unless otherwise specified.)
Plaintiff Steven A. Sugarman and his trust sued Banc of California, several individual directors and Banc executives, and Banc's lead auditor, in the wake of a scandal that led to plaintiff's resignation from his positions at Banc in January 2017. Banc brought its own anti-SLAPP motion, and seven of the present or former directors or executives (the Banc individuals) brought a separate anti-SLAPP motion. The rulings on those two motions are the subject of this appeal. Two other individual defendants brought their own separate anti-SLAPP motions, and their appeals are resolved in a separate opinion. ( Sugarman v. Brown (Dec. 27, 2021, B308318) 73 Cal.App.5th 152, 288 Cal.Rptr.3d 165.)
The trial court granted in part and denied in part the two motions to strike that are the subject of this appeal. We conclude the trial court should have granted both motions in their entirety, and so affirm the orders in part and reverse them in part. We publish the portion of our opinion holding that statements Banc made in its Forms 8-K and 10-Q filed with the Securities and Exchange Commission (SEC), as well as related investor presentations and conversations, are protected activity under section 425.16, subdivision (e)(2) as matters under review and consideration by the SEC. Statements related to financial projections were also protected under section 425.16, subdivision (e)(4), as matters of public interest. FACTS
1. The Parties
Plaintiff is the former chairman of the board, president and chief executive officer (CEO) of defendants Banc of California, Inc., and Banc of California, N.A. (Banc). He resigned his positions at Banc on January 23, 2017. The Steven and Ainslie Sugarman Living Trust, a revocable living trust and stockholder in Banc, is also a plaintiff. For convenience, we refer to both Mr. Sugarman and the trust in the singular as plaintiff.
Plaintiff sued Banc and the Banc individuals over statements they made after plaintiff's resignation. The Banc individual defendants were executives or members of the board of directors and include Halle Benett, Hugh Boyle, John Grosvenor, Jeffrey Karish, Richard Lashley, Jonah Schnel and Robert Sznewajs. When plaintiff resigned, Mr. Sznewajs became chairman of the board. Mr. Boyle was Banc's chief risk officer and became interim CEO as well when plaintiff resigned. Mr. Grosvenor was general counsel and corporate secretary.
2. The Complaint
The operative complaint spans 166 pages, plus more than 600 pages of attached exhibits. Plaintiff alleged 12 causes of action. The seven causes of action at issue in these appeals fall into four categories: (1) fraudulent inducement and negligent misrepresentation to induce holder to hold securities (the inducement claims); (2) preventing subsequent employment by misrepresentation (blacklisting) and tortious interference with prospective economic advantage; (3) unfair competition and conspiracy to engage in unfair competition (the UCL claims); and (4) defamation.
The complaint alleges that plaintiff reported wrongdoing and self-dealing by defendant Halle Benett and others at Banc, and then he resigned, after the director defendants refused to address the wrongdoing (described at length in the complaint). A separation agreement provided severance payments in exchange for mutual releases of all potential claims that existed as of January 23, 2017. Defendants immediately launched a campaign to attack plaintiff in order to conceal their wrongdoing, dissuade him from selling his Bank stock, and harm his ability to compete with defendants.
In addition to concealing "numerous illegal acts" and breaching various contracts, defendants "also have hidden from [plaintiff] the true state of Banc's business including its cratering financial performance since his departure," and took various actions "to obscure the devastating effects their illegal actions had on Banc's business, financial performance and prospects. Defendants made their false representations in order to harm [plaintiff] including in order to induce [plaintiff] to hold his Banc securities in reliance on the false information, promises, and disclosures." The complaint alleges defendants "have conducted a coordinated campaign ... to further their Cover Up, to damage [plaintiff's] reputation with a barrage of vindictive, untrue, and harmful actions; to publish and distribute false and misleading information intended to present [plaintiff] in a negative light; and to scapegoat [plaintiff] for their wrong-doing and [m]isconduct which has resulted in tens of millions of dollars of damages to [plaintiff]."
We will describe the allegations in more detail in our legal discussion.
3. Background Facts
As might be expected, plaintiff and defendants paint a very different picture of the circumstances surrounding plaintiff's resignation and the aftermath. Some background facts are not open to dispute.
Plaintiff is a prominent businessman and entrepreneur in California and headed Banc from 2013 until January 2017.
On October 18, 2016, an anonymous blogger made allegations of wrongdoing against Banc and senior officers and directors at Banc, claiming they had extensive ties to notorious fraudster Jason Galanis, who was known for secretly gaining control of financial institutions and other public companies and looting their assets. The blog post concluded Banc was "simply un-investible." Plaintiff was prominent among the officers and directors named in the blog post.
