Tarla Makaeff v. Trump University, Llc

Opinion by Judge WARDLAW; Concurrence by Chief Judge KOZINSKI; Concurrence by Judge PAEZ.

OPINION

No one would deny that Donald Trump, the real estate magnate, television personality, author, and erstwhile presidential candidate, cuts a celebrated, if controversial, public figure. We must decide whether Trump University, LLC, a private, for-profit entity purporting to teach Trump’s “insider success secrets,” is itself a public or limited public figure so as to implicate the First Amendment. Disgruntled former customer Tarla Makaeff sued Trump University for, among other things, deceptive business practices. In return, Trump University counterclaimed against Makaeff for defamation. Makaeff moved to strike the defamation claim, contending that Trump University is a public figure and therefore must show that she made her allegedly defamatory statements with “actual malice,” a requirement she contends Trump University cannot prove. See New York Times Co. v. Sullivan, 376 U.S. 254 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). Denying the motion to strike, the district court held that Trump University is not a public figure. We disagree. Trump University is a limited public figure, and, to…

with whom Judge PAEZ joins, concurring:

I join Judge Wardlaw’s fíne opinion because it, faithfully applies .our law, as announced in United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir.1999), and its progeny. But I believe Newsham is wrong and should be reconsidered.

Erie Railroad Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), divided the law applicable to diversity cases into two broad categories. Overruling Swift v. Tyson, 41 U.S. 1 , 16 Pet. 1 , 10 L.Ed. 865 (1842), it held that state law, rather than federal common law, applies to matters of substance. Erie, 304 U.S. at 78-79 , 58 S.Ct. 817 . But when it comes to procedure, federal law governs. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 , 427 & n. 7, 116 S.Ct. 2211 , 135 L.Ed.2d 659 (1996); see also Hanna v. Plumer, 380 U.S. 460, 473 , 85 S.Ct. 1136 , 14 L.Ed.2d 8 (1965) (“Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts.... ”).

In most cases, it’s easy enough to tell whether a rule is substantive or procedural. Whether a defendant is liable in tort for a slip-and-fall, or…

with whom Chief Judge KOZINSKI joins, concurring:

I concur fully in Judge Wardlaw’s fine opinion. I also join Chief Judge Kozinski’s concurrence because I, too, believe that United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir.1999), is wrong and should be reconsidered. I agree that California’s anti-SLAPP statute is “quintessentially procedural,” and its application in federal court has created a hybrid, mess that now resembles neither the Federal Rules nor the original state statute.

Yet another reason to reconsider the application of state anti-SLAPP statutes in federal court is that there are significant state-by-state variations within the circuit, despite facial similarities and identical procedural- purposes of each state’s anti- *276 SLAPP statute. Newsham’s holding — although considering only California’s anti-SLAPP statute — has been extended to Oregon’s anti-SLAPP statute and, arguably, sub silentio to Nevada’s as well. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 798-800 , 798 n. 4 (9th Cir.2012) (holding that the denial of a motion to strike under Nevada’s anti-SLAPP statute is not an appealable collateral order but not…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TARLA MAKAEFF, on behalf of No. 11-55016 herself and all others similarly situated, D.C. No. Plaintiff-counter-defendant- 3:10-cv-00940- Appellant, IEG-WVG

and

OPINION

BRANDON KELLER; ED OBERKROM ;

PATRICIA MURPHY ,

Plaintiffs,

v.

TRUMP UNIVERSITY , LLC, a New York limited liability company, AKA Trump Entrepreneur Initiative, Defendant-counter-claimant- Appellee,

and

DONALD J. TRUMP,

Defendant. MAKAEFF V . TRUMP UNIVERSITY

Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted January 18, 2012—Irvine, California

Filed April 17, 2013

Before: Alex Kozinski, Chief Judge, Kim McLane Wardlaw and Richard A. Paez, Circuit Judges.

Opinion by Judge Wardlaw; Concurrence by Chief Judge Kozinski; Concurrence by Judge Paez

SUMMARY*

California Anti-SLAPP Statute / Defamation

The panel reversed the district court’s denial of a pre-trial motion to strike a counterclaim pursuant to California’s anti- SLAPP statute, and remanded for further…