SEC Filings Are Protected Activity

Sugarman v. Bennett, No. B307753 (D2d8 Dec. 27, 2021)

Sugarman v. Brown, No. B308318 (D2d8 Dec. 27, 2021)

Two appeals from the same case decide the same issue: statements made in a corporation’s Form 10-K filing with the Securities and Exchange Commission are made “in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” and thus protected activity under the anti-SLAPP statute.

Makes sense.

Affirmed, in relevant part.

Style note: I have complained before about the goofy way California appellate courts explain partial publications, by explaining instead which parts of the opinion are not published. The decisions here do that too. But at least the slip opinion helpfully includes headings that say “[Begin nonpublished portion]” and “[End nonpublished portion].” Readers of slip opinions will take whatever we can get.

Flipped Burden Prevents Issue Preclusion

Bennett v. Rancho Cal. Water Dist., No. G054617 (D4d3 May 29, 2019)

Collateral estoppel doesn’t apply when, during the first proceeding, the party seeking preclusion bore a lower burden of proof. Here, the prior case was an administrative employee benefits proceeding. In it, the employer bore the burden to prove that plaintiff was not an employee. It did not meet it. But now we’re in a whistleblower retaliation case where the plaintiff bears the burden to prove he is an employee. So plaintiff can’t rely on the defendant’s failure to meet its burden in the admin case for issue preclusion on the employment issue.

Reversed.