Ruling on Law Firm Press Releases Jul 15, 2016

Court Grants Law Firms Wide Berth In Celebratory Press Releases

By: Carl I. S. Mueller of The Maloney Firm, APC

In J-M Manufacturing Company, Inc. v. Phillips & Cohen LLP, the California Appellate Court considered whether a defamation and trade libel claim based on a law firm’s celebratory press release fell within Code of Civil Procedure § 425.16. In its decision filed on May 2, 2016, the Court of Appeal reversed the trial court’s decision that “it was a question of fact for the jury whether the press release was privileged as a fair and true report of judicial proceedings” within Civil Code § 47, and granted the law firm’s Anti-SLAPP motion striking the defamation and trade libel allegations.
The press release at issue arose from a jury decision as to liability in a bifurcated trial finding against J-M Manufacturing Company, Inc. (“J-M”), as follows:

On November 14, 2013 the jury returned a special verdict in favor of each of the five representative plaintiffs, finding that J-M did “present or caused to be presented to a [government] officer or employee a claim for payment or approval that was false or fraudulent,” that the claim was materially false and that J-M presented the false claim with the requisite intent.

However, no decision was made as to damages. Like many law firms, the law firm trying the case against J-M, Phillips & Cohen LLP (“Phillips & Cohen”), issued a press release announcing the winning verdict on the liability stage, with the following headline:

JM Eagle faces billions in damages after jury finds JM liable for making and selling faulty water pipes.

Phillips & Cohen also included within its press release that the jury found that J-M “knowingly manufactured and sold to government entities substandard plastic pipe,” despite the jury making no express findings as to these allegations.
In response to the press release, J-M filed a lawsuit against Phillips & Cohen that alleged defamation and trade libel:

[S]tatements in Phillip & Cohen’s press release that “a federal jury unanimously found that J-M manufactured and sold pipe that is ‘faulty,’ ‘substandard,’ ‘weak,’ and ‘shoddy’” were “neither a fair nor an accurate report of the proceedings” and grossly misrepresented the jury’s findings.

Applying Civil Code § 47, the Court of Appeal was tasked to determine whether a privilege existed for Phillip & Cohen’s statements as a “fair and true” report of official proceedings. Although the trial court had found that adequate evidence had been presented in opposition to Phillip & Cohen’s Anti-SLAPP motion to allow this issue to be decided by a jury, the Court of Appeal found:

[I]n measuring “a ‘fair and true report’” the defendant is “permit[ted] a certain degree of flexibility/literary license,” [Citing Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 262, footnote 13.]

Further the Appellate Court ruled that any challenged statements must be read in light of the entirety of the allegedly defamatory publication:

[T]he challenged language must be viewed in context to determine whether, applying a “totality of the circumstances” test, it is reasonably susceptible to the defamatory meaning alleged by the plaintiff.

In its opposition to the Anti-SLAPP motion, J-M conceded its allegation arose out of protected activity, but still contested, and the trial court agreed, that there was enough evidence to show a likelihood of prevailing on its claim. But the Appellate Court held in its decision to reverse:

To describe the noncompliant and misrepresented pipe sold by J-M as “faulty” or “substandard” falls well within the acceptable margin of flexibility/literary license.

Further, as to the misleading headline, the Appellate Court determined that any misunderstanding would be cured after “the headline is read and considered with the press release as a whole.”
As such, the Appellate Court has apparently opened the door for law firms to issue flashy press releases – even if it rises to “self promotion or puffery” – provided that the bravado of those headlines are properly explained within the body of the press release.

South Bay MCLE Series on April 14 – Effective Conflict Waivers Mar 14, 2016

In a published decision, the California Court of Appeal recently ordered a major law firm to return $1.3 million in previously paid fees due to a deficient conflict waiver. In this presentation, Patrick Maloney will address the requirements of preparing bullet proof conflict waivers, which are necessary to avoid allegations of malpractice, breach of fiduciary duty, or disgorgement of fees.

Space is limited. Please RSVP by calling 310.540.1505 or emailing

Print Invitation

Young Entrepreneurs Academy CEO Roundtable Mar 08, 2016

Patrick Maloney will be on the panel for tonight’s CEO Roundtable of business leaders providing insight and guidance to local high school students participating in the Young Entrepreneurs Academy. To learn more about YEA, Click Here.

2016 Super Lawyers Jan 20, 2016

Congratulations to Patrick M. Maloney for being named to the 2016 Southern California Super Lawyers list, an honor bestowed upon only 5% of attorneys. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.

New Standard for Terminating Sanctions Dec 23, 2015

Shocking Behavior Sets New Standard for Terminating Sanctions
By Carl Mueller, The Maloney Firm, APC

In a recent decision, Crawford v. JPMorgan Chase Bank, N.A., the California Appellate Court definitively set the upward limit on abusive behavior during a deposition:

If ever a case required terminating sanctions, this is it. Crawford threatened to use pepper spray and a taser on opposing counsel and was openly contemptuous of the trial court. He made it impossible to continue with the litigation. Far from the trial court abusing its discretion, it would have been an abuse of discretion not to impose a terminating sanction.

Crawford v. JPMorgan Chase Bank, N.A. (2015) Appellate Case No. B257412 (emphasis added).

To be sure, the behavior of the attorney in question, the named appellant, Mr. Crawford, was particularly egregious. At his deposition, Mr. Crawford produced a can of pepper spray during initial admonitions said:

Mr. Traver, if things get out of hand, I brought a what is legally pepper spray, and I will pepper spray you if you get out of hand.

Which Mr. Crawford followed by producing a stun gun and saying:

If that doesn’t quell you, this is a flashlight that turns into a stun gun.

Mr. Crawford then demonstratively discharged the stun gun twice.

