Kim v. Coach, Inc, et al

Filing 52

NOTICE of Compliance With May 4, 2011 Order by Defendants Coach Services Inc, Coach, Inc.. (Attachments: # 1 Response to Motion to Strike, # 2 Dec of Macaluso, # 3 Motion to Strike Class Allegations, # 4 Proposed Order Granting Motion to Strike, # 5 Dec of Axilrod, # 6 Dec of Macaluso, # 7 Reply in Support of Motion to Strike, for Sanctions, # 8 Appendix 1 to Reply, # 9 Appendix 2 to Reply)(Keehnel, Stellman)

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THE HONORABLE RICARDO S. MARTINEZ

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
GINA KIM, on behalf of a class consisting of ) Cause No. 2:11-CV-00214 RSM
herself and all other persons similarly situated, )
) REPLY IN SUPPORT OF MOTION TO
Plaintiffs, ) STRIKE AND FOR SANCTIONS
) PURSUANT TO WASHINGTON’S ANTIvs.
) SLAPP STATUTE, RCW 4.24.525
)
COACH, INC., a Maryland corporation, and ) NOTED FOR CONSIDERATION APRIL 1,
COACH SERVICES, INC., a Maryland
) 2011
corporation,
)
) [ORAL ARGUMENT REQUESTED]
Defendants. )

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SUMMARY

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After counsel filed the present anti-SLAPP motion against Coach’s defamation lawsuit,
Coach attempted to eliminate the offending SLAPP claims through amendment. Thus, Coach
has essentially admitted that its defamation lawsuit against opposing counsel constituted a
SLAPP. Coach now seeks to avoid the consequences for its violation of Washington’s public
policy and abuse of the judicial process.1

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In arguing that this amendment immunizes them from anti-SLAPP sanctions, Coach
relies upon authority that was recently overturned by the Ninth Circuit. Coach failed to inform

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Coach waited until the last moment to attempt to “amend away” its conduct. The amendment was filed after
business hours on the last day on which Coach could so amend.

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Cause No. 2:11-CV-00214 RSM
REPLY IN SUPPORT OF MOTION
TO STRIKE AND FOR SANCTIONS - 1

CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WA 98119
[phone]

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the Court of this directly on point and adverse authority, Northon v. Rule, Ninth Circuit Docket

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No. 07-35319, Order, January 18, 2011.2 This case directly contradicts and overturns the basis

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of Coach’s legal argument.
Coach also ignore directly on point California case law making clear that their

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amendment does not immunize them from SLAPP sanctions. See, e.g., Sylmar Air Conditioning

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v. Pueblo Contracting Services, Inc., 122 Cal. App. 4th 1049 (2004). In short, Coach’s legal

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arguments are plain wrong, and the applicable authorities -- ignored by Coach in their

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submission -- unanimously support the SLAPP Defendants’ present request for sanctions.
It should also be noted that Coach seeks to “have its cake and eat it too.” In its eleventh-

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hour Amended Answer, Coach continues to speciously and repeatedly accuse Plaintiff’s counsel
of defamation. Answer, Docket No. 6 at 13-16. Coach also spends over 60% of its Opposition
Brief arguing that this Court should rule, in Coach’s favor, on the SLAPP issues. Opposition,
pages 7-19. Presumably, Coach will promptly re-file the defamation claims against opposing
counsel if the Court so rules. Coach therefore asks this Court to rule in its favor on SLAPP,
while at the same time claiming that it legally immune from an adverse ruling on SLAPP.
Coach tried to make the SLAPP issue “go away” only after we undertook the burden and
expense of preparing our anti-SLAPP motion. In explaining this conduct, Coach now admits that
the defamation counterclaims against opposing counsel have become a “huge distraction[.]”

