Z Bayou, LLC et al v. WAFB, LLC, et al

Filing 72

ORDER AND REASONS denying 33 Motion to Strike ; denying 47 Motion to Strike. Signed by Judge Susie Morgan on 10/13/2016. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Z BAYOU, L.L.C., et al.
Plaintiffs

CIVIL ACTION

VERSUS

NO. 15-4384

WAFB, L.L.C., et al.
Defendants

SECTION: “E” (4)
ORDER AND REASONS

Before the Court are two Special Motions to Strike pursuant to article 971 of the
Lousiana Code of Civil Procedure filed by Defendants WAFB, LLC, Chris Slaughter and
Samantha Morgan (collectively, “WAFB”) and Defendant Benjamin Mintz D/B/A/
Minced Media, Inc. (“NOLA Defender”). 1 Plaintiffs oppose both motions to strike. 2 For
the reasons that follow, the Defendants’ special motions to strike are DENIED.
LAW AND ANALYSIS
In Henry v. Lake Charles Am. Press. L.L.C., the Fifth Circuit explained the
background and purpose of article 971:
A number of state legislatures have expressed concerns over the use (or
abuse) of lawsuits that have the purpose or effect of chilling the exercise of
First Amendment rights. These suits are commonly referred to as “strategic
lawsuits against public participation,” or “SLAPPS.” In response to the
growth of SLAPPS, some states have provided a procedural method – often
called a “special motion to strike” but known as an “anti-SLAPP motion or
“SLAPPback” – to weed out and dismiss meritless claims early in litigation.
. . Article 971 of the Louisiana Code of Civil Procedure provides one such
method. 3
Article 971 establishes a burden-shifting analysis for weeding out frivolous claims.
To succeed on an Article 971 motion, the defendant must first make a prima
facie showing that Article 971 covers the activity underlying the suit. That
is, the defendant must establish that a cause of action against him arises
R. Doc. 33; R. Doc. 47.
R. Doc. 51; R. Doc. 57.
3 Henry v. Lake Charles Am. Press. L.L.C., 566 F.3d 164, 169 (5th Cir. 2009).
1

2

from an act by him in furtherance of the exercise of his right of petition or
free speech under the United States of Louisiana Constitution in connection
with a public issue. If the defendant makes this showing, the burden then
shifts to the plaintiff to demonstrate a probability of success on his claim.
If the plaintiff fails to demonstrate a probability of success, the trial court
dismisses the claim. Otherwise, the trial court denies the motion and the
suit proceeds as it normally would. 4
Article 971(B) provides, “a prevailing party on a special motion to strike shall be awarded
reasonable attorney fees and costs.” 5
Defendants have failed to satisfy their burden in making a prima facie showing that
article 971 covers the activity underlying the suit. Under article 971, a defendant must
make an initial prima facie showing the matter arises from an act in furtherance of the
defendant’s right of free speech in connection with a public issue, as defined by the
statute. 6 Defendants allege their speech falls under part (c) of the statutory definition
which protects: “Any written or oral statement made in a place open to the public or a
public forum in connection with an issue of public interest.” 7 As the Defendants correctly
identify, “Whether Plaintiff’s claims are subject to a special motion to strike depends on
whether [Defendants’] speech was about an issue of public interest.” 8
Defendants argue “Louisiana courts broadly construe ‘an issue of public interest’
to include ‘any matter of political, social, or other concern to the community,’” 9 and that
“[t]he production of motion pictures and television programming is, by itself, a matter of
public interest.” 10 In addition, Defendants state that WAFB’s broadcast and NOLA
Id. at 170 (internal citations omitted).
La. Code. Civ. P. art. 971(B).
6 Id. at (A)(1).
7 Id. at (F)(1)(c).
8 R. Doc. 33-9, at 7; R. Doc. 47-1, at 5.
9 Id. (citing Kirksey v. New Orleans Jazz & Heritage Found., Inc., 2012-1351 (La. App. 4th Cir.), 116 So.
3d 664, 669).
10 Id. (citing Kronemyer v. Internet Movie Database, Inc., 150 Cal.App.4th 941, 949 (Cal. App. 2007);
Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4th 133, 142 (Cal. App. 2011)).
4
5

