Tamara Wareka v. Trusper Inc.

Background

Tamara Wareka filed an anti-SLAPP motion seeking to strike Trusper Inc.’s counterclaim. Anti-SLAPP laws provide a procedure for challenging claims arising from protected speech or petitioning activity. The court stated that Wareka had shown that Trusper’s counterclaim arose from her First Amendment right to petition.

Because discovery had not yet occurred, the court construed the motion as challenging the legal sufficiency of the pleadings. It therefore did not resolve the parties’ factual disputes or consider the exhibits attached to the briefing, except for the Mai Couture Settlement Agreement, which Trusper incorporated into its counterclaim.

Court’s analysis

The court held that Trusper had plausibly alleged a breach-of-contract claim. The counterclaim alleged that the Mai Couture Settlement Agreement released claims related to “the Image” against Mai Couture and people acting with Mai Couture or under its direction or control. The court determined that “the Image” clearly referred to the Mulder photograph.

The counterclaim also plausibly alleged that the photograph appeared on Trusper’s social-media pages because of an action taken by, or with, Mai Couture. The allegations included that the Trusper post promoted the same Mai Couture product, cropped the photograph in the same way as the Mai Couture post, and included a shoppable link to Mai Couture’s product. The court noted that discovery might show Trusper was wrong about the post’s origin, but said that issue could be addressed on summary judgment or through a renewed anti-SLAPP motion after discovery.

The court also found that Trusper plausibly alleged damages. Trusper claimed that it incurred and continued to incur attorneys’ fees defending against Wareka’s infringement lawsuit. Wareka argued that the American Rule generally requires each side to pay its own litigation expenses. The court distinguished between attorneys’ fees sought as litigation costs after winning a case and attorneys’ fees alleged as consequential damages caused by a breach of contract. It concluded that the American Rule did not prevent Trusper from plausibly pleading the latter type of damages. The court also noted that, even if those fees could not ultimately be recovered as damages, Trusper could receive nominal damages recognizing a breach.

Ruling

Judge Chhabria denied Wareka’s anti-SLAPP motion to strike Trusper’s counterclaim, subject to renewal after the discovery period. The court did not award Trusper the fees and costs it requested for defending the anti-SLAPP motion because the unclear state of the law meant the motion could not be deemed frivolous or brought solely to cause unnecessary delay.