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Opposition at 7, n. 1. Indeed they have. Avoiding such “huge distractions” is the very purpose

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of Washington’s anti-SLAPP statute. Washington’s legislature said, unanimously: “SLAPPs are

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typically dismissed as groundless or unconstitutional, but often not before the defendants are put

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to great expense, harassment, and interruption of their productive activities.” RCW 4.24.525,

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Findings – Purpose. The anti-SLAPP motion to strike is therefore intended “to avoid the

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potential for abuse in these cases.” Id. By its own admission, Coach has already caused exactly

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the harm that the anti-SLAPP statute is meant to prevent. It should be held to account this.

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Northon v. Rule, Ninth Circuit Docket No. 07-35319, Order, January 18, 2011, for publication (9th Cir. 2011).
The Northon decision is attached as Appendix 1 to this Reply Brief.

Cause No. 2:11-CV-00214 RSM
REPLY IN SUPPORT OF MOTION TO
STRIKE AND FOR SANCTIONS - 2

CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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In the absence of valid authority, Coach relies upon self-congratulatory sports analogies.

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Opposition at 7. But to the undersigned counsel, who were sued for defamation for exercising

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first amendment rights, this defamation lawsuit was not viewed a game. Suing opposing counsel

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in the middle of ongoing litigation, in violation of Washington’s anti-SLAPP statute, is a serious

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matter.
ARGUMENT

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A.

Coach’s primary legal argument is that they have an unfettered right to amend their

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The Anti-SLAPP Motion is not Moot.

counterclaims to immunize them from Washington’s anti-SLAPP statute. In support of this
argument, Coach relies on Verizon Del., Inc. v. Covad Comm. Co., 377 F.3d 1081 (9th Cir. 2004)
for the proposition that an anti-SLAPP motion is mooted by an amendment removing the
offending claims. See Coach, Inc.’s Opposition to Special Motion to Strike and for Sanctions
(“Opposition”), at 4-7.3 Unfortunately for Coach, Verizon is no longer good law. Recently, the
9th Circuit overruled sub silentio the entire reasoning of Verizon.4
Federal courts have long adhered to the Erie5 doctrine. Under Erie, “federal courts sitting
in diversity apply state substantive law and federal procedural law.” Freund v. Nycomed
Amersham, 347 F.3d 752, 761 (9th Cir. 2003)(quoting Gasperini v. Center for Humanities, Inc.,
518 U.S. 415, 427 (1996)). In essence, the Erie doctrine “guarantees a litigant that, if he takes

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his state law cause of action to federal court… the result in his case will be the same as if he had

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brought it in state court.” Chambers v. Nasco, 501 U.S. 32, 53 (1991). To summarize, when a

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state law is deemed “substantive” for the purposes of Erie analysis, it is controlling in federal

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court. If procedural, then federal procedural rules take precedence over any directly conflicting

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state procedural rules.

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Coach also relies upon Arata v. City of Seattle, 2011 WL 248200 (W.D. Wash.), decided by Judge Lasnik in
January, 2011. In Arata, Judge Lasnik simply applied Verizon. Based on the timing of Arata, however, it is clear
that Judge Lasnik was never made aware of Northon v. Rule, and that this Ninth Circuit ruling was never presented
to him for consideration.
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It is unclear to counsel why Coach did not bring to the Court’s attention the fact that Verizon has been overruled in
relevant part.
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Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).

Cause No. 2:11-CV-00214 RSM
REPLY IN SUPPORT OF MOTION TO
STRIKE AND FOR SANCTIONS - 3

CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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The Verizon case involved an application of Erie based on a now-overruled

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characterization of anti-SLAPP statutes as “procedural.” Evaluating California’s anti-SLAPP

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statute, the court wrote “[w]e have also cautioned that ‘[p]rocedural state laws are not used in

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federal court if to do so would result in a direct collision with a Federal Rule of Civil

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Procedure[.]’” Verizon Delaware, Inc. v. Covad Communications Co., 377 F.3d 1081, 1091 (9th

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Cir. 2004). Based on its characterization of anti-SLAPP statutes as merely “procedural,” the

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Verizon court declined to entertain an anti-SLAPP motion to strike following the amendment of

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an offending complaint. That panel found that to do so would create a direct collision with Fed.

