California Court of Appeal Affirms Win for Waymaker Client On Anti-SLAPP Motion

In a major victory for Waymaker client eGumball, the California Court of Appeal has issued an anti-SLAPP opinion that builds on California Supreme Court’s unanimous 9-0 ruling in FilmOn.com Inc. v. DoubleVerify Inc. (2019) argued by Partners Scott Malzahn and Ryan Baker.

Malzahn represents plaintiff eGumball in a defamation action arising out of its erroneous placement on the MATCH (Mastercard Alert To Control High-Risk Merchants) database under the reason code “laundering.” The issue the Court of Appeal decided was whether defamatory statements about a private company on a confidential industry blacklist contributes to a public dialogue about an issue of public interest.

Dismissing the argument of defendant Merrick Bank Corporation, et al., the Court wrote, “While credit card security is undoubtedly an important issue to the general public, Merrick has failed to show that placing eGumball on the MATCH list contributed to the public debate or discourse on this issue in any meaningful way. The evidence shows that MATCH is used for business purposes, to help credit card companies and their industry partners reduce risk by flagging problematic merchants. Merrick’s placement of eGumball on the MATCH list did not contribute to the public discourse because, as industry users acknowledge before using the database, it is a confidential list.”

This decision rejected defendant’s attempts to distinguish FilmOn and ruled that this case “resembles FilmOn.” In 2019, Waymaker argued and won the landmark FilmOn decision before the California Supreme Court, which established a new legal framework for the catch-all provision of the state’s anti-SLAPP statute. FilmOn has since been cited more than 1,000 times.