Parkmerced Investors Properties LLC v. Does [1]

Two real estate companies, Parkmerced Investors Properties LLC and Stellar Larkspur Partners LLC, sued eighteen unknown defendants for violation of the Lanham Act (15 U.S.C. § 1125(a) [2]), libel, and tortious interference with contract.  The lawsuit, filed in federal court in California, revolves around anonymous and pseudonymous postings to Apartment Ratings [3], a forum site that invites discussion about residential apartment buildings in locations throughout the United States.

Parkmerced Investors Properties LLC owns Parkmerced [4], a community of 3000+ units in San Francisco.  Stellar Larkspur Partners LLC owns the Larkspur Shores Apartment Homes [5], a community of about 350 apartments in Larkspur, California. In the last couple of years, users of Apartment Ratings [3] have posted a large number of comments, both positive and negative, about these two properties.  Some of the postings deal with issues like increasing rents and other expenses, maintenance problems, construction noise, crime, and the responsiveness of management to complaints. 

In their complaint [6], Parkmerced and Stellar Larkspur identify eighteen allegedly false and misleading statements, all of which purport to relate personal experiences of persons living in or visiting the Parkmerced and Larkspur Shores properties.  They maintain that these false statements not only constitute libel, but violate the Lanham Act:  "Defendants' activities constitute false or misleading descriptions of fact and false or misleading representations of fact in violation of §43(a) of the Lanham Act, 15 U.S.C. § 1125(a)[,] because Defendants misrepresent the nature, characteristics and qualities of the Apartments." Cmplt. ¶ 33 [6].  While this looks like a false advertising claim under  15 U.S.C. § 1125(a)(1)(B) [2], there is some indication that the plaintiffs mean to bring a "general Lanham Act claim for misuse of trademark under section 43(a)[, 15 U.S.C. § 1125(a)(1)(A) [2]]."  Affidavit of Paul Alan Levy, ¶ 8 [7].

Parkmerced and Stellar Larkspur have subpoenaed Apartment Ratings [3], asking for information identifying the authors of the critical comments made about them.  They asked for the identities of those users who wrote the eighteen statements quoted in the complaint, as well as other users who wrote things not specifically mentioned in the complaint.  One of those users contacted Paul Levy, who filed a brief [8] asking the court for a protective order against the subpoena and moving to strike the plaintiffs' state-law claims under the California anti-SLAPP statute (Cal. Code Civ. Proc. § 425.16 [9]). 

Mr. Levy argued that the website's anonymous posters have a qualified right to engage in anonymous speech, and that the plaintiffs' facially invalid Lanham Act claim cannot justify disclosing the posters' identities.  (Without the Lanham Act claim, the federal court has no subject-matter jurisdiction over the case, so the potential merit of the libel and tortious interference claims should not matter.)  Based on the same weakness, Mr. Levy argued that the plaintiffs could not establish the probability of success required to survive his client's anti-SLAPP motion to strike.