## Facts

- JAMS, Inc. provided private alternative dispute resolution services by marketing and arranging the hiring of neutrals, including retired judges, through its website.
- JAMS’s website promoted its neutrals as “trusted experts” and represented that JAMS was dedicated to “neutrality, integrity, [and] honesty.”
- A JAMS website profile for retired Justice Sheila Prell Sonenshine included a resume describing substantial business and financial experience, including founding and managing two business ventures.
- Kevin J. Kinsella, a party in a high-asset marital dissolution matter, reviewed JAMS’s website materials and selected Sonenshine as a privately compensated temporary judge/neutral, allegedly relying on the described business expertise.
- Kinsella later alleged that the promotional materials were misleading, including by omission of information such as Sonenshine’s involvement in prior fraud litigation connected to a listed venture.
- Kinsella sued JAMS and Sonenshine asserting claims based on alleged misrepresentations and omissions in their marketing and profile materials, including unfair competition and related misrepresentation theories.

## Issues

1. Whether the lawsuit arose from commercial advertising or promotion within Code of Civil Procedure § 425.17(c), making it exempt from the anti-SLAPP statute, Code of Civil Procedure § 425.16.
2. Whether website statements and a neutral’s posted resume constitute “representations of fact” about the seller’s services under § 425.17(c), even if some language could be characterized as opinion or puffery.
3. Whether omission-based theories can fall within § 425.17(c) when the claims arise from affirmative promotional materials.
4. Whether the statements were made for the purpose of promoting or securing sales of services and directed to actual or potential customers.

## Decision

- The Court of Appeal denied the petition for writ of mandate challenging the trial court’s ruling.
- The court held the action fell within the commercial-speech exemption in § 425.17(c), so JAMS and Sonenshine could not invoke anti-SLAPP procedures under § 425.16.
- The appellate stay of trial court proceedings was vacated, and the case was permitted to proceed on the merits in the superior court.

## Legal Principles

- Under Code of Civil Procedure § 425.17(c), a cause of action is exempt from anti-SLAPP where it is brought against a person primarily engaged in selling goods or services and arises from factual representations about that person’s (or a competitor’s) business operations, goods, or services made to obtain approval for, promote, or secure sales or commercial transactions, and directed to actual or potential buyers or customers.
- A private ADR provider that markets and arranges the hiring of neutrals is “primarily engaged” in selling services for purposes of § 425.17(c).
- For § 425.17(c), the inquiry is whether the challenged communications are factual representations in a commercial promotional context; the exemption is not limited to statements ultimately proven actionable under substantive fraud or consumer statutes.
- Omission-based misrepresentation claims may still fall within § 425.17(c) when the alleged omissions relate to, and are claimed to make misleading, affirmative promotional representations that induced the commercial transaction.
- Promotional website profiles and resumes describing a professional neutral’s experience and qualifications can constitute commercial representations about services aimed at potential customers.

## Conclusion

The court held that claims alleging misleading website marketing and profile materials used to induce the hiring of a JAMS neutral were exempt from anti-SLAPP under the commercial-speech exemption, requiring litigation to proceed without § 425.16’s special motion-to-strike procedure.


JAMS, Inc. v. Superior Court, 1 Cal. App. 5th 984, 205 Cal. Rptr. 3d 307 (Ct. App. 2016)