CalPERS

This is an appeal from an order denying the special motion to strike of defendants Moody’s Investors Service, Inc., Moody’s Corporation and The McGraw-Hill Companies, Inc. (collectively, Rating Agencies or defendants), against plaintiff California’s Public Employees’ Retirement System (CalPERS) pursuant to the so-called anti-SLAPP statute (Code Civ. Proc., § 425.16). The trial court reached this decision after finding that, although CalPERS’s complaint was indeed based upon conduct by the Rating Agencies falling within the scope of the anti-SLAPP statute, dismissal at this stage would be improper because CalPERS successfully demonstrated a probability of prevailing on the merits of its sole claim of negligent misrepresentation. According to the Rating Agencies, the trial court’s finding of a probability of prevailing on the merits is erroneous.

CalPERS, in turn, cross-appeals to challenge the trial court’s initial finding that its complaint was based upon conduct falling within the scope of section 425.16, arguing that it seeks to hold the Rating Agencies liable for its private, commercial activities rather than for any constitutionally protected activities. In addition,…