Alaska Structures, Inc. v. Hedlund

• Citation: 323 P.3d 1082,180 Wash.App. 591
• Decision Date: 21 April 2014
• Docket Number: No. 69349–2–I.,69349–2–I.
• Court: Washington Court of Appeals
• Parties: ALASKA STRUCTURES, INC., an Alaska corporation, Appellant, v. Charles J. HEDLUND, Respondent.

180 Wash.App. 591

323 P.3d 1082

ALASKA STRUCTURES, INC., an Alaska corporation, Appellant,

v.Charles J. HEDLUND, Respondent.

No. 69349–2–I.

Court of Appeals of Washington,

Division 1.

April 21, 2014.

Oscar Yale Lewis Jr., Stacia N. Lay, Hendricks & Lewis, Seattle, WA, for Appellant.

Michele Lynn Earl–Hubbard, Allied Law Group LLC, Seattle, WA, for Respondent.

Katherine George, Harrison–Benis LLP Seattle, WA, Amicus Curiae on behalf of Allied Daily Newspapers of Washington and Washington Newspaper Publishers Association.

GROSSE, J.P.T.¹

¶ 1 To succeed on a special motion to strike under Washington's anti-SLAPP statute,² the moving party must make an initial prima facie showing that the claimant's suit arises from an act in furtherance of his right of petition or free speech in connection with a matter of public concern. If the movant does not meet that threshold, then the anti-SLAPP motion is dismissed. Here, the plaintiff, Alaska Structures, Inc., brought an action against the defendant, Charles Hedlund, for violating a confidentiality agreement. The gravamen of the complaint is not whether there was a violation of Hedlund's free speech rights, but rather, whether the parties' contract was violated. Because this is a private contractual matter, the anti-SLAPP statute does not apply. Accordingly, we reverse the trial court and remand for further proceedings.

FACTS

¶ 2 From February 2007 to January 2010, Charles Hedlund worked as a sales coordinator at Alaska Structures, Inc. (AKS), a supplier of tents to the United States military. In August 2011, Hedlund made several postings regarding AKS on an Internet jobsite forum, lndeed.com. Those postings were removed from the web site at AKS's request. Indeed.com is a web site designed to be a resource for job seekers. It includes job postings, salary averages, and a forum where employees and applicants can discuss a company's work environment. The web site is designed to allow job seekers to ask others about a company to aid in making a decision whether or not to work there. Hedlund claimed he made his comments to describe an accurate picture of AKS to prospective employees, and because he suspected that other postings on the web site describing AKS were made by employees masquerading as job seekers. Hedlund characterized the various postings regarding AKS as a debate among the parties posting. AKS has focused on one particular posting as providing the basis for its suit of breach of confidentiality. Hedlund wrote:

[T]he security measures at AKS are all consumer-grade off the shelf fare installed by the former CIO, who had no prior security experience.... The cheap cameras provided no clues as to the identity of the thieves. That is why they now have the high-tech security precaution of human guards.

Hedlund denied having any special knowledge of security measures. While Hedlund was employed there, Dylan Schneider, the chief information officer (CIO) of AKS, installed software and security cameras. AKS knew that Schneider did not have any prior experience in deploying security measures.

¶ 3 Hedlund posted his comment after he had left AKS and after the AKS headquarters had been broken into. His comments were based on public information contained in police reports and newspapers.

¶ 4 Based on this posting, AKS sued Hedlund for breach of a confidentiality agreement. Hedlund argued that he was sued as a result of his postings to a web site, which is a public forum, and moved to dismiss the claim under the anti-SLAPP statute.

¶ 5 The trial court found the anti-SLAPP statute applied and that AKS was unable to demonstrate that its action for violation of the confidentiality agreement had any merit. The court awarded Hedlund requested attorney fees and a $10,000 penalty. AKS appeals.

ANALYSIS

¶ 6 AKS argues that the trial court erred in determining that the contents of Hedlund's posting addressed issues of public concern. AKS further argues that even if this posting were of public concern, Hedlund violated the confidentially agreement he signed with AKS while in its employ.