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R. Civ. P. 15(a), and that under Erie, federal procedure would control over conflicting state

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procedure. Id. This is the portion of the Verizon decision upon which Coach mistakenly relies.
Opposition at 4-7.
However, the Ninth Circuit has recently re-examined the Erie doctrine as it relates to
state law anti-SLAPP remedies. See Northon v. Rule, Appendix 1. In Northon, the Ninth Circuit
observed that “[s]tate laws awarding attorneys’ fees are generally considered to be substantive
laws under the Erie doctrine and apply in federal district court[.]” Northon at 3 (emphasis
added). The court held: “a special motion to strike and the attorneys’ fee provision in
California’s anti-SLAPP statute, which allows a prevailing defendant on a motion to strike to
recover attorneys’ fees and costs, protect substantive rights and apply in federal court.” Id.

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(emphasis added). The court acknowledged that, like Washington, Oregon’s anti-SLAPP statute

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“was modeled after California’s.” Id. Evaluating whether under Erie, a SLAPP sanction award

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was governed “by state or federal law,” the court found that Oregon’s anti-SLAPP statute

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constituted substantive law for the purposes of Erie analysis. “The entitlement to fees and costs

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enhances the anti-SLAPP law’s protection of the State’s ‘important, substantive’ interests.’” Id.

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Therefore, the SLAPP statute applied in federal court despite a claimed conflict with federal law.

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Because the Ninth Circuit has held that anti-SLAPP remedies are substantive rather than

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procedural, an anti-SLAPP motion can not be preempted by an alleged conflict with Fed. R. Civ.

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P. 15(a), as Coach mistakenly contends. Coach’s legal rationale – that under Erie it could

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Cause No. 2:11-CV-00214 RSM
REPLY IN SUPPORT OF MOTION TO
STRIKE AND FOR SANCTIONS - 4

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CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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“moot” the anti-SLAPP sanctions simply by amending – is faulty.

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B.

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With the Erie question conclusively resolved, the real question before this Court is clear:

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Coach’s Eleventh-hour Amendment Does Not Negate Washington’s Anti-SLAPP
Statute.

applying state law, does an amendment removing SLAPP claims, made after the filing of an antiSLAPP motion for sanctions, protect the SLAPP plaintiff from those sanctions?
No Washington court has addressed this issue. But Washington’s federal courts have
recognized that because Washington’s anti-SLAPP provision is similar to California’s, the
federal courts look to California precedent as persuasive legal authority regarding the application
of Washington’s anti-SLAPP statute. Aronson v. Dog Eat Dog Films, 738 F. Supp. 2d 1104,
1109-10 (W.D. Wash. 2010); Castello v. City of Seattle, Western District of Washington Docket

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No. 10-1457 MJP, Order, November 22, 2010.6 Indeed, Coach embraces this point in its own

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Opposition brief. Opposition, 7-8.

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California case law is entirely clear that a party who dismisses or amends claims out of a

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case after an anti-SLAPP motion has been filed remains subject to sanctions under the anti-

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SLAPP statute. Coach’s tactic of last minute amendment, seeking to undo its SLAPP conduct,

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does not protect it from anti-SLAPP sanctions.

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The California case most directly on point is Sylmar Air Conditioning v. Pueblo

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Contracting Services, Inc., 122 Cal. App. 4th 1049 (2004). The fact pattern there is identical to

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this case. In Sylmar, a cross-complaint defendant filed a SLAPP motion to strike, seeking

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sanctions against the cross-complaint plaintiff. After the SLAPP motion was pending, the

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SLAPP plaintiff attempted to amend its complaint, alleging that because the amendment was “as

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of right,” it could not be sanctioned for its SLAPP allegations. Sylmar, 122 Cal. App. 4th at

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1054. Relying upon a long line of California cases, the appellate court roundly rejected that

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argument. Pointing out that under established authority, neither voluntarily nor involuntarily

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Cause No. 2:11-CV-00214 RSM
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STRIKE AND FOR SANCTIONS - 5

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The Castello decision is attached as Appendix 2 to this Reply Brief.

CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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dismissal could moot SLAPP sanctions, the Court held that an amendment removing offending

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claims was not “qualitatively different” than dismissal. Id. at 1055. “[T]here is no express or

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implied right in section 425.16 [California’s anti-SLAPP statute] to amend a pleading to avoid a

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SLAPP motion.” Id.

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As to the argument that an amendment as of right should moot sanctions even where

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amendment with leave would not, the court held: “[t]his would totally frustrate the Legislature’s

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objective of providing a quick and inexpensive method for unmasking and dismissing such

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suits.” Id. at 1056. “By the time the moving party would be able to dig out of this procedural

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quagmire, the SLAPP plaintiff will have succeeded in his goal of delay and distraction and

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running up the costs of his opponent.” “Such a plaintiff would accomplish indirectly what could
not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her
resources.” Id. at 1055 (citing Simmons v. Allstate Ins., 92 Cal. App. 4th 1068, 1073-74 (2001)).
The Sylmar rule is well-settled: other California courts have similarly held that “a
plaintiff cannot use an 11th-hour amendment to plead around a motion to strike under the antiSLAPP statute.” Navellier v. Sletten, 131 Cal. App. 4th 763, 772 (2003).
The above California authority is directly on point and highly persuasive in interpreting
Washington’s anti-SLAPP statute. The result -- imposing sanctions on a SLAPP offender
despite an eleventh-hour attempt to amend -- is particularly appropriate in applying

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Washington’s anti-SLAPP statute. In unanimously amending RCW 4.24.525, the Washington

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legislature declared that it was “concerned about lawsuits brought primarily to chill the valid

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exercise of the constitutional rights of freedom of speech and petition for the redress of

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grievances.” RCW 4.24.525 – Findings – Purpose. The legislature acknowledged that “such

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lawsuits are typically dismissed as groundless or unconstitutional, but often not before the

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defendants are put to great expense, harassment, and interruption of their productive activities.”

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Coach’s behavior speaks for itself: their lawsuit against counsel was specious, and they

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abandoned it in an obvious effort to escape the consequences. In order to effectively deter the

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type of conduct that Coach engaged in here, the Washington legislature unanimously declared:

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Cause No. 2:11-CV-00214 RSM
REPLY IN SUPPORT OF MOTION TO
STRIKE AND FOR SANCTIONS - 6

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CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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“[t]his act shall be applied and construed liberally to effectuate its general purposes of protecting

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participants in public controversies from an abusive use of the courts.” Moreover, the statute

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provides for a $10,000 liquidated sanction for each SLAPP defendant. Potential punitive

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damages are also made available at the discretion of the court to “deter repetition of the conduct

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and comparable conduct by others similarly situated.” RCW 4.24.525(6)(a)(iii).
In this case, one of the largest law firms in the world, acting at the behest of a multi-

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billion dollar corporation, threatened to sue their opposing counsel for defamation if the claims

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against Coach were not immediately dismissed. Carlson Decl., Docket No. 9 ¶ 11, Ex. A. When

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that dismissal was not forthcoming, these parties filed suit. This forced the undersigned counsel

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to undertake the very significant time commitment involved in researching, preparing and filing
an anti-SLAPP motion to strike. More time and burden has been expended bringing this reply.
This work severely disrupted plaintiff counsel’s ability to work on the underlying legal claims
against Coach. It has been hugely time consuming and expensive. Now, Coach and their
counsel request immunity. This flies in the face of the letter, and the spirit, of Washington’s
public policy as expressed in RCW 4.24.525.
C.

Former Cross-Defendants’ Declaratory Judgment Action Does Not Preclude AntiSLAPP Remedies.

