Background
ALS United Greater San Diego (formerly the Greater San Diego Chapter of The ALS Association) separated from its national parent organization, The ALS Association, after failed merger negotiations. The Chapter’s board voted in July 2023 not to merge, concluding that conditions precedent to the merger were unsatisfied and that the Association had obtained a prior Transfer Agreement through false pretenses. The Chapter changed its name to ALS United in January 2024 and continued operating as an independent nonprofit serving ALS patients in the San Diego area.
Following the separation, the Association sent communications to donors, healthcare providers, and constituents describing ALS United as a “new organization entirely, with very limited resources” and casting doubt on its ability to serve the ALS community. ALS United sued the Association on 16 counts, including trade libel, interference with prospective economic relations, unjust enrichment, and unfair competition, among others. The Association responded with a special motion to strike seven of those counts under California’s anti-SLAPP statute (Code Civ. Proc., section 425.16), arguing the communications were protected speech on a matter of public interest.
The trial court granted the anti-SLAPP motion on two counts (misappropriation of name or likeness, which ALS United conceded) and denied it on the remaining five. The Association appealed the denial.
The Court’s Holding
The Fourth District reversed the trial court in significant part. The court first rejected ALS United’s argument that the commercial speech exemption to the anti-SLAPP statute applied, holding that the Association is primarily engaged in charitable activities rather than “selling or leasing goods or services” as required under Code of Civil Procedure section 425.17, subdivision (c). The court then applied the two-part FilmOn test and found that the Association’s statements concerned a public issue — namely, the organizational split and its impact on ALS patients, families, donors, and healthcare providers in the San Diego area — and that the statements contributed to public discussion of that issue.
Turning to the second prong of the anti-SLAPP analysis, the court held that ALS United failed to show a probability of prevailing on its trade libel, intentional interference, and negligent interference claims because the Association’s statements were nonactionable opinions rather than provably false assertions of fact. The court characterized the Association’s mass email describing ALS United as “new” with “limited resources” as “puffery” and found that a board member’s informal email questioning ALS United’s capabilities was opinion protected by the First Amendment. The court ordered counts 1, 4, 5, 7, and 8 stricken entirely.
As to the unjust enrichment and unfair competition counts, the court applied the “mixed cause of action” framework from Baral v. Schnitt, striking the portions based on trade libel, misappropriation, or interference with economic relations, while allowing the portions based on conversion, fraud, and breach of contract to survive. The court remanded with directions for the trial court to enter a new order consistent with its opinion.
Key Takeaways
- Statements by a nonprofit organization about an organizational split that affect donors, patients, and healthcare providers in a community qualify as speech on an “issue of public interest” under the anti-SLAPP statute, even when the speech is part of a competitive dispute between two nonprofits.
- Characterizations of a rival organization as “new” or having “limited resources” are nonactionable opinions and puffery when they are subjective assessments supported by disclosed underlying facts, and they cannot sustain trade libel or interference claims.
- Under Baral v. Schnitt, when a single cause of action contains allegations based on both protected and unprotected activity, courts must strike only the protected-activity allegations rather than dismissing the entire count — preserving the plaintiff’s claims based on unprotected conduct such as conversion or breach of contract.
Why It Matters
This case provides important guidance for nonprofit organizations navigating public communications during organizational splits, mergers, or disputes. It confirms that the anti-SLAPP statute extends robustly to nonprofit speech, even when the statements at issue are made to recruit donors or retain constituents in a competitive charitable landscape. The commercial speech exemption does not apply to organizations primarily engaged in charitable rather than commercial activities.
For practitioners, the decision reinforces the high bar plaintiffs must clear at the second prong of an anti-SLAPP motion when the challenged statements are framed as opinions. Organizations involved in public disputes should ensure their communications are grounded in disclosed facts and phrased as subjective assessments, as such statements are more likely to be treated as protected opinion. At the same time, the ruling demonstrates that anti-SLAPP protections do not shield all conduct arising from an organizational dispute — claims grounded in conversion, fraud, or breach of contract remain viable even when intertwined with protected speech.