Ojjeh agreed to give $180,000 to help make a documentary about the Syrian refugee crisis. But in April 2018, he sued Brown, accusing him of misappropriating the money and failing to make progress on the film.
So far, it was fairly garden variety business dispute. But Brown found an unusual way to fight back. His attorneys filed a motion to strike the complaint under California’s anti-SLAPP statute, which protects free speech on matters of public interest from frivolous litigation. In effect, they argued that by filing suit, Ojjeh was trying to stifle discussion of Syrian refugees.
“We’ve been working on a very important film on a very important topic,” Brown told Variety. “We put our heart into it. The effect of a lawsuit is to halt the progress, and prevent distribution, and prevent it from getting out there.”
Ojjeh’s lawyers argued that he wasn’t trying to prevent Brown from speaking about Syria. Instead, Ojjeh was suing him because he hadn’t.
“Basically the guy took the money and ran,” says Mark Figueiredo, who represented Ojjeh. “We should have some legal recourse… The gist of the (anti-SLAPP) claim has to concern the speech. This concerns the absence of speech.”
The anti-SLAPP law is generally deployed to defeat defamation and libel lawsuits, and the trial judge rejected Brown’s attempt to apply it to a business dispute.
But Brown appealed, and on Tuesday a three-judge panel of the First Appellate District overruled the trial court, ruling that Brown’s conduct should enjoy free speech protection.
“Defendants’ solicitation of investments from plaintiff and their performance of allegedly unsatisfactory work on the uncompleted documentary constituted activity in furtherance of their right of free speech in connection with an issue of public interest,” wrote Justice Carin T. Fujisaki, for a unanimous court. “The order denying the anti-SLAPP motion is reversed.”
The case was sent back to the trial court for further litigation of the anti-SLAPP motion.
The ruling expands what is considered “speech” for anti-SLAPP purposes, and could create a helpful precedent for defendants in investor fraud suits.
“Investor beware,” Figueiredo says. “If word gets out, no one is going to invest in documentaries anymore.”
The appeals court noted that the Syrian refugee crisis is obvious a subject of public concern, but in a footnote suggested that the ruling could apply to all sorts of films or other “expressive works.”
“Could this be a new arrow in the quiver of defendants?” asks Nicholas Soltman, an entertainment attorney at Kinsella Weitzman. “You’d really be foolish not to at least try.”
As for Brown, he says he has since scraped together the money to finish the documentary, called “Dreams at Sea.” The lawsuit represented a significant setback, but he is now taking the film to festivals.
“If you’re using the legal system to block a documentary from progressing and being released, that’s an abuse of the legal system,” Brown says. “That’s what was going on here.”