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Coach asserts, wrongly, that cross-claim Defendants are not entitled to seek the

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protections of Washington’s anti-SLAPP statute, because Coach claims that cross-defendants

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“themselves first injected their defamation claim into this lawsuit by filing a claim for

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declaratory relief.” Opposition, at 10. Coach cites no authority for this statement, and ignores its

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own role in precipitating the filing of the declaratory judgment action.

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Prior to filing declaratory judgment action, Coach on multiple occasions threatened

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counsel with a defamation lawsuit, in an obvious attempt to intimidate counsel into dismissing

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Ms. Kim’s lawsuit. Coach on multiple occasions admitted to making these statements, and

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continues to accuse counsel of defamation. In Coach, Inc.’s Amended Answer, Docket No. 21,

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Coach states as follows: “…counsel for Coach indicated to counsel for Ms. Kim that counsel had

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Cause No. 2:11-CV-00214 RSM
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STRIKE AND FOR SANCTIONS - 7

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CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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committed actionable defamation that would be the subject of a claim.” Amended Answer, at 2

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(emphasis added). “Coach admits that, in a February 17, 2011 letter, Mr. Keehnel informed

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counsel for Ms. Kim that they committed defamation.” Amended Answer, at 7. “Coach admits

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that Mr. Keehnel informed counsel for Ms. Kim that counsel for Ms. Kim committed defamation

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and that a claim would be filed.” Amended Answer, at 7 (emphasis added). Coach “specifically

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denies that there has been no defamation against Coach.” Amended Answer, at 8 (internal

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quotation marks omitted).
Under the circumstances here, it is clear that an “actual controversy” existed between the

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parties entitling cross-Defendants to request declaratory relief under 28 U.S.C. § 2201. Having
been repeatedly threatened with the filing of a defamation action in an unspecified forum at an
unspecified time, counsel felt compelled to seek declaratory relief7 in order to prevent greater
harm and harassment should Coach decide to file its SLAPP action in an out-of-state forum.
After counsel filed the declaratory judgment action, Coach was faced with a choice.
Coach could have acceded to counsel’s request for a declaratory judgment, or otherwise
abandoned their oft-stated intention to pursue a defamation lawsuit against counsel. If Coach
had followed that course, there would be no anti-SLAPP issue here. Instead, Coach chose to
carry out its threat to file a SLAPP lawsuit against counsel. Moreover, even after amending
away its defamation claim, Coach continues to assert that counsel committed defamation.

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Irrespective of any declaratory judgment action, Coach chose to file a SLAPP defamation

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claim against counsel. Washington’s unanimous legislative mandate is clear that the Washington

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statute is to be construed broadly, and reaches any “claim, however characterized,” that

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implicates a chilling effect on public discourse. RCW 4.24.525(2)(emphasis added). Nowhere is

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there any suggestion that parties are denied remedies because they seek the protection of a

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declaratory judgment action.

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If the Court grants counsel’s special motion to strike, the resulting dismissal with prejudice of Coach’s defamation
claims will, of course, moot the declaratory judgment action.

Cause No. 2:11-CV-00214 RSM
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STRIKE AND FOR SANCTIONS - 8

CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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D.

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Counsel’s Television Interview Easily Fits Within the Definition of “Public
Participation and Petition.”
Without a single citation to legal authority, Coach argues that counsel’s interview on a

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network television newscast regarding Coach’s anti-counterfeiting program and the claims in this

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lawsuit do not constitute “public participation and petition” under Washington’s anti-SLAPP

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statute. This is specious.

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Coach takes an absurdly narrow view of the “public participation” standard. Again, the

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unanimous Washington legislature directed that our anti-SLAPP statute should be construed and

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applied liberally to effectuate its purposes. RCW 4.24.525, Application -- Construction.

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Because the television interview was given regarding a class-action matter pending in this Court,

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the interview was regarding “an oral statement made … that is reasonably likely to encourage or

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enlist public participation in an effort to effect consideration or review of an issue … in a judicial

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proceeding.” RCW 4.24.525(2)(c). As the SLAPP defendants have declared, one purpose of the

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interview was to solicit additional class participation in this lawsuit.8 Carlson Decl., Docket No.

