May 23, 2022

Volume XII, Number 143

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May 23, 2022

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If Form 10-K Statements Are "Protected Activity", What About Form 8-K and 10-Q Filings?

Yesterday's post concerned the California Court of Appeal's holding that statements made in a Form 10-K were "protected activity" under California's Anti-SLAPP statute because they were made "in connection with an issue under consideration or review by [an] official proceeding".  Sugarman v. Brown, 2021 Cal. App. LEXIS 1089.  In a separate opinion, the Court of Appeal reached the same conclusion with respect to statements made in Form 8-K and Form 10-Q filings.  Sugarman v. Benett, 2021 Cal. App. LEXIS 1088.  

Both decisions involved filings under the Securities Exchange Act of 1934.  Does the same conclusion apply to registration statements filed under the Securities Act of 1933.  In  Moser v. Encore Capital Group, Inc.,  2006 U.S. Dist. Lexis 109142, the District Court held that the defendants failed to meet their burden of showing that the statements arose from "protected activity" under the Anti-SLAPP statute because "the purpose of a Form S-1 is not to trigger or commence an investigation, and since the employment dispute . . . was not an issue under consideration or review before the SEC".  While not agreeing with the federal court's ruling, the Court of Appeal found it to be inapt to the facts presented in Sugerman.

The California Court of Appeal also held that statements related to financial projections were also protected under as matters of public interest under Section 425.16(e)(4) of the California Code of Civil Procedure.

© 2010-2022 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XI, Number 364
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About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
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Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

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