¶ 7 In 2010, the Washington legislature expanded the protections embodied in RCW 4.24.525. In the preamble, the legislature stated the purpose of the new section:

(a) It is concerned about lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances;

(b) Such lawsuits, called “Strategic Lawsuits Against Public Participation” or “SLAPPs,” are typically dismissed as groundless or unconstitutional but often not before the defendants are put to great expense, harassment, and interruption of their productive activities;

(c) The costs associated with defending such suits can deter individuals and entities from fully exercising their constitutional rights to petition the government and to speak out on public issues;

(d) It is in the public interest for citizens to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process; and

(e) An expedited judicial review would avoid the potential for abuse in these cases.³

The act further provides that it “shall be applied and construed liberally to effectuate its general purpose of protecting participants in public controversies from an abusive use of the courts.” ⁴ The anti-SLAPP statute provides relief to a defendant in the nature of immunity from suit. ⁵

¶ 8 Pursuant to the anti-SLAPP act, a party may bring a special motion to strike any claim based on an oral statement or “[a]ny other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition.” RCW 4.24.525(2)(e). Here, Hedlund was required to prove by a preponderance of the evidence that AKS's claim is based on a statement made in connection with an issue of public concern. RCW 4.24.525(4)(b).

¶ 9 In deciding an anti-SLAPP motion, a court must follow a two-step process.⁶ We review a court's interpretation and application of the anti-SLAPP statute de novo.⁷ The first prong of the analysis requires a court to review the parties' pleadings, declarations, and other supporting documents to determine whether the gravamen of the underlying claim is based on protected activity. A defendant filing an anti-SLAPP motion to strike must make an initial prima facie showing that the plaintiff's suit arises from an act in furtherance of the defendant's right of petition or free speech.⁸ If the substance or gravamen of the complaint does not challenge the defendant's acts in furtherance of the right of free speech or petition, the court does not consider whether the complaint alleges a cognizable wrong or whether the plaintiff can prove damages.⁹ In other words, Hedlund is required to make a threshold showing that each of AKS's claims is based on protected activity. AKS contends that the trial court erred when it concluded that Hedlund's postings on lndeed.com fell within the protected activity of the antiSLAPP statute. AKS argues that the action involves a breach of contract claim and not free speech. We agree.

¶ 10 Here, the trial court made the following findings:

The Court further finds that the speech at issue is a written statement submitted in a public forum in connection with an issue of public concern.

The Court further finds that the matter concerns lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition.

¶ 11 But, what constitutes public concern must be viewed in the context of this act. Under the act, the legislature is “concerned about lawsuits” that deter participation in matters of public concern.¹⁰ It created the special motion in RCW 4.24.525 to “[s]trike a balance between the rights of persons to file lawsuits ... and the rights of persons to participate in matters of public concern.” ¹¹ But the legislature did not grant a party immunity from liability for the consequences of speech that is otherwise unlawful or unprotected.

¶ 12 Washington's anti-SLAPP statute mirrors California's anti-SLAPP statute. Accordingly, California cases may be considered persuasive authority when interpreting RCW 4.24.525.¹² California uses the term “public interest” while Washington uses “public concern.” California courts have defined “public interest” as “any issue in which the public is interested.” ¹³ As the district court noted in Stutzman v. Armstrong, “ ‘[t]hose terms are inherently amorphous and thus do not lend themselves to a precise, all encompassing definition.’ ” ¹⁴ We are reminded of Justice Potter Stewart's famous definition of “pornography,” “I know it when I see it” and we see no discernible difference in the two terms.¹⁵

¶ 13 In Cross v. Cooper, the California court noted that its courts adopted a framework of categories for determining whether a statement implicates an issue of public interestand falls within the protection of the anti-SLAPP statute:

The first category comprises cases where the statement or activity precipitating the underlying cause of action was “a person or entity in the public eye.” The second category comprises cases where the statement or activity precipitating the underlying cause of action “involved conduct that could affect large numbers of people beyond the direct participants.” And the third category comprises cases where the statement or activity precipitating the claim involved “a topic of widespread, public interest.” ¹⁶

It is true that in applying those categories, several California cases have found that consumer information posted on web sites concern issues of public interest. See, e.g., Gilbert v. Sykes¹⁷ (holding patient's statements about a...