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9 ¶ 4; Carney Decl., Docket No. 9, ¶ 4. Indeed, publicizing a class action filing is a common

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event and is one way that the public participation and consumer protection goals of the class

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action device are routinely met.
The interview is also clearly an “oral statement made … in connection with an issue

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under consideration or review by a … judicial proceeding [.]” RCW 4.24.525(2)(b). While
Coach attempts to argue that this lawsuit is somehow not actually a “judicial proceeding” in
which issues are “under consideration,” again, there is no authority whatsoever for that rather
remarkable argument. Applying and construing the statutory language liberally (indeed,
applying and construing it conservatively), proceedings before this Court are “judicial
proceedings” in which issues are “under consideration.”

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Coach spends a significant amount of its briefing arguing merits issues related to the underlying claims against
Coach. These arguments are irrelevant to the present motion.

Cause No. 2:11-CV-00214 RSM
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STRIKE AND FOR SANCTIONS - 9

CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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In a previous ruling applying Washington’s revised anti-SLAPP statute, Judge Pechman

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recognized that a “major television network’s local news broadcast constitutes a ‘public forum’

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within the meaning of 4.24.525(2)(d).” Castello, Appendix 2 at 10. So, the interview in

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question concerned an “oral statement made … in a … public forum in connection with an issue

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of public concern.” 4.24.525(2)(d)(emphasis added). Coach’s counter-argument that this

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lawsuit, and its own nationwide anti-counterfeiting program, are not matters of “public concern”

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is difficult to reconcile, particularly because: (1) Coach admits that it is a famous brand for

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purposes of defamation analysis, subjecting it to the “actual malice” defamation standard, and (2)

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Coach has spent millions of dollars and has actively publicized its nationwide anti-counterfeiting

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campaign (dubbed “Operation Turnlock”) in an effort to achieve “general deterrence” against
consumers. See Carlson Decl., Docket No. 9, Ex. E; Carlson Decl., Docket No. 14, Ex. A.
Coach’s anti-counterfeiting efforts are a broad and well publicized crusade, and Coach
executives have been interviewed multiple times about Coach’s efforts. For Coach to now claim
that these are not issues of “public concern” is contradictory.
Coach complains to this Court that the public has responded to the television interview by
communicating its displeasure directly to Coach. Opposition, at 19. Coach nowhere explains
why the public would respond in this fashion over an issue that is not a matter of public concern.
Coach’s attempt to conflate the class action numerosity requirement with the definition of

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“public concern” under the anti-SLAPP statute is likewise unavailing. Opposition at 3, 9-10.

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There seems to be little legitimate dispute that Coach’s defamation claims fall within

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Washington’s anti-SLAPP statute. Indeed, Coach likely reached this same conclusion when they

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decided to attempt to run from its claims by amending them out of the case.

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Coach’s Could not Possibly Establish, by Clear and Convincing Evidence, the
Probability of Prevailing in Proving “Actual Malice.”

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First, Coach misstates the legal standard it must satisfy to avoid anti-SLAPP sanctions.

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Coach cites to California’s anti-SLAPP statute for the proposition that it merely needs to show

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“minimal merit.” But California’s statute is, by its plain terms, different than Washington’s,

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Cause No. 2:11-CV-00214 RSM
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E.

CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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requiring proof only of a “probability” that plaintiff will prevail on the SLAPP claim. California

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Code of Civil Procedure 425.16(b)(1). Under Washington’s statute, however, the legislature has

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required “clear and convincing evidence of a probability of prevailing on the claim.” RCW

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4.24.525(4)(b) (emphasis added). Washington’s is a different standard entirely, which is why the

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Court’s of this District have ignored California’s “minimal merit” standard in favor of

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Washington’s “clear and convincing evidence” standard. Aronson, 738 F. Supp. 2d at 1109;

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Castello, Appendix 2 at 6. Coach’s attempt to avoid the legal standard applied in this District is

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telling.

