You are on page 1of 7

USA

2003 Novartis'
found,
go orchestrated effort hepatitis,
engaged develops
Sciences, Corporation, A.
above To
California The
San
LONDON lavINK HONG BEIJING
to
the
Francisco,
Honorable
to
the
to
Foundation
action,
there
Chief
EONG
Interest
September
express
in
homes
important
and
headquarters
an
Supreme
an
CENTUUcm

350 McAllister
was
LOSANG&La
unlawful
organization
is
Justice
is
we
unlawful
a CA
Ronald
required
ofNovartis
or
dissatisfaction
sufficient
biopharmaceutical
write
Re:
Novartil
of
December 20, 2006
94102
vaccines
Court
Street
and
2004,
for
Cruelty
in to
George,
campaign
the
by
and the Associate Justices
August
respond
that
Depublication
evidence
when law
employees
Associate
Vaccines
and
October
Novartis
USA,
related
Q'MELVENY
to
Chief
blood
of
to
the
to
conduct
2003.
company
to
harass,
Inc.
the
trial
Justice
TELEPHOQ
to
Justices:
and
support
testing
had
in
12, 2006)
December
animal (CaL
(Calif.
the
court
demonstrations
This
testing
Diagnostics,
worked
FACSIMJ1.E

intimidate
opinion of the court of appeals in this matter.
middle
headquartered
products
that
Rule
unlawful
issued
WWW.ODIJD.C08

testing
CL
(~5)
&
275 Battery

on
0

8,
SHAC
with
of
of
of
MYERS
animals.
(415)

2006
~-s,oo
98.f-s,Ol

and
a App.
San Francisco, California

Court
the
for
methods
preliminary
Street

in
IDe.
and
.
USA
terrorize
the
diseases
night,
letter
Nos.
in
terrifying
979(b))
EmbarcaderoCenterWelt

past.
Emeryville,
Starting
was
LLP
used
from
A107538
break
Novartis'
including
9ofW-33OS

involved
injunction
Specifically,
of
by
called"homevisits."whereby
the
conduct
in
windows,
Huntingdon
2003, Electronic
California. &:
A108292,flled
AIDS
in employees
masked
against
continued
the
SHAC
SHAC
vandalize
bombing
and
Frontier
dbookin@omm.com

Life
SJ1JCON
walTl:a,

SHAC
Novartis
USA
Novartis Vaccinesand Diagnostics,Inc. ("Novartisj, fonnerly known as Chiron
warn;I.S

USA
in
from
individuals
Novartis Vaccines and Diagnostics, Inc. v. Stop Huntingdon Animal

ADDIESS
an
WASHINGTON,

au. P1L£

V
of
Response and Objection to Electronic Frontier Foundation's Request

property,and shoutthreatsand epithetsthroughbullhorns. In addition, asthe court of appeals


AUZY
E-MAIL

D.C.
On behalf of Novartis Vaccinesand Diagnostics,Inc., the plaintiff and respondentin the

would
(415) 984-8786

("EFF') and to object to EFF's request that the Court depublish the October 12,2006
NU"."
TOKYO
NEW YOU

DlaECT DIAL
NEWPORTBEACH

SHANGHAI

151800-000"
planted.
USA
cases Procedure USA nor publishing
on concert addresses employees conduct website, of
and defendants and
B.
SHAC
behalf
an
violence. its
appealed filed
similar
order
employees
The
As
with
some
are
Addressing
1.
US~
of
issues
trial court.
Section a
the
The Honorable

private
from
in
Opinion
immune
special
its
preventing
SHAC
cannot engage
to
cases, however,
an
limited
The
recent
Employers,
their members.
that
employees
Novartis
based
terrifying
related
Before
effort
from
information
425.16.
lawsuit
decision
Rights
motion
USA,
from
these
criminal
Should
testing
on
O'MELVENY" MYERSLLP

to
these
to
SHAC
Novartis,
in
the
protect
have failed
from
the
prosecution.
and
sought
real
in
The
and
to
order
to
along
erroneous
on
an unlawful
Not
convictions
strike Communications
Terrorists.
be
unlawful
on
USA
dangers,
trial conducting
their
animals,
effort
itself
it
wholly
to
the be
injunctive
with
was
protect
the
court
from
Depublished.
SHAC
Employees,
to
On February25, 2004, Novartis
and
acts
the
belief
Novartis,
Novartis complaint,
harassment.
unclear
successful
protect
has
of
denied
in anunlawfulconspiracy
speaking
filed
its
trial
Ronald George, Chief Justice and the

of
"home
their
relief
seven
USA
a
that
employees
harassment.
strong
court's
that
Decency
employees
employees
clarified
SHAC
which
such
preventing
website.
Against
visits,
SHAC pursuant
about
due
an
The
and
decision
unlawful
employer
to
a complaint
continues
"
to orchestrate
USA's
from Act
against
focusest should remain published for at least five reasons.

