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Hunter Misses the Mark in Anti-SLAPP Case

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By William Vogeler, Esq. on February 17, 2017 12:59 PM

Shooting down a motion to strike, the U.S. Ninth Circuit Court of Appeals lyrically laid out a case between a hunter and an international sport hunting club.

The court told the story of Dr. Lawrence Rudolph, who was once an award-winning member of the Safari Club. He rose to the top of the 50,000-member club, but then was exiled for allegedly breaching his duties to the organization.

"That's when the season opened," wrote Judge Richard Seeborg in an opinion notable for its many hunting references as much as its ruling.

Litigation Season

Rudolph sued the club for defamation, and then the club sued him for secretly recording its president during the litigation. A trial court denied Rudolph's motion to dismiss privacy claims against him under California's Strategic Lawsuit Against Public Participation (SLAPP) laws, which protect individuals from lawsuits for exercising their free speech rights.

"On appeal, Rudolph seeks to line up the perfect shot, arguing all three claims must fail because there can be no objectively reasonable expectation of confidentiality in a conversation that occurs in a public place," Seeborg wrote. "Rudolph's marksmanship, apparently on target in the tundra, here is wide of the mark."

Rudolph's anti-SLAPP motion was based on recordings he made and then released on the internet to "expose" the motives of the club. Rudolph made the video and audio recordings during a lunch with John Whipple, his erstwhile friend and then president of the club. The problem for Rudolph was, Whipple didn't know he was being recorded.

Missed the Mark

Opposing the motion, the club argued that Rudolph could not hide behind the anti-SLAPP law because he broke a criminal law by making the surreptitious recording. The appeals court concluded that Rudolph had a right to file the motion anyway, but that the club had shown a probability of success on the merits.

The appeals court said Rudolph "missed the mark" in challenging the court's conclusion that the club could win, leaving in a footnote a link to Rudolph's tell-tale video. At the appellate level, the judges said, the club needed only to make a prima facie showing of success.

The case will go back to the trial judge for further proceedings on the remaining claims. Some critics, however, found the decision more informative than entertaining.

"Maybe it's just me, but I found all those hunting references distracting and not worth much humor value," said law professor and blogger Shaun Martin. "The fact that the underlying humor involves killing living things (and translating that to the ostensible hunting of humans) probably doesn't help either."

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