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It is well known that the “actual malice” legal standard for public figure defamation is
“almost impossible” to meet. See, e.g., Michael Hadley, Note, The Gertz Doctrine and Internet
Defamation, 84 Va. L. Rev. 477, 477, 500 n.182 (1998) (discussing that the higher standard of
actual malice for public figures is almost impossible to meet). To avoid sanctions, Coach is
therefore required to show, by clear and convincing evidence, that it can meet this “almost
impossible” standard. Coach has utterly failed to do this.
Coach makes no substantial defense of one of the three statements for which it sued
opposing counsel for defamation. Coach claimed as false an accusation that “Coach uses
accusations of trademark infringement to stifle second-hand sales of authentic products.”
Answer and Counterclaims, docket No. 6, ¶ 23. This accusation ignored the actual words quoted

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in the subject interview, which were: “we think they want to force consumers to only buy new

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Coach products, and only buy them in coach stores.” Coach ignored the words “we think,”

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which indicates a statement of opinion, not fact. Carlson Decl., Docket No. 9, ¶ 9. Coach is no

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longer appears willing to defend this defamation allegation.

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Otherwise, Coach spends a great deal of time discussing its anti-counterfeiting efforts and

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the underlying merits of Ms. Kim’s allegations in this case. None of that is relevant to whether

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Coach can prove, by clear and convincing evidence, that the SLAPP defendants acted with

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“actual malice” and made false statements that harmed Coach. What Coach knew, and when

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Coach knew it, is not material. As demonstrated convincingly in our last submission, there was

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CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]

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no actual malice by opposing counsel, and the proffered statements were literally and

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substantially true. Certain of the complained of statements were statements of opinion. Coach

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certainly cannot show by clear and convincing evidence, on this record, that it can prove “actual

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malice.” In this regard, the anti-SLAPP defendants will otherwise rest on their prior

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submission.9
CONCLUSION

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Suing opposing counsel during active litigation in federal court is an extraordinary and

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overly aggressive move, designed to produce an unfair advantage in the underlying case. This

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conduct clearly comes within Washington’s anti-SLAPP statute, which was adopted

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unanimously to deter this very type of conduct. Coach’s attempt to find a loophole and avoid the
consequences for its behavior has no support in the law or in equity. The defamation defendants
respectfully request that this Court impose sanctions under Washington’s anti-SLAPP statute,
including the mandatory sanctions of attorney fees and $10,000 for each defendant, and a
punitive damage award sufficient “necessary to deter repetition of the conduct and comparable
conduct by others similarly situated.” RCW 4.24.525(6)(a)(iii).

DATED this 1st day of April, 2010.

17

/S/
Christopher Carney, WSBA No. 30325
Carney Gillespie Isitt PLLP
Jay S. Carlson, WSBA No. 30411
Carlson Legal Jason Moore
Van Eyk & Moore, PLLC
100 W. Harrison St., Suite N440
Seattle, WA 98119

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9

Coach’s brief has several misleading arguments. For example, Coach refers to the Declaration of Chris Carney,
Docket No. 9, asserting that his statement “no one working on behalf of Coach had ever contacted Ms. Kim” is
false, because Ms. Kim received the letter from Coach’s counsel that is the subject of this lawsuit. In context,
obviously Mr. Carney was talking about contact from Coach before Ms. Kim received this letter. Coach’s counsel
understands this full well, and their argument that this fabricated discrepancy “establishes that Coach has stated a
legally sufficient claim” is absurd. Opposition at 15-16.

Cause No. 2:11-CV-00214 RSM
REPLY IN SUPPORT OF MOTION TO
STRIKE AND FOR SANCTIONS - 12

CARLSON LEGAL
100 W. HARRISON ST.
SUITE N440
SEATTLE, WASHINGTON 98119
[phone]