That same day, Banc published a press release announcing it was aware of the allegations posted; the board, acting through its disinterested directors, had previously begun a thorough independent investigation of claims of an affiliation between Galanis and company personnel; the board had received regular reports over the last year from the law firm leading the investigation; and certain claims of affiliations made by Galanis concerning a company in which plaintiff had an interest were fraudulent.
Three months later, on January 23, 2017, Banc issued two more press releases. One announced a new chairman of the board (defendant Sznewajs) and plaintiff's resignation. The other provided an update on the independent investigation into the blog post allegations. It stated that, in response to the allegations in the blog post, the board formed a special committee that began a process to review the allegations. On October 27, 2016, Banc's independent auditor, KPMG, sent a letter "raising concerns about allegations of ‘inappropriate relationships with third parties’ and ‘potential undisclosed related party transactions.’ " On October 30, 2016, the special committee hired a law firm with no prior relationship with Banc to conduct an independent investigation of the issues raised by the blog post and questions raised by the KPMG letter.
The press release further stated the inquiry had determined that Banc's initial October 18, 2016 press release contained inaccurate statements. While an investigation had been conducted before the blog post appeared, "it appears to have been directed by Company management rather than any subset of independent directors," and the press release did not disclose that the law firm conducting the investigation had previously represented both Banc and plaintiff individually. (A declaration from a lawyer for the Banc individuals states that plaintiff ordered the October 18 press release to be published; plaintiff's declaration states others at Banc drafted and disseminated the release.)
The press release reported that on January 12, 2017, the SEC "issued a formal order of investigation directed at certain of the issues that the Special Committee is reviewing," and subpoenaed documents from Banc, "primarily relating to the October 18, 2016 press release and associated public statements."
The January 23, 2017 press release also announced changes in corporate governance policies, including separating the roles of board chair and CEO, and indicated Banc was "in the process of preparing a more rigorous policy to govern review and approval of proposed related party transactions."
Also on January 23, 2017, the first of several class action complaints was filed, alleging violation of federal securities laws, naming Banc, plaintiff, and two other defendants. The complaint described the blog post and ensuing events, and alleged false or misleading communications to investors and failures to disclose material information relating to the blog post investigation.
On February 9, 2017, the law firm conducting the independent investigation for the special committee reported that its inquiry found no evidence Jason Galanis had any control or undue influence over Banc.
More than two and a half years later, on September 15, 2019, the lead plaintiff in the securities litigation agreed to dismiss Mr. Sugarman with prejudice. The agreement states the class action plaintiff found no proof Galanis had any control over Mr. Sugarman or affected his actions, and the October 18, 2016 press release reflected information provided to Mr. Sugarman. The agreement provided the dismissal with prejudice was to become effective upon approval of the agreement as well as a settlement with Banc. A month later, plaintiff filed the complaint in this case. Several weeks after that, plaintiff was voluntarily dismissed, without prejudice, from Banc stockholder derivative litigation.
On December 20, 2019, the SEC concluded its investigation of plaintiff, with no action being taken.
4. The Anti-SLAPP Motions and Rulings
Banc and the Banc individuals filed separate anti-SLAPP motions, and Banc joined in the Banc individuals’ motion.
In response, plaintiff submitted an 80-page declaration, along with several other declarations. The Banc individuals filed 281 objections, and Banc filed more than 200 objections, many of which were sustained.
The trial court granted Banc's motion in part, but only with respect to certain allegations of the inducement, UCL and defamation claims. The court found Banc did not show that all statements about plaintiff's departure from Banc relevant to the tortious interference claim arose from protected activity. The court did not strike any cause of action in its entirety.
Similarly, the trial court granted the Banc individuals’ motion only in part, striking some but not all allegations in the inducement, tortious interference and defamation causes of action, refusing to strike the UCL claim, and striking the UCL conspiracy claim.
All parties contend in various respects that the trial court ruled inconsistently and erroneously failed to consider certain arguments. Because our review is de novo, we need not consider or describe further the trial court's rulings.
All parties filed timely notices of appeal.
DISCUSSION
The anti-SLAPP statute and procedures have been described many times.
A defendant may bring a special motion to strike any cause of action "arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue ...." ( § 425.16, subd. (b)(1).) When ruling on an anti-SLAPP motion, the trial court employs a two-step process. The moving defendant bears the initial burden of establishing that the challenged allegations or claims " ‘ "aris[e] from" protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit." ’ [Citation.] If the plaintiff fails to meet that burden, the court will strike the claim." ( Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884, 249 Cal.Rptr.3d 569, 444 P.3d 706.)