Defender’s publication regarding, “a movie production company’s failure to pay crew
members trying to make a livelihood in the motion picture industry in Louisiana,” is a
matter of public interest. 11 WAFB also argues that in particular, the film industry is a
public interest in Louisiana given that it is an “industry whose tax credit program has
been the subject of considerable interest in the media, the legislature, and the courts,”
and, “in this difficult economy, the news that numerous workers on a particular work site
say they were not paid tens of thousands of dollars is itself of public interest.” 12
In response, Plaintiffs allege that the subject of the Defendants’ broadcast and
publication fall outside the ambit of article 971 because they relate to a private dispute
between Plaintiffs and the hired film crew. 13
The Court agrees with the Plaintiffs’ analysis. Although article 971 “should be
construed broadly,” 14 the broadcast by WAFB and the publication by NOLA Defender do
not concern an issue in the public interest. Louisiana courts have interpreted the “public
issue” and “public interest” requirement as being the same as “public concern” in
defamation cases.” 15 In Kennedy, the Louisiana Supreme Court explained that matters
are of public concern if they relate “to any matter of political, social, or other concern to
the community. Whether speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the
entire record.” 16 In addition, the United States Supreme Court has explained that speech

R. Doc. 33-9, at 7; R. Doc. 47-1, at 5-6.
R. Doc. 33-9, 7-8.
13 R. Doc. 51, at 4-5; R. Doc. 57, at 4.
14 See, e.g., Kirksey, 116 So. 3d at 669.
15 See Lyons v. Knight, 2010-1470 (La. App. 3 Cir. 5/11/11), 65 So. 3d 257, 265 (citing Kennedy v. Sherriff
of East Baton Rouge, 2005-1418 (La. 7/10/06), 935 So. 2d 669, 677).
16 Kennedy, 935 So. 2d 677 n.6.
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may be considered a public concern when it “is a subject of legitimate news interest; that
is, a subject of general interest and of value and concern to the public.” 17
As explained in Herrera v. Medical Center Hosp., the Fifth Circuit has identified
categories of speech that are and are not issues of public concern. 18 The Fifth Circuit has
stated the following are categories of speech that touch upon the public concern:
associating with political organizations and campaigning for a political candidate, speech
made against the backdrop of ongoing commentary and debate in the press, and speech
related to racial discrimination. 19 On the other hand, the Fifth Circuit has determined that
the following categories are not of public concern: speech concerning a purely personal
labor dispute, such as a disagreement between an employee and an employer about the
conditions of employment, and challenges made by an individual to one’s work conditions
and the quality of the work environment. 20
The underlying subject of WAFB’s broadcast and NOLA Defender’s publication
was an employment dispute between private parties. Although the Defendants argue the
film industry is an important public issue in Louisiana, the Court must consider the
context in which the speech was made. For example, in Armington v. Fink, the court
looked to the article’s introduction to determine the purpose of the publishing. 21 The
court, in finding that the article presented an issue of public interest, stated:
According to its introduction, the article’s purpose in describing and
analyzing the events at Memorial Hospital in the days following Hurricane
Katrina is to consider questions raised by disasters like how limited
resources should be divided amongst patients and what is the line between
comfort care and mercy killing. The article asserts the importance of these

Snyder v. Phelps, 562 U.S. 443, 453 (2011).
Herrera v. Medical Center Hosp., 241 F.Supp.2d 601, 609 (2002).
19 See id.
20 See id.
21 Armington v. Fink, 2010 WL 743521, at *5 (E.D. La. Feb. 24, 2010).
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issues in light of proposed legislation to alter the standard of medical care
in emergencies. 22
Although the conclusion of the NOLA Defender article includes the statement that
“[s]tories of productions failing to make payroll circulate in the industry,” the following
line of the article states, “in actuality, the instances remain surprisingly rare even on
productions with relatively small budgets.” 23 In addition, although WAFB argues the
Louisiana film industry is an important issue in the public interest because of the state’s
tax credit program, WAFB’s broadcast never mentions the issue of tax credits or
controversies regarding the Louisiana film industry as a whole.
Courts have acknowledged that disputes between private parties can be issues in
the public interest. 24 In BCCL Enterprises, Inc. v. Rizzo, the underlying issue involved “a
private individual reporting an alleged theft of jewelry to the police.” 25 In determining
that the issue was in the public interest, the court reasoned, “If BCCL’s employees were
stealing items from its customer’s homes, it would implicate and concern anyone who
utilized BCCL’s services. Accordingly, we conclude that this matter was one of public
concern.” 26 In the case before the Court, the allegedly harmed parties ostensibly had
knowledge of the pay dispute prior to the broadcast and publication and were not being
informed of the issue by the broadcast or publication. Unlike the issues in Armington and
BCCL, the content and context of both the issue and the speech in question before this
Court convince the Court that the broadcast by WAFB and the publication by NOLA
Defender were not issues of public interst.

