NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 18 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ODETTE R. BATIS, on behalf of herself and No. 23-15260 all others similarly situated, D.C. No. 3:22-cv-01924-MMC Plaintiff-Appellee,

v. MEMORANDUM*

DUN & BRADSTREET HOLDINGS, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding

Argued and Submitted January 9, 2024 San Francisco, California

Before: SILER,** CLIFTON, and M. SMITH, Circuit Judges.

Dun & Bradstreet Holdings, Inc. (“D&B”) appeals the district court’s denial

of its motion to strike brought under section 425.16 of California’s anti-SLAPP

statute. D&B brought the motion in question against Odette Batis’s putative class

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. action challenging the use of her name and contact information in the free trial for

the D&B Hoovers database, which Batis alleges violates her right of publicity

under California law. We have jurisdiction under the collateral order doctrine,

Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003), and we affirm.

In doing so, we need not reach the merits of Batis’s claims. When assessing

a motion to strike, “[b]efore engaging in [the merits] analysis, a court must

consider any claims by the plaintiff that a statutory exemption contained in section

425.17 applies.” Martinez v. ZoomInfo Techs., Inc., 82 F.4th 785, 790-91 (9th Cir.

2023) (internal quotation marks omitted). One such exemption applies to “any

action brought solely in the public interest or on behalf of the general public” in

which (1) the plaintiff does not seek relief different from the rest of any class of

which she is a member, (2) the action would enforce an “important right affecting

the public interest,” and (3) “[p]rivate enforcement is necessary and places a

disproportionate financial burden on the plaintiff.” CAL. CIV. PROC. CODE

§ 425.17(b).

In Martinez, this court held that a similar lawsuit met all three requirements

and was therefore exempt under section 425.17(b). That lawsuit likewise arose

under California’s right of publicity laws and challenged the use of the plaintiff’s

name and contact information in the free trial for an online professional directory.

2 23-15260 Martinez, 82 F.4th at 787, 794. As the two lawsuits are almost identical, Batis’s

lawsuit also falls under the public interest exemption.

D&B’s various efforts to distinguish Martinez are unavailing. First, while it

is true that the public interest exemption does not apply to lawsuits brought against

“any dramatic, literary, musical, political, or artistic work,” CAL. CIV. PROC. CODE

§ 425.17(d)(2), D&B’s database plainly does not fall within any of those

categories—it is largely used for private commercial purposes, and D&B concedes

that its “profiles are short and the vast majority are limited to basic business

contact information.” While D&B asserts that § 425.17(d)(2) also covers additional

“important forms of protected speech,” Major v. Silna, 134 Cal. App. 4th 1485,

1497 (2005), the legislative history cited in Silna makes clear that “important”

refers to a “newspaper, magazine, or other periodical publication,” as well as

“constitutionally protected artistic works and the like.” Id. at 1497. Meanwhile,

Silna itself involved the dissemination of a letter soliciting support for a political

candidate, id. at 1489—a political work that clearly falls within the enumerated

categories of subdivision (d)(2).

D&B next argues that unlike Martinez, Batis is seeking different relief from

the rest of the class. It notes that her complaint seeks “[e]motional distress

damages,” which it asserts “are highly individualized.” However, Martinez held

that a plaintiff may seek any form of relief unless “from the face of the

3 23-15260 complaint, [it] would apply only to a subset of the class.” Martinez, 82 F.4th at

792. Batis’s complaint clearly seeks emotional damages on behalf of both

“Plaintiff and the Class.” While D&B may find it implausible that the whole class

experienced emotional distress, Batis’s complaint does not expressly preclude any

subset of the class from seeking such relief.

D&B finally argues that Batis waived any argument under section 425.17(b)

by failing to discuss that exemption in the proceedings below. While that is correct,

this court has discretion to excuse any such waiver. In re Am. W. Airlines, Inc., 217

F.3d 1161, 1165 (9th Cir. 2000). As the issue is purely one of law and the

necessary facts are fully developed, we choose to exercise that discretion here.

Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986).

AFFIRMED.

4 23-15260