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Defending Class Action Lawsuits Oct 08, 2015

Defeating Class Certification – When a Win Really Isn’t a Win
By Gene Williams, The Maloney Firm, APC

Attorneys who defend against class action lawsuits know that the most effective and decisive way to beat such a lawsuit is to defeat class certification. A denial of class certification reduces an otherwise large case with significant exposure for the defendant to a single plaintiff (or a small number of plaintiffs), and can then be resolved either with a motion for summary judgment or a modest settlement. However, not all denials of class certification are treated equally, as the defendant in Tellez v. Rich Voss Trucking, Inc., Santa Clara County Sup. Ct. No. 1-12-CV-227103 recently learned.

In Tellez, plaintiff filed a putative class action against Rich Voss Trucking alleging wage and hour violations. After substantial delay by the plaintiff, including one granted extension of time to file a motion for class certification and after another request for extension was denied, Plaintiff filed his motion for class certification. The court set the motion for hearing and issued a tentative denying the motion for class certification, but provided no basis for that denial. The tentative simply stated that the motion was denied.

In connection with the hearing on the motion, the plaintiff failed to comply with Santa Clara County local rules regarding contesting a tentative, which required the plaintiff to call the court and opposing counsel the day before the hearing to inform them of the party’s intent to contest the tentative. As a result, the defendant’s counsel did not appear at the hearing, and the court expressed its frustration with Plaintiff’s counsel that it could not substantively discuss the motion because defendant’s counsel was not present. The court simply indicated that the tentative would become final. When plaintiff’s counsel asked if the Court would provide a more detailed explanation of the basis for its denial of class certification, the Court stated that “I don’t intend to.”  

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South Bay MCLE Series on Oct. 15th – The “B” Word Sep 24, 2015

Terms like “Chapter 11,” “automatic stay,” “core proceedings,” “exclusivity period,” and “nondischargeability” often sound like a foreign language to those who do not regularly practice in the bankruptcy courts. This presentation will help to demystify this lingo and provide attorneys with the an overview of the bankruptcy process so they can provide appropriate advice to their clients. Space is limited. Please RSVP by calling 310.540.1505 or emailing

This presentation has been approved by the State Bar of California for 1.0 hour of MCLE credit.
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Does the Chipotle GMO Lawsuit Go Too Far? Sep 16, 2015

Does the Chipotle GMO Lawsuit Go Too Far?
By Gene Williams, The Maloney Firm, APC

In recent years, the American public has become markedly more health-conscious with respect to the ingredients contained in the food it consumes, and has demanded increased transparency from the companies who manufacture, prepare and sell food. The companies have acted predictably, looking to capitalize on the public’s desire for information by disclosing more and more information regarding what is or isn’t in the food they sell. The government has done its part by implementing heightened standards for food labeling. And consumer protection attorneys have played their role of watchdog, making sure that the companies who are profiting from this new heightened consumer focus on the ingredients in their food are honest with respect to the representations they make. The system has worked, for the most part, by providing the public with additional information regarding the contents of the food they consume, while allowing companies to profit by charging more for foods that contain premium ingredients, or that remove ingredients perceived as unhealthy or potentially dangerous.

One such example has been products containing genetically modified organisms (“GMOs.”) A large segment of the public has come to feel that GMOs are unhealthy or unsafe, and are willing to pay a premium for products that do not contain GMOs. Companies have obliged by offering and promoting “non-GMO” products, usually at a premium, and consumer protection attorneys have filed lawsuits against companies who falsely claim to be offering “non-GMO” products. Setting aside for a moment the question of whether GMOs are actually unhealthy or unsafe (many of us living in California have benefitted greatly from the drought-resistant and pesticide-resistant grains and fruits that are “genetically modified”), the checks and balances of the system have worked – consumers are given the information necessary to decide whether or not they want to pay more for GMO-free foods, while the companies profit from selling those foods at a higher rate.

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The Latest on Employee Arbitration Agreements Sep 10, 2015

Court of Appeal Provides Guidance to Employers on Preparing Enforceable Employee Arbitration Agreements
By Gene Williams, The Maloney Firm, APC

The 1st District Court of Appeal shot down an employee arbitration agreement that was egregiously one-sided toward the employer and was forced upon the employee with no time to review it. In finding the agreement unconscionable and unenforceable, the Court set forth a number of guidelines that should help employers create employee arbitration agreements, or modify existing agreements, that stand up to judicial scrutiny and will be held enforceable.

In Carlson v. Home Team Pest Defense Inc., 2015 DJDAR 9447 (Aug. 17, 2015), the Court of Appeal upheld the trial court’s denial of the defendant’s motion to compel arbitration. The plaintiff, Julia Carlson, accepted an offer of employment from defendant Home Team Pest Defense. On her first day, Carlson was given access to the company’s electronic system that contained the company policies, including the agreement to arbitrate. However, Carlson was not given access to the dispute resolution policy, which set forth the arbitration terms. When Carlson complained that she did not have access to the policy, and that she did not feel comfortable signing the agreement without seeing the policy and negotiating the terms, she was told that she could call a telephone number “in a couple of weeks” to see if someone had a copy of the policy. She was advised, however, that she could not wait to review the policy before signing the agreement to arbitrate, and that refusal to sign would be considered a refusal to accept the job offer. Fearful of losing the potential job, as well as her unemployment benefits, Carlson agreed to sign the agreement.

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South Bay MCLE Series on September 17th – From Arrest to Trial Aug 17, 2015

Former Deputy District Attorney Dmitry Gorin will present on identifying and resolving criminal law issues in civil practice, providing examples of criminal cross-over problems from family law, civil litigation, and other practice areas. Space is limited. Please RSVP by calling 310.540.1505 or emailing

This presentation has been approved by the State Bar of California for 1.0 hour of MCLE credit.
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