Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP, 226 Cal. Rptr. 3d 246

Background

Optional Capital (Korean VC) alleged DAS and others conspired to convert >$35M; funds traced to Alexandria and a Credit Suisse account in Geneva. DAS and Optional litigated in multiple proceedings (state, federal forfeiture, Swiss criminal).
DAS sued the Kim parties in state court; DAS later obtained a Swiss criminal freeze on the Credit Suisse funds; separate federal forfeiture litigation followed in which Optional and DAS were claimants.
In 2010–2011, the state action settled (confidentially) and the Swiss freeze was lifted; DAS received funds from the Credit Suisse account; Optional did not participate in the Swiss proceedings.
Optional sued DAS, DAS’s counsel (Akin and Parker) and others in state court for conversion, fraudulent transfer, and related claims, alleging conspiracy and vicarious liability (aiding/abetting). Defendants filed anti‑SLAPP (§425.16) motions.
The Court of Appeal had previously reversed an anti‑SLAPP ruling as to DAS itself (Optional I). On remand, defendants Akin and Parker moved to strike claims against them; the trial court granted those motions and this appeal followed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is Optional I the law of the case binding this appeal?	Optional: prior panel decision precludes relitigation; same facts/control.	Defs: prior decision involved different parties and issues, so not binding.	Not law of the case — prior opinion addressed DAS's conduct, not defendants' separate conduct.
Do plaintiff's claims "arise from" protected petitioning activity (anti‑SLAPP step 1)?	Optional: defendants are vicariously liable for DAS conduct; their acts not protected.	Defs: their conduct (settlement, filings, communications) were litigation‑related acts protected by §425.16.	Gravamen of claims is litigation‑related; defendants made prima facie showing of protected activity.
Did Optional establish a probability of prevailing (anti‑SLAPP step 2)?	Optional: circumstantial evidence and district court skepticism permit inference of conspiracy/aid.	Defs: plaintiff’s evidence is unverified, equivocal; litigation privilege bars liability; no direct proof of non‑communicative wrongful acts.	Plaintiff failed to make the required admissible prima facie showing; evidence equivocal and largely on protected communications.
Does the litigation privilege (Civ. Code §47(b)) bar Optional's claims against counsel?	Optional: Flatley exception for illegal conduct should preserve Penal Code §496 and other claims.	Defs: communications and conduct occurred in judicial/quasi‑judicial proceedings and are privileged; Flatley inapplicable without conceded or conclusively shown illegality.	Litigation privilege applies and defeats the claims as a matter of law; Flatley exception not met.

Key Cases Cited

Optional v. DAS Corp., 222 Cal.App.4th 1388 (2014) (prior panel decision addressing DAS's conduct in obtaining Credit Suisse funds)
Baral v. Schnitt, 1 Cal.5th 376 (2016) (articulates two‑step anti‑SLAPP framework and plaintiff's burden at step two)
Rusheen v. Cohen, 37 Cal.4th 1048 (2006) (definition of "arising from" protected activity)
City of Cotati v. Cashman, 29 Cal.4th 69 (2002) (focus on defendant's act underlying claim; use of §425.16(e) categories)
Navellier v. Sletten, 29 Cal.4th 82 (2002) (consideration of pleadings and supporting affidavits for step one)
Flatley v. Mauro, 39 Cal.4th 299 (2006) (narrow exception where conceded or conclusively established illegal petitioning conduct defeats anti‑SLAPP protection)
Bergstein v. Stroock & Stroock & Lavan LLP, 236 Cal.App.4th 793 (2015) (attorney litigation activities treated as protected; litigation privilege context)
Finton Construction, Inc. v. Bidna & Keys, APLC, 238 Cal.App.4th 200 (2015) (litigation privilege bars claims based on attorneys' handling of materials in litigation)
Contreras v. Dowling, 5 Cal.App.5th 394 (2016) (refusing to infer attorney‑client conspiracy from relationship alone; anti‑SLAPP evidentiary posture)
Silberg v. Anderson, 50 Cal.3d 205 (1990) (elements and purposes of Civil Code §47(b) litigation privilege)