Case: 1:17-cv-09117 Document #: 24 Filed: 03/07/18 Page 1 of 7 PageID #:94

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEEPER SECURITY, INC.,
No. 17-cv-9117
Plaintiff,
v.

Judge Joan Humphrey Lefkow

DAN GOODIN and
ADVANCE MAGAZINE PUBLISHERS
INC. d/b/a CONDÉ NAST and ARS
TECHNICA,

Magistrate Judge Jeffrey Cole

Defendants.

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE

Dean D. Niro (dniro@vvnlaw.com)
Patrick F. Solon (solon@vvnlaw.com)
VITALE, VICKREY, NIRO & GASEY LLP
311 S. Wacker Drive, Suite 2470
Chicago, Illinois 60606
Tel.: (312) 236-0733
Fax: (312) 236-3137
Attorneys for Keeper Security, Inc

 Case: 1:17-cv-09117 Document #: 24 Filed: 03/07/18 Page 2 of 7 PageID #:95

Plaintiff Keeper Security, Inc. (“Keeper”) respectfully submits this memorandum
opposing the Defendants’ Motion to Strike (ECF No. 17).
ARGUMENT
Defendants’ Motion Is Improper
Defendants should have included any substantive argument under state SLAPP law in
their motion to dismiss under Fed. R. Civ. P. 12(b). (ECF Nos. 14-15). The Federal Rules of
Civil Procedure do not support using state “anti-SLAPP” procedure for a “special motion to
strike”. Fed. R. Civ. P. 12(b); see Trudeau v. ConsumerAffairs.com, Inc., 2011 U.S. Dist. LEXIS
99852, *15-*18, 2011 WL 3898041 (N.D. Ill. Sept. 6, 2011) (Lefkow, J.) (applying substantive
rule of Illinois SLAPP statute under Rule 12). The holding of Intercon Solutions, Inc. v. Basel
Action Network, 791 F.3d 729 (7th Cir. 2015) affirmed rejection of a “special motion to strike”
because the Washington statute had been held unconstitutional. Other analysis in the decision
offers no support for a “special motion to strike” as a procedural vehicle in federal court. Id. at
732 (“There is no remaining state substance that could be applied through the closest federal
procedural devices-the Rule 12(c) motion for judgment on the pleadings and the Rule 56 motion
for summary judgment.”). For that reason alone, Defendants’ motion to strike should be denied.
California Anti-Slapp Law Does Not Apply
Defendants’ reliance on California’s, rather than Illinois’, SLAPP statute also is
improper, because it violates choice-of-law principles. Defendants’ motion to dismiss does not
dispute the application of Illinois defamation law. Illinois substantive law clearly applies to this
case. Trudeau, 2011 U.S. Dist. LEXIS 99852, *12 n. 5 (quoting Kamelgard v. Macura, 585 F.3d
334, 341 (7th Cir. 2009) (“When the defamatory statement is communicated in many different
states, it makes sense to apply the law of the plaintiff's domicile, and that is the usual result in

-1-

 Case: 1:17-cv-09117 Document #: 24 Filed: 03/07/18 Page 3 of 7 PageID #:96

Illinois.”); Cook v. Winfrey, 141 F.3d 322, 329 (7th Cir. 1998) (“[I]n multistate defamation cases,
Illinois cases indicate that ‘the applicable law is that of the victim's domicile, period.’” (quoting
Rice v. Nova Biomedical Corp., 38 F.3d 909, 916 (7th Cir. 1994))).
California law cannot be applied here. Keeper is in Illinois. (ECF No. 1 at 1). Seventh
Circuit precedent requires application of Illinois substantive law. Cook, 141 F.3d at 329; Rice,
38 F.3d at 916; see Kamelgard, 585 F.3d at 344 (applying New Jersey law to suit by New Jersey
defamation plaintiff in Illinois forum). The fact that Defendant Goodin resides in California
does not support application of California SLAPP law.

Defendants published defamatory

statements about an Illinois resident and published the statements to Illinois residents. (ECF No.
1, Complaint ¶¶ 21-24). They committed the intentional tort of defamation in Illinois. Walden v.
Fiore, _ U.S. _, 134 S. Ct. 1115, 1124 (2014). Defendant Ars Technica also has an Illinois
office. (Complaint ¶¶ 13-14). Nonetheless, Defendants make no argument under the Illinois
SLAPP statute, the Citizen Participation Act. 735 ILCS 110/1 et seq.
Defendants also admit that there is no Seventh Circuit precedent supporting application
of California SLAPP law based on “depecage”. (ECF No. 17 at 2 n.1). The Illinois Supreme
Court has not endorsed Defendants’ broad view of “depecage”. The Illinois Supreme Court has
noted that “depecage” is part of the Restatement (Second) of Conflict of Laws §145 (1971).
Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 161, 879 N.E.2d 893, 901-902 (2007). The
Supreme Court has said that this is part of the “schizophrenic” Restatement (Second), which
combines “general” provisions such as Section 145 with more definite, presumptive rules such as
location of injury. Id., 227 Ill.2d at 162, 879 N.E.2d at 902. Far from endorsing wide-ranging
blending of substantive laws of different states in a tort action, the court stated that the general
provisions take a back seat to the presumptive rules. “We agree with the concern that the bench