In making these determinations, the trial court considers "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." ( § 425.16, subd. (b)(2).) "As to the second step, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’ " ( Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788, 249 Cal.Rptr.3d 295, 444 P.3d 97.)
Our review is de novo. ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3, 46 Cal.Rptr.3d 638, 139 P.3d 30.)
1. The Inducement Claims: Protected Activity
a. The allegations and evidence
The fraudulent and negligent inducement claims were based on the same facts, alleging the Banc defendants made misrepresentations to induce plaintiff to hold, rather than sell, Banc common stock and warrants.
The complaint alleged Banc made misrepresentations in investor presentations and in public disclosures in Forms 8-K and 10-Q filed with the SEC. "The SEC requires disclosure of specified material changes and other events ‘that the registrant deems of importance to security holders’ whenever they occur via a Form 8-K." ( Hawran v. Hixson (2012) 209 Cal.App.4th 256, 263, fn. 2, 147 Cal.Rptr.3d 88 ( Hawran ).) A Form 10-Q is a quarterly report of financial performance that publicly traded companies must file with the SEC.
For example, on January 30, 2017, defendants hosted an investor conference call. Defendant Boyle "provided very optimistic guidance to investors given the enormous changes at the Banc. [Defendants] indicated the Banc would make $2.00 per share and achieve very attractive financial returns across multiple metrics. They indicated [plaintiff's] departure would not result in material earnings disruption and would have an immaterial impact on lending, deposits and earnings." Plaintiff's complaint cites and attaches Banc's Form 8-K's filed with the SEC, which attach the investor presentation materials containing the earnings per share guidance. As another example, Banc's 10-Q report for the quarter ending March 31, 2017, stated that Banc "will further enhance our risk assessment and monitoring activities by implementing new training activities, hiring additional capable resources, improving our certification and sub-certification quarterly processes, and enhancing our Risk and Fraud Risk assessment processes to ensure appropriate resources and controls are in place to mitigate risks commensurate with the risk assessment."
Defendants’ misrepresentations included "that [defendants] would conduct sufficient and detailed investigations, free from conflict, concerning the allegations raised by all of the various whistleblower complaints." This included representations made by defendant Lashley in a telephone call with plaintiff on April 6, 2017.
Plaintiff alleged that in the telephone call with Mr. Lashley, he pointed out certain disclosures in a March 6, 2017 investor presentation he believed to be false. He asked Mr. Lashley to "conduct a full review of the disclosures and ensure all misstatements were corrected." These included plaintiff's concerns about whether Banc would be able to achieve its $2 earnings-per-share guidance, and "numerous concerns relating to malfeasance and potentially false and misleading disclosures at Banc." Defendant Lashley told plaintiff he would personally ensure Banc's financials and public disclosures were reliable and accurate.
According to plaintiff, in the telephone call, Lashley also told plaintiff that "he hoped [plaintiff] would continue to be a large shareholder" and said plaintiff would be pleased if he continued to hold his shares "because the longer term performance of the shares would improve due to the actions he was taking to clean up the governance issues that [plaintiff] had identified." The complaint alleged all defendants had actual knowledge those representations were made "and were false at the time they were made," and defendants had no intention "of conducting any investigation sufficient to insure the truth or accuracy of the Banc's publicly filed financial disclosures."
Plaintiff relied on Lashley's assurances, because soon after, an April 10 investor presentation and accompanying Form 8-K filing "appeared to address, and quickly, some of the important issues that I had raised with Lashley during our call on April 6." Plaintiff alleged these turned out to be "cosmetic changes."
Earnings per share missed the January 30, 2017 guidance by over 60 percent. b. Contentions and conclusions
To begin, we state the categories of activity protected under the anti-SLAPP statute: any written or oral statement or writing (1) "made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law" or (2) "made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law" or (3) "made in a place open to the public or a public forum in connection with an issue of public interest," or (4) "any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." ( § 425.16. subd. (e)(1)–(4).)
As mentioned at the outset, Banc defendants sought to strike the inducement claims in their entirety. They relied on both section 425.16, subdivision (e)(2) (statements made in connection with an issue under consideration or review, in this case by the SEC), and on subdivision (e)(4) (statements in connection with a public issue or an issue of public interest).