its opinion,
continuing
that
USA
making
the
Escalating
from
from
The
to
views
AssociateJustices,

("the
SHAC
tactics
organizations
&cD
California
members
to
anti-SLAPP
lawsuit
activities,
SHAC
unlawful
could
vigilante
harassing
grant which
to
Actt')
of
on
USA,
of
interest
be
harassment,
animal
December

Violent
pursue
SHAC
USA
required
neither
provides a significant means of relief for employers and employees alike.
a
upon
only
demonstrates, Code
preliminary
harassment
activism.
coordinated
and
phone
like
motion,
in
rights. and
minimally
which
USA,
injunctive
those
Acts
of
protecting
sought
SHAC
by
"Doe"
Civil
intimidation,
calls,
The Novartif Opinion Created Significant Precedent that Protects
20,2006- Pa&e2

law
of
These
and
and acting
SHAC
EFF
damages
Animal
through
the
USA
to
BOO
relief
SHAC
other
threat to employees' safety is real: individuals have been threatened and bombs have been
itself
The Novartis decision is important for California employersseekingto protect their

v. Stop Huntingdon Animal Cruelty Us.4, Inc., 129 Cal. App. 4* 1228 (2005). Novartis now
Biomedical research companies and research institutions have been actively litigating
in
experienced as a direct result of the employee's affiliation with the employer. See City of Los
doing so would encourage purported "protestors" to engage in criminal tactics, similar to those

like-minded groups, that use anonymous organizations to hide and orchestrate the illegal acts of
Novartis writes to object to depublication of the Novartis v. SHAC USA opinion because

a
Angele.fv. .AnimalDefen.feLeague,135Cal.App.4. 606(2~; Hlmtingdon Life Sciences,Inc.
injunction. The Novartis court consolidatedthesetwo appealsand affirmed both decisionsof the

theseactivitiesyet claimimmunitybased
O'MELVENY &. MYEU LLP
The Honorable Ronald George, Chief Justice and tbe Associate
Justices,
December
20,2006- Page3

on argumentsthat its involvement constitutedfree speech. The court's careful decision clarified
that neitherthe anti-SLAPP statutenor the First Amendmentcould be usedto protect activities,
like
those
employed
by
SHAC
USA,
that
are
illegal
as
a
matter
of
law.
The
opinion,
which
involves a legal issueof continuing public interest,significantly contributesto the legalliterat\R
by reviewing the developmentof the anti-SLAPP statuteand its applicability to lawsuits brought
to stop illegal activity. 1

2.
The
Analysis
of
the
Communications
Decency
Act
was
of
Minimal
Significance in Light of the Facts, Circumstances, and Legal Issues on
AppeaL

the triaJ'com1 erred in denying SHAC USA's


The primary issue on appeal was whether
motion In the com1's nineteen page opinion, where it fully
to strike Novartis' complaint
analyzed the California anti-SLAPP statute and its application after the recent California
Supreme Com1 casesFlatley v. Mauro, 39 Cal. 4* 299 (2006), and Sou.biP v. Law Offices of
Herbert Haft/, 39 cai. 4* 260 (2006), as well as legal issues related to standing and jurisdiction,
only one short paragraph is dedicated to SHAC
USA's
Communications
Decency
Act
argument.
This topic was neither a strong component of the briefings nor a significant area of discussion at
oral
argument,
as
the
court's
brief
discussion
and
dismissal
of
the
argument
demonstrates.
To
depublish an entire decision, especially one as significant as Novartis, in light of the com1's brief
analysis of an inapplicable argument is unfounded.

3. The Court Correctly Applied the Communications Decency Act.

EFFvoicesa singlecomplaint:
the
Novartis
decision
"fails
to
consider
whether
SHAC
USA
is
a
'user'
protected
by
Section
230."
EFF
Letter
at
2.
EFF
urges
depublication
becau..-~
the subsequent California Supreme Court case of Barrett v. Rosenthal, 40 Ca!. 4111
33 (2006),
granted
"users"
immunity
under
the
Act,
and
the
Novartis
court
did
not
explicitly
state
whether
SHAC
USA
was
such
a
"user."
This
request
is
misguided
in
light
of
the
Novartis
court's
full
analysis
of
SHAC
USA's
conduct.
The
court's
complete
opinion,
rather
than
the
single
paragraph
on:which
EFF
focuses,
demonstrates
that
the
courtdid.not
consider-8HAC
USA
a
"user" as describedin Barrett. EFF's concernsaboutthe opinion arethereforeunwarranted.

