(CN) - A California lawyer cannot use immunity to fend off a legal malpractice class action from Filipino teachers who fell victim to an unfair recruiting scheme, the 9th Circuit ruled Wednesday.
Robert Silverman faces claims by a group of Filipino teachers who were allegedly lured to the United States with the promise of working for Louisiana public schools. The teachers said they each paid a recruitment firm $15,000, only to end up defrauded, exploited and thrust into deep debt.
Silverman allegedly secured their non-immigrant visas, according to the complaint, which alleged violations of the Trafficking Victims Protection Act (TVPA) and the Racketeer Influenced and Corrupt Organizations Act (RICO), as well as breach of fiduciary duty and legal malpractice.
Silverman made an unsuccessful bid to strike the teachers' claims under California's anti-SLAPP (strategic lawsuit against public participation) law in 2011. The trial court also refused to grant Silverman immunity under the Noerr-Pennington doctrine, which generally frees from liability those who petition the government for help.
Though a jury nixed the human trafficking claims, it found after a seven-day trial in December 2012 that the recruiting firm had violated a state law associated with the operation of an employment agency. The jury also held the firm liable for negligent misrepresentation and unfair competition.
Meantime, Silverman took the immunity questions to the 9th Circuit.
The federal appeals court in Pasadena refused to consider the merits of Silverman's motion for immunity from liability under the Noerr-Pennington doctrine. It found Wednesday that the issue is not appealable save from a final judgment. In a separate unpublished memorandum, the court also denied Silverman's state-level anti-SLAPP motion.
"Silverman's anti-SLAPP motion to strike fails because he has not shown that the plaintiffs' state law claims of legal malpractice and breach of fiduciary duty arise from 'an act in furtherance of the defendant's rights of petition or free speech,'" the unsigned decision states.
"The plaintiffs' claims focus on Silverman's obligations to them, as his putative clients, not on his petitioning of the government on their behalf," the judges added. "The record contains prima facie evidence that Silverman was, in fact, the plaintiffs' attorney and affirmatively identified himself as such. We need not, at this stage, reach the merits of plaintiffs' claims or their probability of prevailing at trial. Whether or not the allegations of professional malpractice are colorable, under California law, the conduct from which they arise is not petitioning activity within the anti-SLAPP statute."
Developed in the antitrust context, the immunity doctrine that Silverman failed to secure takes its name from two roughly 50-year-old U.S. Supreme Court decisions, Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc. and United Mine Workers v. Pennington. The court noted that the doctrine has since been extended to other statutory schemes.
A March 14 order shows that the plaintiffs voluntarily dismissed their RICO and state-law fraud claims, and that Universal Placement International withdrew its counterclaims.
Silverman formerly controlled the controversial weight loss firm 1-800-Get-Thin but resigned last year in the wake of five patient deaths, the Los Angeles Times reported.
In September 2011, he accused Los Angeles Times business columnist Michael Hiltzik of recording their telephone conversations without his consent, in violation of California wiretap law. 1 800 Get Thin LLC sued the same columnist earlier that year for writing "fraudulent and misleading" columns about it.
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