MEMORANDUM OPINION AND ORDER
Underground Solutions, Inc. (UGSI) has sued Eugene Palermo, asserting claims of trade libel, intentional interference with prospective economic advantage, violation of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS § 510/2(a)(7) & (8), and the Lanham Act, 15 U.S.C. § 1125(a), and tortious interference with contract. UGSI bases its claims on Palermo’s alleged distribution and presentation of information that it alleges contained defamatory information about UGSI’s products. UGSI alleges that Palermo presented this information at conferences and published it on his website. Palermo has moved to dismiss UGSI’s complaint. He has also filed a motion to strike, arguing that California’s statute against strategic lawsuits against public participation (SLAPP) governs this dispute and warrants striking UGSI’s state law claims. For the reasons stated below, the Court denies Palermo’s motion to strike.
Background
The Court has taken the following facts largely from UGSI’s complaint. UGSI is a
UGSI alleges that Palermo is a paid spokesman for Performance Pipe, an HDPE pipe manufacturer. Id. ¶22. It also alleges that Palermo is a Tennessee resident.' Id. ¶ 17. UGSI contends that Palermo “intentionally disseminated, verbally and in writing, false and misleading information about the quality, characteristics, and reliability of Fusible PVC™ pipe and thermally butt-fused PVC joints.” Id. ¶ 9. Specifically, UGSI alleges that Palermo provided this false information in presentations to industry participants at various conferences and also through his website starting in 2010. Id. ¶¶23-24.
Discussion
If a district court is sitting in diversity, it “must apply the choice of law principles of the forum state ... to determine which state’s substantive law governs the proceeding.” West Bend Mut. Ins. Co. v. Arbor Homes LLC,
The parties also agree that Illinois follows the doctrine of dépe§age, which “ ‘refers to the process of cutting up a case into individual issues, each subject to a separate choice-of-law analysis.’ ” Chi v. Loyola Univ. Med. Ctr.,
Palermo argues that the Court should apply California’s anti-SLAPP statute to UGSI’s state law claims. See Cal. Civ. Proc. Code § 425.16. Palermo contends that California’s law should apply because UGSI is domiciled in California and because Palermo’s slideshow partly concerns “two catastrophic pipe failures occurring in California.” Def.’s Mem. at 5-6. In his reply, Palermo expands upon this argument to contend that “(i) no speech originated in Tennessee; (ii) the speech touched on matters of public concern for many states, including California, but not Tennessee; (iii) a California citizen filed this lawsuit; (iv) any injury would have been experienced in California; and (v) the parties have litigated some of the matters in the courts of the State of California.” Def.’s Repl. at 5. All told, Palermo says, “California has the strongest connection to the conduct that anti-SLAPP statutes protect.” Id. at 2. He also bases his argument on the fact that his home state of Tennessee does not have a strong interest in having its law applied, because no allegedly offending speech originated there but instead occurred in multiple other states. If California’s anti-SLAPP statute applies, Palermo argues, the Court must strike UGSI’s state law claims, because Palermo’s speech qualifies for protection under the statute and because UGSI cannot show that it will prevail on the merits of these claims.
UGSI responds that Palermo is a resident of Tennessee and that his speech did take place in Tennessee, both of which mean that Tennessee law should govern the dispute. UGSI cites this Court’s decision in Ch%
A. Chi v. Loyola Univ. Med. Ctr.
In Ch% the plaintiff alleged that he had worked in an Illinois hospital, then moved to Arizona, after which a doctor from the Illinois hospital completed forms about the plaintiffs performance there. See Chi v. Loyola Univ. Med. Ctr., No. 10 C 6292,
The Court determined that Arizona law governed the defamation claim at issue but also ruled that it needed to examine separately the question of whether Arizona’s or Illinois’s anti-S'LAPP law applied. The separate analysis was warranted because this was a question of whether the statement was privileged rather than whether it was defamatory. The Court observed that “[t]he purpose behind an anti-SLAPP law is to encourage the exercise of free speech.” Chi
Defendants in Chi were Illinois citizens, and plaintiff alleged that their defamatory speech originated in Illinois, although plaintiff himself lived in Arizona and suffered the injury there. The Court concluded that “Illinois thus has a strong interest in having its own anti-SLAPP statute applied to the issue of whether defendants are immune from liability for defamation.” Id. In the few years following Chi, other courts in this district have cited the decision with approval. See Intercon Solutions, Inc. v. Basel Action Network,
B. Selection of anti-SLAPP statute
As in Ch% and as the parties agree, the two anti-SLAPP statutes at issue (California’s and Tennessee’s) differ. Therefore “the Court must determine which state’s statute applies.” CM,
Palermo bases his argument on his own framing of what UGSI is alleging against him, despite UGSI’s arguments to the contrary. He contends that his statements were made in states other than Tennessee, arguing that “UGSI does not allege any libelous statements originating out of Tennessee.” Def.’s Mem. at 19. He continues: “UGSI never alleges that Dr. Palermo posted such information to his website while in Tennessee, that the information on his website is stored on servers in Tennessee, or even that the information on the website was ever accessed in Tennessee.” Def.’s Repl. at 4. Therefore, Palermo argues, Tennessee’s anti-SLAPP law should not apply, “because no conduct occurred in the state of Dr. Palermo’s domicile.” Id.