We agree with the Banc defendants that statements Banc made in its Forms 8-K and 10-Q are protected under section 425.16, subdivision (e)(2) as matters under review and consideration by the SEC. Indeed, statements on governance issues related directly to the subject matter of the then-pending investigation the SEC began on January 12, 2017. Statements related to financial projections were also protected under subdivision (e)(4), as matters of public interest. Defendant Lashley's statements on April 6, 2017, were protected, as they were closely related to the investor presentations and governance issues that were the subject of Form 8-K and 10-Q filings at the SEC.
i. Section 425.16, subdivision (e)(2)
(1) The investor presentations and accompanying SEC filings
In our separate opinion in the Brown appeal, we concluded that statements in an audit report attached to a 10-K annual report filed with the SEC were protected statements made "in connection with an issue under consideration or review" by the SEC. ( § 425.16, subd. (e)(2).) We explained that the SEC is required by law to review disclosures made by issuers of securities, "including reports filed on Form 10-K," "on a regular and systematic basis" and no less frequently "than once every 3 years." ( 15 U.S.C. § 7266, subds. (a) & (c).) "Such review shall include a review of an issuer's financial statement." ( 15 U.S.C. § 7266, subd. (a).) This alone, we concluded, subjected plaintiffs’ claims against Banc's lead auditor, based on the 10-K report, to the anti-SLAPP statute. (Sugarman v. Brown, supra , B308318.)
Here, we reach the same conclusion with respect to the Form 8-K and Form 10-Q filings at issue. Those SEC filings and the related investor presentations were protected activity under section 425.16, subdivision (e)(2).
In Hawran, supra, 209 Cal.App.4th 256, 147 Cal.Rptr.3d 88, "the trial court found [the defendant company's] Form 8-K put the issues identified in the form under consideration or review by the SEC," and that the company's press release, "from which [the plaintiff's] claims arose, was thus protected as a writing ‘made in connection with an issue under consideration or review by ... any other official proceeding authorized by law,’ " quoting section 425.16, subdivision (e)(2). ( Hawran, at p. 269, 147 Cal.Rptr.3d 88.) The Court of Appeal continued: "This finding alone subjects [the plaintiff's] claims to section 425.16." ( Ibid. ) In Hawran, the court went on to explain the plaintiff did not challenge the trial court's finding on appeal, so the court "need not reach the correctness of that finding." ( Id. at p. 270, 147 Cal.Rptr.3d 88.) We think the trial court in Hawran correctly found the defendant's Form 8-K and press releases were protected. Indeed, in connection with a different issue, Hawran observed that the Form 8-K "was filed for the purpose of complying with the SEC's mandatory disclosure requirements," and "may constitute a writing before an official proceeding." ( Hawran, supra, 209 Cal.App.4th at p. 281, 147 Cal.Rptr.3d 88.) As we noted earlier, Form 8-K filings are required by the SEC to report specified material changes and other events the registrant deems important to investors. "The SEC's reporting requirement is designed to make accurate information available to the investing public, and the mandatory filings allow the SEC to determine whether to investigate a particular transaction." ( Id. at p. 263, fn. 2, 147 Cal.Rptr.3d 88.) These requirements subject the information reported to SEC review, and accordingly the statements in the reports are protected under section 425.16, subdivision (e)(2).
Plaintiff contends the investor presentations and Form 8-K and Form 10-Q statements are not protected, because the investor presentations were not designed to trigger an SEC investigation, and because not every statement to the SEC is protected. We do not agree that an SEC filing must be designed to trigger an investigation in order to be protected activity, and the cases plaintiff cites do not persuade us otherwise. Whether or not all statements to a regulator are protected, it is clear to us that these statements are.
Plaintiff relies heavily on Moser v. Encore Capital Group, Inc. (S.D.Cal., May 2, 2006, No. 04CV2085) 2006 WL 8427269, 2006 U.S. Dist.Lexis 109142. That case involved allegedly defamatory statements in a Form S-1, a registration statement required before securities may be sold. (Id. at *3, 2006 U.S. Dist.Lexis 109142, at p. *11.) The district court observed that "no report of wrongdoing or purpose of triggering an investigation is involved in the filing of a Form S-1" (id. at *5-6, 2006 U.S. Dist.Lexis 109142, at p. *18), and "[t]he specifics of the employment dispute between [the plaintiff] and [the defendant] were irrelevant to the SEC's determination whether [the defendant] may sell securities more than two years after the employment dispute" ( id. at *6-7, 2006 U.S. Dist.Lexis 109142, at pp. *20–21 ). The court concluded: "Since the purpose of a Form S-1 is not to trigger or commence an investigation, and since the employment dispute ... was not an issue under consideration or review before the SEC," the defendants failed to meet their burden to show protected activity. ( Id. at *6-7, 2006 U.S. Dist.Lexis 109142, at p. *21, italics added.)
