Tort Action Against Casselman’s Law Firm Not a SLAPP—Court of Appeal

Metropolitan News-Enterprise


September 22, 2017


Page 1


Tort Action Against Casselmans Law Firm Not a SLAPPCourt of

Investigators Harmful Disclosures About a Man Soliciting Investments
Are Held to Be Extraneous to  The Inquirers Purpose in Seeking
Information to Assist in Enforcing Judgments Against the Solicitor


By a MetNews
Staff Writer



Founder, Casselman Law Group

A lawsuit against
trial lawyer David B. Casselmans firm by a company that lost a potential
investor because an investigator for the law firm bad-mouthed the companys
agent is not a SLAPP, the Court of Appeal for this district held yesterday.

opinion, by Acting Justice Michael Johnson, a Los Angeles Superior Court judge
sitting on assignment, affirms the decision of Los Angeles Superior Court Judge
Ruth Ann Kwan in denying an anti-SLAPP motion. Johnsons opinion, for Div.
Three, was not certified for publication.

action was brought Feb. 3, 2016, against Wasserman, Comden, Casselman &
Esensten, LLP, which had engaged the services of private investigator Paul
Cohen, who is also a defendant. Casselman Law Group is the successor law firm,
and Johnson refers to both law firms, collectively, as Casselman.

Casselman was the 2009 president of the California chapter of the American
Board of Trial Advocates and 2005 president of the Los Angeles chapter. He has
obtained several multi-million dollar judgments.

plaintiff is Eye Machine, LLC, headquartered in Michigan. It makes devices used
in treatment of macular degeneration.

company sued for intentional interference with prospective business advantage,
negligent interference with prospective business advantage and unfair
competition and business practices, seeking compensatory damages in an amount
in excess of $100,000.00 plus punitive damages.


conduct of which it complains is Cohen contacting Harris Hatzissmou Phillip,
who was contemplating an investment in the company of $100,000 to $150,000, and
warning him of the peril inherent in dealing with Peter Pocklington, who was
soliciting investors for Eye Machine. Pocklington, a Canadian now living in
Palm Desert, was owner of the Edmonton Oilers, a hockey team, from 1976-98 and
was a candidate in 1983 for the leadership of Progressive Conservative Party in

Casselman firm was seeking to collect on two judgments against Pocklington: one
in the amount of $806,475.60 from a U.S. district court in Florida, in favor of
a foundation and an individual, and a Canadian judgment, in favor of the
Government of the Province of Alberta, in the amount of $10 million in Canadian
dollars (about $810,600 in U.S. dollars).

purpose in contacting Phillip was to learn something of Pocklingtons finances.
He learned nothing, but provided detailed information as to Pocklingtons
activities, including his conviction for bankruptcy fraud.

Follow-Up Email

investigator followed up by sending Cohen an email, with attachments. He said:

discussed, I have attached some articles along with the docket of the Riverside
Federal Court regarding the Pocklington conviction.

he was never vindicated.

supplied the name and phone number of an FBI agent Phillip could phone to
verify the information, adding:

can also check me out by calling the attorney I am working on who represents
the Canadian Government on their judgement. His name is David Casselman.

provided the phone number.

forwarded the email to Pocklington, saying: I trust you and I will leave all
this to your judgement.

in the end, he did not invest in Eye Machine, resulting in the lawsuit.

Machine alleged in its complaint that that Cohen was acting on behalf of the
law firm and that the communications were not privileged.

Bases of Motion

anti-SLAPP motion was based on the contention that Cohens statements were in
connection with litigation, coming under Code of Civil Procedure 425.16(e)which
protects (1) any written or oral statement or writing made before ajudicial
proceeding, (2) any written or oral statement or writing made in connection
with an issue under consideration or review by a judicial body.

cited was subsection (e)(4): any other conduct in furtherance of the exercise
of the constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public interest.

appeal, Casselman abandoned the contention that Cohens statements were made
before a judicial body, but the contention that they were made in connection
with a judicial proceeding.

Relationship Too

agreed that statements in connection with post-judgment proceedings can be
covered by the anti-SLAPP statute. However, the relationship between Cohens
disclosures and the efforts to collect on two judgments was too tenuous, he
said, for the statute to apply.


Machines claims against Casselman are based on Cohens statements to Phillip
that Pocklington engaged in misconduct during his bankruptcy proceeding, was
denied a discharge in bankruptcy, had a criminal conviction and criminal
record, and engaged in other acts of misconduct. These statements were made in
a setting that was only remotely related to the litigation against
Pocklingtonan informal telephone interview in which Cohen was seeking
information about Pocklingtons assets. They were not made during a proceeding
that was sanctioned by statute or court rule, they were not made by an attorney
or an officer of the court, and they were not directed to a party or
participant in the underlying litigation.

important, the content of Cohens statements had no relationship with the
issues in the underlying litigation against Pocklington.



In this 2010 file photo, Peter Pocklington,
former owner of the Edmonton Oilers NHL hockey team, leaves the Riverside courthouse
of the U.S. District Court for the Central District of California after
agreeing to pay more than $5 million to settle a securities fraud case in


Personal Gibes

said that questions about Pocklingtons assets were relevant to the purpose of
collecting on the judgments, but that Cohens gratuitous comments about
Pocklingtons bankruptcy misconduct and criminal conviction were not,
declaring the personal gibes to bear no relationship to the purpose.

jurist went on to say:

has argued that Cohens statements about Pocklingtons bankruptcy misconduct
and criminal conviction advanced the collection efforts because Cohen
subjectively believed that his comments might encourage Phillip to reveal
information about Pocklingtons bank accounts. This is hard to believe, but in
all events the test is objective rather than subjective.


respect to Pocklington being someone in whose activities there is of public interest,
Johnson said that the appellant had provided evidence of that which was too
slight. It pointed to an article on one Canadian Internet site, with 36
comments posted by readers.

short, the Edmonton Sun internet posting is not evidence of a robust public
debate about the misdeeds of someone in the public eye; it involves a small
group of Oilers hockey fans reliving the old days and making a wide range of
sports comments that include some negative and positive things about
Pocklington, Johnson wrote. This is insufficient under section 425.16,
subdivision (e)(4).

case is The Eye Machine, LLC v. Wasserman, Comden, Casselman & Esensten,
, B270815.

attorneys on appeal were David B. Casselman, David Polinsky and Kirk S. Comer
of Casselman Law Group for the appellants and James Andrew Hinds, Jr., Paul R.
Shankman and Rachel M. Sposato of Hinds & Shankman, for Eye Machine.

did not respond to a request for comment.

said only:

are pleased with todays decision. As the underlying case is still pending, we
cannot provide further comment.


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