In Barrett, this Court consideredwhetheran individual who postedmaterial, authoredby


a third person,to the websitesof two unrelatednewsgroupscould be liable for the allegedly
defamatorystatementsincluded in the materials. Barrett,"51Cal. Rptr. 3d at 59. Thesespecific
facts
of
Barrett
were
the
bases
of
the
Court's
analysis
of
whether
an
individual
in
this
circumstance
could
be
afforded
protection
and
immunity
under
the
Act.
Novartis
is
factually
and
materially
distinguishable
from
Barrett,
and
the
full
opinion
demonstrates
that
the
court
properly
dismissed
the
argument
that
SHAC
USA
was
a
"user"
as
that
tenn
was
defined
and
applied
in
Barrett.
As
the
Novartis
court
explained,
SHAC
USA
posted
material
to
its
own
website
that
encouraged
conduct
that
was
"illegal
as
a
matter
of
law."
SeeCalifornia RuJeof Com1976 (outlining necessaryrequirementsfor publication).
AppelJant's
2
ruling
appellate
Novartis
orchestrate
decision
court users."
the
reports activities unlawful USA website, Novartis,
website
Novartis
Appellant
unlawful
considered.").
found
also
in
The
EFF
EFF
written
with
will
Barre"
ruling specifically
decision
com
SHAC tactics.
Opening that
5.
4.
143
published
the
that
Letter
argues
tactics
deter
which
it
Cal.
unlawful
The
have
by
USA
will
considered
did
when
v.
Brief
Id
the CQ~~c~tipM~.ncy~~
is
third-parties
at
organizations
App.
Rosenthal
that
not
Opinion's
he/she
not
employed.
explicitly
No
in instructions
naming
at
3.
Honorable

at
a
Authority.
conflict
consider
1296-97.
O'MELVENY It MYEU LLP

depublication
chill
party
44-45,
Effect
But
conduct 4d1
Ronald

SHAC
has
at
argued there
ordinary
the
is
like
thus
1296.
employees~ using its website to
Brief
no
as
on
with
post
Id
unfounded.
places
SHAC
on
like
of
George,

Furthermore,
USA
SHAC
the
affiliation,
If NovartiS' Conflicts
is
SHAC
Law-Abiding
in
Chief

others.
Thus,
how
Barre"
no
its
its
Discussion
CotD1
SHAC
Unlike
users
encourage and orchestrate illegal acts.
is
the

opening
own
indication
and
USA
necessary
to
USA
USA
considered
it
exclusively third-party contenton a website
conduct
Far
perpetrator

from
Justice

dates
due is
can
Although
and

material,
USA
Associate
an
SHAC
to
clear
brief
.S_imp-lyp~~e
argued
the

conspires
when
from
individual
be
be
to
of
engaging
Inteme~
for
from
that
in
the
that
a
liable
this
the
~_of~
from
unlawful
USA
"user"
addressing
order
activists
Justices,
SHAC
and
Novartis
in
f~
Novartis
SHAC
of

argumcm.
posting
Communications
its
to
the
for
unlawful

the
posted
UseR.
who
in
to
conduct
opening
in
USA
USA
defamation.
I)e(emba-
court's
the
protests
limit
ratified
dissimilarities
in~~
to
the
does materials
bas posts
Chewon
defamatory
"target"
exchange
was
its
Barrett
posted
with Barrett, Barrett is Clearly
acts

the
individuals exchanginginformation for the pmposesof discussion.
~
unlawful
brief}
own
not
description
a
material third-party
and
20,
cannot_othe~se
"user"
"danger
against

US.A.,
concede
or
to material
employees.
2006
material
sense,
engage
Decency
To
of
will
incite
To
as
statements
discussed
acts,
ideas.
-
the
lnc.
defined
of
that
Page
the
have,
ofSHAC
i.e.
material
that
others,
contrary,
v.
and in
to
authored
the Controlling
and
contrary,
its
4
Act
WorkD"6'
posting
other
its
Instead,
in
the
Id
such
above,
D8n'0W
uses
the
posted
own
will
to
to
effect. As discussed above, the Novartis opinion did not hold that individuals who publish

