Can the 'Superman' lawyer SLAPP away a Warner Bros. lawsuit?

By Matthew Belloni

ANALYSIS: Back in May, when Warner Bros. brazenly sued attorney Marc Toberoff alleging he improperly convinced the families of Superman creators Jerry Siegel and Joe Shuster to repudiate deals with Warners-owned DC Comics, we noted the risk of targeting Toberoff personally when the allegations focused mostly on his relationship with his own clients, rather than on how he allegedly interacted with the studio in its long-running litigation over the Man of Steel. 

Now Toberoff is echoing our curiosity, filing court papers on Friday to dismiss the "desperate and cynical" case in part based on California's so-called anti-SLAPP law, because, he argues, the lawsuit violates his rights to represent his clients aggressively. 

"DC's retaliatory claims strike at the heart of the 'Superman' heirs' right to zealous representation by an attorney to pursue their statutory rights in filings with the U.S. Copyright Office, in settlement negotiations and in the courts" Toberoff argues.

That may be true, but the Warner Bros. suit isn't necessarily without merit. Toberoff has long been characterized by some as Hollywood's equivalent of an ambulance chaser, seeking out clients with potentially valuable rights and reaping a big chunk of the reward when he successfully reclaims intellectual property. To that end, Warners argued in its complaint that Toberoff entered into shady joint ventures with the Siegel and Shuster families (he argues in the court papers that he has been in business with the families only as their attorney for at least the past five years).  

Regardless, it was clear to us from the day Warners went after Toberoff personally that the studio did so only because it was backed into a corner. The rulings haven't been going its way, and if Toberoff's clients are allowed to capture key rights in Superman in 2013, as is possible, a planned Christopher Nolan-produced film or any other adaptation in the lucrative franchise could be jeopardized. 

That's why the studio dumped its legal team, hired the aggressive "Winnie the Pooh" litigator Daniel Petrocelli, and boldly tried to punish and embarrass Toberoff in front of his clients and a new judge in the case. 

But does that mean that U.S. District Court Judge Otis Wright should should toss the Toberoff suit on anti-SLAPP grounds? Not necessarily. These controversial motions, initially conceived to prevent legal retaliation against those who speak their minds in public forums, are often trotted out to strike claims that have only the most tenuous connection to core free speech values. Ironically, they are a tool that studios often employ to escape lawsuits based on the content of their films (remember those "Borat" suits?), and now the law is potentially being exploited against the biggest studio in Hollywood. 

Will the argument be convincing? We'll see. The trend in Hollywood litigation seems to be in favor of courts granting anti-SLAPP motions.  

But one thing is certain: In raising the anti-SLAPP issue, Toberoff is also forcing Warners' hand. Such motions require a two-step analysis: If Toberoff shows that the Warners lawsuit arises out of activities that fall under anti-SLAPP protection (a fairly low bar), the burden then shifts to the studio to show that there is a "reasonable probability" it will win on the merits of the overall case. 

That means Warners will likely end up having to prove its claims against Toberoff very soon (the hearing is scheduled for October 18). All its evidence of alleged Toberoff wrongdoing will then have to come out, Toberoff will get a chance to respond, and a judge will decide if the studio has a case. If not, game over.  

It's a potentially expensive gamble. If Warners loses, it could even be forced to pay Toberoff's legal fees. And there's that malicious prosecution action he's promised. If that happens, this lawsuit could end up being the SLAPP heard around the superhero world.