PLEASE TAKE NOTICE THAT on December 3, 2014, at 2:00 p.m., or as soon thereafter as the matter may be heard, in Courtroom 2, 17th Floor of the above-entitled court located at 450 Golden Gate Avenue, San Francisco, CA 94102, Defendant Jim Chanos will and hereby does move this Court for an Order striking the sole cause of action in Plaintiffs’ Complaint pursuant to California Code of Civil Procedure §425.16. Jim Chanos requests that the Court strike Plaintiffs’ Complaint because it arises from Jim Chanos’s exercise of his right of free speech under the United States and California Constitutions, and because Plaintiffs cannot establish a probability that they will prevail on the merits of their claim.
Jim Chanos bases this motion upon this Notice of Motion and Motion, the supporting Memorandum of Points and Authorities, the Request for Judicial Notice and Declarations of Kenneth G. Hausman and Jim Chanos and the exhibits attached thereto, the pleadings and other papers on file in this action and upon such other argument or evidence as may be presented prior to the Court’s determination of this matter.
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Jim Chanos vs Stephen Wynn: Chanos Motion to Strike – Introduction
The Complaint by Plaintiffs Stephen A. Wynn and Wynn Resorts Limited (“Wynn Resorts”) alleges that Jim Chanos defamed them when he “stated that Wynn and Wynn Resorts, Limited (NASDAQ:WYNN) had violated the Foreign Corrupt Practices Act” to a “private audience” at an “‘invitation only’ event” on April 25, 2014, in Berkeley, California. Compl. ¶¶12-13.1 Jim Chanos said no such thing. The “event” was a panel discussion at an annual academic symposium devoted to investigative reporting at the University of California, Berkeley Graduate School of Journalism concerning a PBS Frontline documentary on gambling in Macau. Jim Chanos, one of four panelists at the event, answered a question from the moderator, explaining why he “got out of” his stock investments in Macau casino operators: “I began to really get concerned about the risk I was taking with clients’ money under Foreign Corrupt Practices Act and a variety of, you know, aspects of exactly how business is done there.” Request for Judicial Notice (“RJN”) Ex. 1 (Transcript of symposium (“Transcript”)) at 6 (emphasis added).
This suit is an attempt by Mr. Wynn, “a well-known public figure” (Wynn v. Smith, 16 P.3d 424, 426 (Nev. 2001)) and principal of a major international gambling enterprise and public company, to chill discussion about Wynn Resorts’ Macau operations and Macau casino operators in general. It is a classic “strategic lawsuit against public participation” and precisely what California’s special motion to strike (Cal. Code Civ. Proc. §425.16) was enacted to address: “The point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.” People ex rel. Lockyer v. Brar, 115 Cal. App. 4th 1315, 1317 (2004) (emphasis in original). As the Ninth Circuit has held, “the statute was designed to allow courts to promptly expose and dismiss meritless and harassing claims seeking to chill protected expression.” Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010) (citation and internal quotation marks omitted).
This baseless suit should be dismissed now and, per the anti-SLAPP statute, Plaintiffs should be ordered to reimburse Jim Chanos for the legal fees he has been forced to incur by their having brought it. The Complaint’s single claim for slander per se (Compl. ¶14) indisputably arises from Jim Chanos’s “right of . . . free speech under the United States Constitution or the California Constitution in connection with a public issue” (Cal. Code Civ. Proc. §425.16(b)(1)): He was speaking as a panelist at a university symposium about a public-television-produced documentary.
Under the anti-SLAPP statute, the burden therefore shifts to Plaintiffs to demonstrate a probability of prevailing on the merits of their claim. See Part III(B), infra.
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