Monster Energy Co. v. Schechter, 26 Cal. App. 5th 54

Background

Plaintiffs Richard Fournier and Wendy Crossland settled with Monster Energy; the written settlement included broad confidentiality provisions stating "Plaintiffs and their counsel agree" to keep terms and existence of the settlement confidential.
Plaintiffs were represented by the R. Rex Parris Law Firm and attorney Bruce Schechter; Schechter signed beneath the legend "Approved as to form and content" in the agreement.
Schechter gave an interview to Lawyersandsettlements.com in which he disclosed the settlement's existence, that a monetary recovery had been reached, and that Monster wanted the amount sealed; the interview was published online.
Monster sued the Attorneys for breach of contract (among other claims). The Attorneys brought an anti‑SLAPP (Code Civ. Proc. §425.16) special motion to strike; the trial court denied the motion as to the breach‑of‑contract claim, finding counsel were bound by the confidentiality provisions.
On appeal the court examined whether the Attorneys were parties to the settlement (and thus could be liable for breaching confidentiality) and whether the commercial‑speech exemption applied to the interview.

Issues

Issue	Plaintiff's Argument (Monster)	Defendant's Argument (Attorneys)	Held
Whether counsel were parties to the settlement such that they could be sued for breach	The settlement expressly bound "Plaintiffs and their counsel" and counsel signed the agreement, so counsel are contractually bound	Counsel signed only as attorneys under "Approved as to form and content" and did not consent to be parties; a client cannot bind its attorney	Counsel were not parties; signing under "approved as to form and content" manifests approval of form/content, not consent to be bound
Whether plaintiffs can bind their attorneys without attorneys' consent	The agreement's recitals and warranties imply Plaintiffs had authority to bind those they represent	Agency principles bar a principal from binding an agent absent the agent's consent; Plaintiffs' declarations cannot prove an attorney's agency or consent	A client cannot unilaterally bind an attorney; the Fourniers could not bind their counsel to the contract
Whether the interview constituted unprotected commercial speech (exemption to anti‑SLAPP)	Schechter's statements were commercial: article solicited leads and benefitted counsel/practice, so the commercial‑speech exemption applies	The statements were protected speech and there was insufficient evidence counsel intended to solicit clients or obtain commercial benefit	Trial court reasonably found insufficient evidence of commercial purpose/intent; exemption did not apply on this record
Whether Monster demonstrated a probability of prevailing on breach‑of‑contract claim (anti‑SLAPP second prong)	Monster argued the contract and signatures show likelihood of success	Attorneys argued lack of mutual assent and absence of objective manifestation to be bound; anti‑SLAPP requires plaintiff show probability of prevailing	Monster failed to show a probability of prevailing; anti‑SLAPP motion should have been granted for the Attorneys

Key Cases Cited

Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (2011) (anti‑SLAPP two‑step analysis and standard of review)
Simpson Strong‑Tie Co. v. Gore, 49 Cal.4th 12 (2010) (commercial‑speech exemption to anti‑SLAPP is statutory and narrowly construed)
Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980) (commercial speech receives First Amendment protection subject to intermediate scrutiny)
Freedman v. Brutzkus, 182 Cal.App.4th 1065 (2010) (attorney signature "approved as to form and content" signifies approval of form/content, not intent to be bound)
RSUI Indem. Co. v. Bacon, 282 Neb. 436 (2011) (applying Freedman: counsel signing similar legend not personally liable under settlement)
Mitsui O.S.K. Lines, Ltd. v. Dynasea Corp., 72 Cal.App.4th 208 (1999) (party cannot bind another to a contract absent that other's assent)