Wild Times

The United States Court of Appeals for the Ninth Circuit affirmed the dismissal of an action brought against the attorney of the plaintiff’s  ex

The facts of this case would not seem out of place as the plot of a daytime soap opera. They arise out of a love triangle between Gunn, her ex (Wild, a wealthy Swiss businessman), and Drage (Wild’s former attorney and new girlfriend). Before 2016, Gunn and Wild had been involved in a close personal and professional relationship for approximately thirty years. Sometime in 2015 or 2016 – the exact dates are disputed – they decided to break up. To establish the terms of their breakup, on December 21, 2015, Gunn and Wild entered into the [Release and Settlement Agreement]. It provided, among other things: that (a) Wild would make a tax-free gift of approximately $60 million to Gunn by December 31, 2015; (b) Gunn would transfer three properties (the “Dossenheim Properties”) to an entity designated by Wild in exchange for payment of $2.78 million; (c) for a period of 10 years, Wild would transfer an additional $3.5 million annually to Gunn, with the first payment to be sent on January 15, 2016; (d) by March 15, 2016, Wild would transfer $20 million for an educational trust fund; and (e) Wild would pay certain of Gunn’s expenses.

The RSA did not end the dispute. After mutual threats of litigation, Wild filed suit in Europe.

Drage knew both and had represented a Wild business.

Drage then undertook representation when Gunn sued Wild in Nevada federal court, alleging breach of the RSA

Sometime during the month that Gunn filed this action, Wild and Drage also began a personal relationship. Gunn learned of the personal relationship between Drage and Wild on October 7, 2017.

Then

In September 2019, Gunn commenced the underlying action against Drage in Orange County Superior Court. She alleged intentional interference with a contract and civil conspiracy. In her complaint, Gunn alleged that despite “Wild partially perform[ing] his obligations under the RSA,” he had “breached many of the financial and nonfinancial terms of the RSA since” beginning his relationship with Drage. Specifically, Gunn claimed that “Wild breached the RSA by, among other things, failing and refusing to make the annual tax-free gifts to Gunn [which were slated to begin as of January 15, 2016], failing and refusing to make the payment to establish the educational trust fund [on March 15, 2016], and failing and refusing to pay [her] expenses.”

Gunn went on to contend that “by virtue of her relationship with Wild” “Drage became aware of the terms of the RSA …and caused and persuaded Wild to breach” it “in whole or in part.” Gunn included the RSA and the related indemnification agreement as exhibits to her complaint. She sought recovery of $150 million in damages, as well as punitive damages.

Notably, Gunn’s complaint did not disclose any facts surrounding Drage’s representation of Wild, although she knew that Drage was representing Wild and had asserted attorney-client privilege claims in other lawsuits as recently as two months prior.

The case was removed to California federal court where Drage sought anti-SLAPP protection

On April 10, 2020, the district court granted Drage’s anti-SLAPP motion, dismissing with prejudice the action in its entirety (the “April 10 Order”).

The court

Here, the district court correctly evaluated Drage’s challenge as a factual one based on her own statements in her anti-SLAPP motion and her reliance on extrinsic evidence at both steps.

Affirmed

Under this broad standard, Drage’s actions, including counseling Wild “in anticipation of litigation,” easily qualify. Pech, 290 Cal. Rptr. 3d at 485. For the purposes of this analysis, a court need not resolve whether Wild actually retained Drage as his lawyer, or if she merely advised him as a prospective client. Both are protected activities when undertaken in connection with litigation seriously contemplated in good faith at the time these communications took place, as was the case here. When Wild purportedly reached out to Drage in October 2016, litigation regarding the RSA was already ongoing in Switzerland, with more to follow in jurisdictions where Drage was licensed.

Oral argument is linked here. (Mike Frisch)