Whether or not one agrees with Moser , the case is inapt here. Unlike the two-year-old employment matter reported in Form S-1 filed to obtain authorization to sell stock, here the "issue under consideration or review" is the very subject matter of the 8-K filings and investor presentations: the company's financial projections. Moser is irrelevant. Plaintiff also cites ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009, 113 Cal.Rptr.2d 625 and Fontani v. Wells Fargo Investments, LLC (2005) 129 Cal.App.4th 719, 731–732, 28 Cal.Rptr.3d 833, cases that involved communications soliciting an investigation ( ComputerXpress ) and reporting misconduct and triggering an investigation ( Fontani ). Those cases do not hold that regulatory filings are protected activity only if they were designed to trigger an investigation or report misconduct.
Fontani was disapproved on other grounds in Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 203, footnote 5, 46 Cal.Rptr.3d 41, 138 P.3d 193.
Plaintiff cites other inapt cases. (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1129, 41 Cal.Rptr.3d 1 [stop notices a contractor served on a school district, requiring the district to withhold funds due the general contractor, did not involve an "official proceeding" and subdivision (e)(1)—statements "made before a[n] official proceeding"—was inapplicable]; City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 215, 129 Cal.Rptr.3d 433 [claims based on the routine filing of tax returns at the State Board of Equalization, which transmits tax revenues to local jurisdictions based on the returns, do not arise from protected activity]; DeFrees v. Kirkland (C.D.Cal. Aug. 23, 2012, Nos. CV 11-4272; CV 11-4574) 2012 WL 12885069, 2012 U.S.Dist.Lexis 195922 [denying frivolous anti-SLAPP motion; suit was based on defendants raiding the company, not on protected speech]; Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 627, 243 Cal.Rptr.3d 1, 433 P.3d 899 [alleged promissory fraud in a statement made to the plaintiff about renewal of an exclusive agency agreement; statement was made two years before the renewal issue even came before the City Council].) Plaintiff requests judicial notice of the complaint in the DeFrees case, which mentions a Form 8-K and a Form 10-Q amendment, "similar to the SEC filings at issue in this case." That changes nothing in our evaluation of DeFrees , and so we deny the request for judicial notice.
(2) The Lashley conversation
Plaintiff contends that defendant Lashley's private statements to him during the April 6, 2017 telephone conversation are not protected "for similar reasons." We have rejected those reasons. Mr. Lashley's statements related directly to the investor presentations. For example, plaintiff pointed out disclosures he believed were false in the March 6, 2017 presentation, and Mr. Lashley assured him he would conduct a full review of the disclosures and ensure they were reliable and accurate. The connection between Mr. Lashley's statements and the investor presentations and SEC filings is clear, and Mr. Lashley's statements are protected under subdivision (e)(2) as well.
ii. Section 425.16, subdivision (e)(4)
Section 425.16, subdivision (e)(4) protects any conduct in furtherance of the exercise of free speech or petition rights "in connection with a public issue or an issue of public interest" (ibid. ), and is referred to as "the catchall provision" ( FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 140, 246 Cal.Rptr.3d 591, 439 P.3d 1156 ( FilmOn )). As we concluded in our separate opinion on defendant Turner's anti-SLAPP motion, statements about Banc's financial projections made in earnings calls, and in the 8-K reports to the SEC were public statements relating to Banc's financial position and were likely to impact individual investors and the market. They therefore qualify as protected activity under the catchall provision.
"[A] publicly traded company with many thousands of investors is of public interest because its successes or failures will affect not only individual investors, but in the case of large companies, potentially market sectors or the markets as a whole." ( Global Telemedia Int'l, Inc. v. Doe 1 (C.D.Cal. 2001) 132 F.Supp.2d 1261, 1265.) The financial projections of a large, publicly traded company like Banc are of great interest to a significant community of investors.
Consequently, we have no difficulty concluding that statements by Banc and Banc individuals at investor presentations and on earnings calls, and the earnings guidance in the 10-Q report, had a high " ‘degree of closeness’ " ( FilmOn, supra , 7 Cal.5th at p. 150, 246 Cal.Rptr.3d 591, 439 P.3d 1156 ) to the public interest in the performance of a publicly traded company. Those statements were thus made "in connection with a public issue or an issue of public interest." ( § 425.16, subd. (e)(4).)
[Begin nonpublished portion]
See footnote *, ante .
[End of nonpublished portion] DISPOSITION
The trial court's orders are affirmed to the extent the court granted the Banc defendants’ anti-SLAPP motions to strike plaintiff's second, third, fifth, sixth, seventh, eighth and ninth causes of action. The orders are reversed to the extent the trial court denied the Banc defendants’ motions, and the court is directed to grant the motions in their entirety. All defendants shall recover costs on appeal.
WE CONCUR:
STRATTON, J.
Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.