DuPont Merck Pharmaceutical Co. v. Superior Court

The complaint in this class action suit alleges defendant made false statements before regulatory bodies, the medical profession, and to the public in connection with one of its pharmaceutical products. The trial court denied a motion to strike under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16; all further statutory references are to this code, unless otherwise indicated.) The court’s decision was based on a determination that the allegations of the complaint did not fit the requirement of the statute that the causes of action arose from acts of defendant “in furtherance of [defendant’s] right of petition or- free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)

Since we conclude the acts with which the complaint charges defendant qualify under the first step of the SLAPP analysis, we remand the case to the trial court to make a determination whether plaintiffs can establish a probability they will prevail. This latter determination cannot be based on allegations but must be based on evidence, and if it results in a judgment striking the…