Id.
R. Doc. 40-1, at 4.
24 See, e.g., BCCL Enterprises, Inc. v. Rizzo, 2013-1624 (La. App. 1 Cir. 8/20/14) 2014 WL 4102467.
25 Id. at 3.
26 Id.
22
23

Defendants argue, “Courts have recognized that the production of motion pictures
and television programing is, by itself, a matter of public interest.” 27 Defendants cite two
California cases, Kroneymyer v. Internet Movie Database, Inc. 28 and Tamkin v. CBS
Broadcasting, Inc., 29 in support of their argument. 30 In response, Plaintiffs maintain
“The rule set forth in these cases, contrary to the argument by [the Defendants], is not
some broad rule of law applicable under all circumstances.” 31
The Court agrees with the Plaintiffs’ analysis of these cases interpreting the
California anti-SLAPP law. It is true that the Fifth Circuit has found that in the context of
determining federal jurisdiction, appellate review, and the burden shifting procedure, the
California anti-SLAPP law, California Code of Civil Procedure § 425.16, is similar to article
971. 32 There is a distinction, however, in the interpretation of “public interest” under the
respective statutes. California courts have determined that although “Section 425.16 does
not define ‘public interest,’ . . . its preamble states that its provisions shall be construed
broadly to safeguard the valid exercise of the constitutional rights of freedom of speech
and petition for the redress of grievances.” 33 When interpreting the California statute,
some courts have held “an issue of public interest is any issue in which the public is
interested. In other words, the issue need not be ‘significant’ to be protected by the SLAPP statute – it is enough that it is one in which the public takes an interest.” 34
Louisiana courts interpreting article 971, however, have determined that in the express

R. Doc. 33-9, at 7; R. Doc. 47-1, at 5.
Kroneymyer, 150 Cal. App. 4th 941.
29 Tamkin, 193 Cal. App. 4th 133.
30 R. Doc. 33-9, at 7; R. Doc. 47-1, at 5.
31 R. Doc. 51, at 7.
32 See, Henry, 566 F.3d at 168-69.
33 Id. (internal citations omitted).
34 Tamkin, 193 Cal. App. 4th at 143 (internal citations omitted).
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statement of intent for the statute, the legislature the reason behind article 971 is “that it
is in the public interest to encourage continued participation in matters of public
significance.” 35 In Yount, the court found this statement of intent demonstrated that the
legislature only wanted the “extraordinary procedural remedy” provided by article 971 to
apply to significant public issues. 36 The court reasoned that a broader interpretation
would allow any party to “defame or invade the privacy of a person involved in a divorce
proceeding, traffic violation, child custody dispute, marriage, mortgage registration,
passport application, or driver’s license renewal and be immunized from legal
repercussions of damage to others.” 37 As a result, the Yount court found statements made
in connection with a private domestic proceeding were “not a matter of public significance
for the purpose of applying the Louisiana anti-SLAPP protections.” 38
In cases in which courts have determined an issue is of public interest under article
971, the courts have further substantiated their findings beyond merely stating the public
is interested in the issue. For example, in Kirksey, the court found issues concerning the
annual Jazz Festival are of public concern because the festival “is one of the premier
entertainment events each year in the City of New Orleans, contributing millions of
dollars each year to the City’s economy.” 39 Similarly, in Baxter v. Scott, the court found
blog posts made by a former university professor about the operations of a public
university “clearly pertained matters of public interest,” because “[u]ndoubtably, the
public has a great interest in how [a public university] that both receives public funding
and contributes to the economy of the area in which it is located, is governed and whether