UGSI disagrees and says that it in fact contends that at Palermo’s offending .speech, or at least a good deal of it, originated in Tennessee. UGSI’s complaint and brief in response to Palermo’s motion do not provide specifics about Palermo’s web posting locations or servers. But UGSI’s complaint is fairly construed to allege that at least some of Palermo’s alleged defamatory activities occurred in Tennessee. Tennessee is mentioned in this paragraph in the complaint:
Palermo is, and at all times mentioned herein was, a resident of Tennessee. Palermo is engaged in a propaganda campaign, at the behest and with the knowledge and approval of Performance Pipe, to intentionally misstate the quality and characteristics of Fusible PVCtm pipe and thermally butt-fused PVC joints, as outlined below.
Compl. ¶ 17. The complaint proceeds to allege various untruths that Palermo made in a slideshow “which Palermo has pre
In addition, Palermo concedes he is a Tennessee resident. This Court said in Chi that “the place where the allegedly tortious speech took place and the domicile of the speaker are central to the choice-of-law analysis” in deciding which state’s anti-SLAPP law to apply.
Palermo also contends that the law of the victim’s domicile should apply when the defamatory speech occurred in several states. The problem with this argument is that the cases he cites to support it are not anti-SLAPP statute cases. It is true that, in the Seventh Circuit, “[w]hen the defamatory statement is communicated in many different states, it makes sense to apply the law of the plaintiffs domicile.” Kamelgard v. Macura,
In his reply, Palermo asserts that the four-factor “most significant contacts” test from Illinois supports his conclusion that applying California’s anti-SLAPP law is in harmony with this Court’s decision in Chi. He points to the third factor in Illinois’s test, the domicile of the parties. He notes that although his domicile is in Tennessee, he was “speaking as an agent of a Texas company (ie., Performance Pipe),” and he states that “none of the alleged conduct occurred in Tennessee.” Def.’s Repl. at 4-5. The fact that Palermo lives in Tennessee is an “isolated fact,” he says, and “[t]his Court’s ruling in Chi is consistent with this factor favoring California because UGSI’s domicile coincides with a state where at least some conduct occurred.” Id. This gets Chi exactly backward. As noted above, Chi stressed the importance of a speaker’s domicile in a court’s decision on which state’s anti-SLAPP law to apply and stated that “place of injury ... is less important” in “the anti-SLAPP context.” Chi,
Considering the analysis above — including the fact that Palermo’s domicile is in Tennessee and that UGSI alleges that he posted defamatory material on his website from there — the Court agrees with UGSI that Tennessee’s anti-SLAPP statute applies to this case, rather than California’s.
C. Operation of anti-SLAPP statute
Tennessee’s anti-SLAPP statute provides as follows:
Any’person who in furtherance of such person’s right of free speech or petition under the Tennessee or United States Constitution in connection with a public or governmental issue communicates information regarding another person or entity to any agency of the federal, state or local government regarding a matter of concern to that agency shall be immune from civil liability on claims based upon the communication to the agency.
Tenn. Code. Ann. § 4-21-1003(a). California’s statute includes no such limitation of the speech in question to statements made to government officials. It applies to “any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” Cal. Civ. Proc. Code § 425.16(b)(1).
UGSI contends that its “complaint does not allege a single instance where Palermo made a defamatory statement to a governmental agency.” Pl.’s Resp. at 9. It argues that the complaint specifically discusses industry conferences where Palermo made his presentations, and that contractors and engineers used the slideshows from his website. Therefore, UGSI concludes, the application of Tennessee’s antiSLAPP statute does not protect Palermo’s statements. Although Palermo does not discuss Tennessee’s statute in his initial memorandum, he does address it in a footnote in his reply. There, he states that he “directed the speech at issue to agencies of local government regarding matters of concern to those agencies.” PL’s Repl. at 2 n.l. “In this connection,” he continues,
Palermo has forfeited this point. “[A]rguments raised for the first time in a reply brief are waived.” Darif v. Holder,
Even if Palermo had not forfeited the argument, UGSI does not allege that Palermo made the defamatory statements to government officials. There is an allegation in the complaint that Palermo gave the information to two consulting firms, which in turn recommend pipe materials to “municipal ... customers.” See Compl. ¶ 34. But that is not the same thing as Palermo communicating the information to the municipalities himself, and he does not cite any authority that supports concluding otherwise. UGSI argues, and Palermo does not answer, that Tennessee courts narrowly construe this requirement, citing a district court case where statements made to the media were not protected. See Jimenez v. Vanderbilt Landscaping, LLC, No. 3-11-0276,
In sum, there is no basis in the record to infer that Palermo’s statements at industry conferences and on a website were made to public officials in a way that would render him immune from liability under the Tennessee anti-SLAPP statute. The Court concludes that the statute does not warrant striking UGSI’s claims.
Conclusion
For the reasons stated above, the Court denies Palermo’s motion to strike [docket no. 18], UGSI is directed to file a response to Palermo’s motion to dismiss [docket no. 15] by no later than June 5, 2014. Palermo is directed to file a reply by no later than June 19, 2014.
Notes
. UGSI alleges that the conferences in question took place in Florida, Minnesota, and Michigan. Compl. ¶ 25. It also says Palermo presented the information to the American Water Works Association and the Canadian Standards Association. Id. ¶ 29.
. As UGSI points out, Palermo did in his initial memorandum reference his “lectures to municipalities.” See Def.’s Mem. at 1. But he used that phrase only in the context of UGSI’s complaint, which actually contains no such reference. “Rather,” UGSI argues, "they were speeches made at industry trade conferences and petitions before nongovernmental standards setting organizations.” Pl.'s Resp. at 9 n.3. Further, this reference to municipalities was not made in the context of Tennessee's anti-SLAPP law, so it does not assist Palermo in arguing his references to the law are new in the reply and thus forfeited.