SHAC
interpretation of [the Act] will lead to unwarranted self-censorship and timidity by internet

CompoAppeaLr Bd., 19 Cal.4th 1182, 1195 (1999) (It is "axiomatic that language in a judicial opinion is to be
Act,
party can be usedas evidenceof that conspiracy. Unlike ilie concernsthat EFF voices,the

USA's
an
immunizean-'DnlawfutmnspirEy. This determinationruns no-risk of chilling the speechof
the
by
its
a
only
the
the
the internetto orchestratethoseacts,can neitherhide behindFirst Amendmentprotectionsnor
websiteand its ratified postingsto that websiteto further that conspiracy,the statementsof the

to
Novartisandits

understoodin accordancewith the factsand issuesbeforc the c:ourt. An opinion is not authority for propositionsnot
third parties,it ratified thosepostingsby taking credit for the conductthat occurredand praising

a public website,the Novartis opinion establishesthat partieswho commit unlawful acts,and use

EFF's concerns that the Novartis decision may overshadow the analysis of the subsequent
O'MnVENY.
Mnu
UP
The
Honorable
Ronald
George,
Chief
Justice
and
the
Associate
Justices.
December
20,
2006
-
Page
S
even
if
there
were
such
a
conflict
it
is
clear
that
the
most
recent
case
from
the
highest
court
is
the
controlling authority. Barrett not only post-dated the Novartis opinion, it addressed
Communications
and
Decency
Act
issues
in
detail,
whereas
the
Novartis
court
had
no
need
to
do
discusses these complicatedissuesin a
so.
To
assume
that
a
lower-court
opinion
that
briefly
cursoryfashionwould function as precedent,when the SupremeCourt of California has clearly
spokenon the issue,is unfounded.

c. Conclusion.

For the reasonsstatedabove,Novartis Vaccines and Diagnostics,Inc. respectfully


requests
that
the
Court
reject
EFF's
request
to
depublish
Novartis
v.
SH.4C
Us.,(.
6/.,,~--
Vamel
H.
'Boom
Attorney for Novartis Vaccines

&
Diagnostics,
Inc.
cc: Clerk of the Court of Appeal, First District, Division 1
Goldowitz, Esq.
Mark
Shannon
Keith
Kurt
B.
Opsahl
O'MELVENY II. MYERS UP

The Honorable Ronald George, Chief Justice and the Associate Justices, Decemba' 20, 2006 - Page 6

CERTIFICATE
OF
SERVICE
I, DoreenBordessa,declare

I am a residentof the Stateof California and over the ageof eighteenyears,and


not
a
party
to
the
within
action;
my
business
address
is
Embarcadero
Center
West,
275
Battery
Street,
San
Francisco,
California
94111-3305.
On
December
20,2006,
I
served
the
within
documents:

LEI-lbR TOmE HONORABLE


RONALDGEORGE,
CHIEF
JUSllCE AND mE ASSOCIATE JUSllCES CALIFORNIA
SUPREME COURT

by placing the document(s) listed abovein a sealedenvelopewith postagethereon


fully prepaid,in the United Statesmail at SanFrancisco,California addressedas
set
forth
below.
I
am
readily
familiar
with
the
finn's
practice
of
collecting
and
processingcorrespondencefor mailing. Under that practiceit would be deposited
.
with the U.S. Postal Serviceon that sameday with postagethereonfully prepaid
in the ordinary courseof business.I am awarethat on motion of the party served,

serviceis presumedinvalid if the postal cancellation-dateor postagemeter dateis


more
than
one
day
after
date
of
deposit
for
mailing
in
affidavit
Shannon Keith
California
Court
of
Appeal
F irst District
The
A
nima]
Law
Office
Division 2 3824 18d1 Street, #201
350McAllister Sum
San
Francisco,
CA
94114
San
Francisco,
CA
94612
Mark
Goldowitz
Kurt
B.
Opsahl,
Esq.
California Anti-SLAPP Project Electronic Frontier Foundation
2903 SacramentoStreet 454 Shotwell Street
Berkeley,
CA
94702
San
Francisco,
CA
94110
O'MELVENY &. MYERS LLP
The HonorableRonaldGeorge,Chief Justiceand the AssociateJustices,December20, 2006 - Page7

I declareunderpenalty of perjury under the laws of the Stateof California that the

aboveis true and correct.


Executed
on
December
20,
2006,
at
San
Francisco,
California.
1i1~~~~
Doreen Bordessa