-2-

 Case: 1:17-cv-09117 Document #: 24 Filed: 03/07/18 Page 4 of 7 PageID #:97

and bar have overemphasized the general sections of the Second Restatement of Conflict of
Laws and have undervalued the specific presumptive rules.” Id.
Here, Illinois is the location of the injury, and the location of the tort. Given that Illinois
law applies to the defamation claim, and the tort occurred here, Defendants cannot overcome the
presumptive application of Illinois law to any SLAPP defense. Id., 227 Ill.2d at 167, 879 N.E.2d
at 905. Defendants do not restrict their activities to California and California does not have a
sufficiently greater interest to overcome the presumption. While Defendants cite district court
cases applying different state laws for defamation and SLAPP defenses, those cases are wrongly
decided to the extent they rest on similar facts. (ECF No. 17 at 2-3).
The Complaint Should Not Be Stricken Under the California Anti-Slapp Statute
Even if the California law is applied, Defendants’ “special motion to strike” must fail.
First, Defendants’ argument under the California statute adds nothing substantive to be applied
using controlling rules of federal procedure.

Defendants’ application of the statute is

inconsistent with the dicta in Intercon Solutions, supra. The two-step preliminary review of a
SLAPP case has no substantive element regarding the claim or defenses, or ultimate burdens of
proof. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003) (describing
operation of statute). It is a substitute for Rule 12.
Second, Defendants offer only unsupported attorney argument to meet their admitted
burden to establish a “connection with a public issue or an issue of public interest.” Id. (ECF
No. 17 at 5). Defendants offer no proof of any public issue or any public interest. Instead they
argue that websites are public. Defendants’ unsupported argument would admit no limits to the
California statute. Consumer Justice Center v. Trimedica Int’l, Inc., 107 Cal.App.4th 595, 602
(2003). If, as here, for-profit, clickbait articles trashing products on the web can fall within the

-3-

 Case: 1:17-cv-09117 Document #: 24 Filed: 03/07/18 Page 5 of 7 PageID #:98

public interest SLAPP statute, it has no meaningful boundaries. Defendants have not met their
burden.
The California statute is not unbounded.
Litigation Against Public Participation”.

The statute literally addresses “Strategic

See Id. (statute promotes public participation).

Petitioning activity is required under the statute’s first two prongs. See Briggs v. Eden Council
for Hope & Opportunity, 969 P.2d 564, 572 (Cal. 1999) (construing petitioning sections “to
protect not just statements or writings on public issues, but all statements or writings made
before, or in connection with issues under consideration by, official bodies and proceedings”).
Defendants rely on the third and fourth prongs of the statute, which do not require petitioning
activity, but have a real requirement of public interest. “If, however, the defendant’s alleged acts
fall under the third or fourth prongs of subdivision (e), there is an express ‘issue of public
interest’ limitation.” All One God Faith, Inc. v. Organic & Sustainable Industry Standards, Inc.,
183 Cal.App.4th 1186, 1201-1202 (2002) (quoting Trimedica, 107 Cal.App.4th at 600) (rejecting
public interest claim for opinions on organic products). Trimedica rejected broad application of
the statute to statements about commercial products. Id. at 601-602; see also Scott v. Metabolife
Int’l, Inc., 115 Cal. App. 4th 404, 423 (2004). In sum, the California statute does not reach
Defendants’ for-profit article about Keeper and Microsoft commercial software. Defendants
have not met their burden.
Third, Keeper’s defamation claim has a reasonable probability of prevailing. Defendants
tie that argument to their Rule 12 motion to dismiss. Defendants do not and cannot support any
additional burden on Keeper to support its Complaint. Keeper’s separate brief in opposition to
the motion to dismiss applies equally here, and further requires denial of the motion to strike.
CONCLUSION
Keeper respectfully requests that the Court deny the motion to strike. (ECF No. 17).
-4-

 Case: 1:17-cv-09117 Document #: 24 Filed: 03/07/18 Page 6 of 7 PageID #:99

Respectfully submitted,

/s/ Dean D. Niro
Dean D. Niro (dniro@vvnlaw.com)
Patrick F. Solon (solon@vvnlaw.com)
VITALE, VICKREY, NIRO & GASEY LLP
311 S. Wacker Drive, Suite 2470
Chicago, Illinois 60606
Tel.: (312) 236-0733
Fax: (312) 236-3137
Attorneys for Keeper Security, Inc.

-5-

 Case: 1:17-cv-09117 Document #: 24 Filed: 03/07/18 Page 7 of 7 PageID #:100

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on March 7, 2018 the foregoing
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE
was filed electronically with the Clerk of the Court for the Northern District of Illinois using the
Court’s Electronic Case Filing System, which will send notification to the registered participants
of the ECF System as listed:
Natalie J. Spears
Gregory R. Naron
Jacqueline A. Giannini
DENTONS US LLP
233 S. Wacker Drive, Suite 5900
Chicago, Illinois 60606
(312) 876-8000
Natalie.spears@dentons.com
Gregory.naron@dentons.com
Jacqui.giannini@dentons.com
Counsel for Defendants Dan Goodin and
Advance Magazine Publishers Inc.

I certify that all parties in this case are represented by counsel who are CM/ECF
participants.
/s/
Dean D. Niro
Attorney for Keeper Security, Inc.

-6-