Yount v. Handshoe, 14-919 (La. App. 5 Cir. 5/28/15), 171 So. 3d 381, 388 (emphasis in original)
Id. at 387-88.
37 Id. at 387.
38 Id. at 390.
39 Kirksey, 116 So.3d at 669.
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it is having financial difficulties that are possibly being misrepresented to the public.” 40
As a result, article 971 requires a higher threshold showing of public interest than its
California counterpart.
The California cases cited by Defendants are distinguishable from to the case
currently before the Court. In Kroneymyer, the court determined that the listing of the
credits, on a website visited by 35 million people each month, for a very popular film, “My
Big Fat Greek Wedding,” was “a matter of considerable public interest.” 41 It is clear that
the court’s finding was based on a context specific inquiry and was not, in turn, a broad
holding that all stories about the film industry are of significant public interest. The court
in Kroneymyer explained that the plaintiff’s complaint actually concerned three projects,
two smaller films, “Wishcraft” and “Stand and Be Counted,” in addition to “My Big Fat
Greek Wedding.” The court, however, did not reach a decision as to whether published
credit lists regarding the first two films involved issues in the public interest after finding
that the plaintiff “did not make submissions to [the defendant] concerning either.” 42
Whereas, with respect to “My Big Fat Greek Wedding,” the court explained that the film
was described as “a successful independent motion picture,” and stated, “On this record,
we conclude that . . . “My Big Fat Greek Wedding” was a topic of widespread public
interest.” 43 In Tamkin, the court, interpreted the California statute to apply to “any issue
in which the public is interested.” 44 The court, in dealing with alleged defamatory
statements released by the popular television show, CSI, determined “the public was
demonstrably interested in the creation and broadcasting of [the] episode [in question],

Baxter v. Scott, 37,092 (La. App. 2 Cir. 5/16/03), 847 So. 2d 225.
Kroneymyer, 150 Cal. App. 4th at 945.
42 Id.
43 Id. at 949.
44 Tamkin, 193 Cal. App. 4th at 143.
40
41

as shown by the posting of the casting synopses on various Web sites and the ratings for
the episode.” 45
The Plaintiffs argue the underlying issue of the case before this Court is a private
employment dispute between private parties and not a matter of significant public
interest. 46 Even in the context of a public employee, courts have found “the jurisprudence
is well-settled that speech regarding the topic of employment disputes – employment
grievances, personnel disputes, and working conditions – generally does not involve a
matter of public concern.” 47 In Lozovyy v. Kurtz, the claim involved speech by members
of two different public universities and the alleged accusation of theft or destruction of
data from a federally funded program involving a collaboration of scientists across the
nation and the world. 48 The Lozovyy court found that this scenario fit within the “public
issue” requirement of article 971 because “the legislative history of Article 971 requires
that this Court give the statute a broad construction, thereby requiring its application in
the event of a close call like this one.” 49 Unlike Lozovyy, the case before this Court is not
a “close call” and therefore does not require a broad construction of article 971.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Defendants’ special motions
to strike are DENIED. 50 The Court finds that the Defendants have not met their burden
of proving that the suit arises from the exercise of their right of free speech in connection

Id.
R. Doc. 51, at 4-5; R. Doc. 57, at 4.
47 McGowan v. Hous. Auth. Of New Orleans, 2012-1418 (La. App. 4 Cir. 3/27/13, 113 So. 3d 1143, 1156)
(citing Connick, 461 U.S. at 147-48).
48 Lozovyy v. Kurtz, 2015 WL 331804, at *8 (M.D. La. Jan. 26, 2015) rev’d on other grounds, 813 F.3d
576 (5th Cir. 2015).
49 Id.
50 R. Doc. 33, R. Doc. 47.
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46

with a matter of public interest as required by article 971 of the Louisiana Code of Civil
Procedure.
New Orleans, Louisiana, this 13th day of October, 2016.
__________ __ ________ _________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE