FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIM CARTER MARTINEZ, on 

behalf of herself and all others 

similarly situated, 

Plaintiff-Appellee, 

 v. 

ZOOMINFO TECHNOLOGIES, 

INC., a Delaware corporation, 

Defendant-Appellant.

No.22-35305 

D.C. No.

3:21-cv-05725-

MJP 

OPINION

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted April 14, 2023

Seattle, Washington

Filed September 21, 2023

Before: M. Margaret McKeown and Roopali H. Desai, 

Circuit Judges, and Roslyn O. Silver,* District Judge.

* The Honorable Roslyn O. Silver, United States District Judge for the 

District of Arizona, sitting by designation.
2 MARTINEZ V. ZOOMINFO TECH. INC.

Opinion by Judge McKeown;

Concurrence by Judge McKeown;

Concurrence by Judge Desai

SUMMARY**

California Anti-SLAPP Statute

The panel affirmed the district court’s denial of 

ZoomInfo Technologies, Inc.’s motion to strike Kim Carter 

Martinez’s complaint under California’s anti-SLAPP law on 

the alternative ground that Martinez’s complaint fell within 

the public-interest exemption to the anti-SLAPP law.

Martinez asserted that ZoomInfo did not obtain her 

permission or compensate her when it used her name and 

likeness in its online directory to promote its product, in 

violation of California’s Right of Publicity statute and her 

common-law privacy and intellectual property rights. 

ZoomInfo moved to strike the complaint under California 

anti-SLAPP statute.

The panel held that it had appellate jurisdiction under the 

collateral order doctrine to review the denial of ZoomInfo’s 

anti-SLAPP motion. The panel also held that, at this stage, 

Martinez has plausibly pleaded that she suffered sufficient 

injury to establish constitutional standing to sue.

Before engaging in a merits analysis, a court must 

consider any claims by the plaintiff that a statutory 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
MARTINEZ V. ZOOMINFO TECH. INC. 3

exemption to California’s anti-SLAPP law applies. 

Although the district court did not address the exemptions, 

the panel held that her case fell within the public-interest 

exemption to the anti-SLAPP law. Martinez met the three 

conditions for the public interest exemption: Martinez 

requests all relief on behalf of the alleged class of which she 

is a member and does not seek any additional relief for 

herself; Martinez’s lawsuit seeks to enforce the public 

interest of the right to control one’s name and likeness; and 

private enforcement is necessary and disproportionately 

burdensome.

Concurring, Judge McKeown wrote separately to 

question the propriety of the court reviewing on 

interlocutory appeal denials of anti-SLAPP motions to 

strike.

Concurring, Judge Desai, joined by Judge McKeown, 

wrote separately to urge the court to reconsider its precedent 

that the district court’s denial of anti-SLAPP motions to 

strike are collateral orders subject to interlocutory appeal.
4 MARTINEZ V. ZOOMINFO TECH. INC.

COUNSEL

Jeffrey A. Lamken (argued), Lucas M. Walker, Lauren M. 

Weinstein, and Jennifer E. Fischell, MoloLamken LLP, 

Washington, D.C.; Eugene A. Sokoloff, Jordan A. Rice, and 

Kenneth E. Notter III, MoloLamken LLP, Chicago, Illinois; 

Alexandra C. Eynon, MoloLamken LLP, New York, New 

York; Shon Morgan, Daniel C. Posner, and John W. 

Baumann, Quinn Emanuel Urquhart & Sullivan LLP, Los 

Angeles, California; Cristina Henriquez, Quinn Emanuel 

Urquhart & Sullivan LLP, Redwood Shores, CA; for 

Defendant-Appellant.

Ben R. Osborn (argued), Law Office of Benjamin R. Osborn, 

Brooklyn, New York; Michael F. Ram and Marie N. Appel, 

Morgan & Morgan Complex Litigation Group, San 

Francisco, California; Sam Strauss and Raina Borrelli, Turke 

& Strauss LLP, Madison, Wisconsin; for Plaintiff-Appellee.

Mark A. Lemley, Stanford Law School, Stanford, 

California; Rebecca Tushnet, Harvard Law School, 

Cambridge, Massachusetts; for Amicus Curiae Intellectual 

Property and First Amendment Law Professors.

John Nadolenco, Jennifer M. Chang, and Daniel D. Queen, 

Mayer Brown LLP, Los Angeles, California; Nicole A. 

Saharsky, Mayer Brown LLP, Washington, D.C.; Benjamin 

D. Bright, Mayer Brown LLP, New York, New York; for 

Amici Curiae Spokeo Inc., PeopleFinders LLC, and 

BeenVerified LLC. 

Megan Iorio and Tom McBrien, Electronic Privacy 

Information Center, Washington, D.C.; Ellen Noble, Public 

Justice, Washington, D.C.; for Amici Curiae Electronic 

Privacy Information Center and Public Justice.
MARTINEZ V. ZOOMINFO TECH. INC. 5

OPINION

McKEOWN, Circuit Judge:

Countless websites offer access to personal information, 

ranging from phone numbers to residence data, employment 

information, and more. One such website is ZoomInfo, an 

online directory of professionals and their employment 

information. Clicking on a ZoomInfo link in a search 

engine—or searching the ZoomInfo website itself for a 

specific professional—produces a redacted “teaser profile,” 

offering the individual’s name, employer, and job title. On 

the same page are links inviting the viewer to sign up for a 

trial subscription or subscribe to ZoomInfo to view the full 

profile. 

Kim Martinez, a California citizen and political director 

for a local union, objects to ZoomInfo providing such a 

“teaser profile” of her information along with these 

subscription links. Her complaint asserts that, because

ZoomInfo did not obtain her permission or compensate her, 

the directory is using her name and likeness to promote its 

product in violation of California’s Right of Publicity statute 

and her common-law privacy and intellectual property 

rights. 

In the district court, ZoomInfo moved to dismiss the 

complaint and to cut off the claims at the pleading stage 

under California’s anti-SLAPP—strategic lawsuits against 

public participation—law, a statute that restricts suits aimed 

at repressing free speech. Cal. Civ. Proc. Code § 425.16. 

The district court denied the motion to dismiss and rejected 

ZoomInfo’s special motion to strike the complaint under 

California anti-SLAPP statute.
6 MARTINEZ V. ZOOMINFO TECH. INC.

At this stage, we have interlocutory jurisdiction solely 

with respect to the motion to strike. We do not address the 

district court’s ruling on the motion to dismiss. We affirm 

the district court’s denial of ZoomInfo’s motion to strike 

under California’s anti-SLAPP law.

BACKGROUND

ZoomInfo maintains a database of 125 million business 

professionals and their employment information. When 

someone searches for an individual professional, either 

through a search engine or on ZoomInfo’s website, 

ZoomInfo displays a “teaser profile,” which shows partially 

redacted information about the individual. The profile also 

includes several “buttons,” offering “Get Access to 

[Name’s] Full Info,” “Get Email Address,” “We have who 

you are looking for: View [Name’s] Full Org-Chart,” and 

“See more information about [Name].” Clicking on one of 

these buttons leads the user to a page detailing options to 

subscribe to ZoomInfo before viewing the individual’s full 

profile. As pleaded, a paid ZoomInfo subscription costs a 

minimum of $10,000 annually. Alternatively, a user can 

register for the “Community Edition,” a free subscription in 

which the subscriber provides ZoomInfo with the names and 

contact information of everyone with whom the subscriber 

has emailed. 

Kim Martinez is the Political and Legislative Director of 

the American Federation of State, County, and Municipal 

Employees (“AFSCME”), Local 51, a labor union that

represents public sector employees. ZoomInfo has a profile 

of Martinez in its database, and an internet search for 

Martinez reveals a teaser profile stating her job title, 

employment at AFSCME, the contact information for 

AFSCME’s national headquarters, and the names and job 
MARTINEZ V. ZOOMINFO TECH. INC. 7

titles of Martinez’s colleagues.

1

 The teaser profile includes 

the above-referenced subscription buttons offering full 

access to Martinez’s profile to subscribers. Martinez, who 

has never used ZoomInfo, objects to “ZoomInfo using her 

name and personal information” without her consent “to 

advertise subscriptions to zoominfo.com.” 

Martinez filed suit in September 2021, on behalf of 

herself and a proposed class of California citizens whose 

information is included in ZoomInfo’s directory and 

provided in teaser profiles. Her complaint asserts that 

ZoomInfo’s use of the class’s information to advertise 

subscriptions is a tortious misappropriation of their names 

and likenesses under California law and violates California’s 

Right of Publicity Statute, California Civil Code § 3344. 

Martinez pleads that ZoomInfo’s nonconsensual use has 

injured her and the class by unlawfully taking their 

intellectual property, invading their privacy rights, profiting 

from their names and information, and harming their peace 

of mind. Martinez seeks a declaration that ZoomInfo 

infringes on her state-law privacy and intellectual property 

rights, injunctive relief, restitution, and damages. 

ZoomInfo moved to dismiss the complaint for lack of 

Article III standing under Rule 12(b)(1) and for failure to 

state a claim under Rule 12(b)(6). ZoomInfo also moved to 

strike Martinez’s claims pursuant to California’s antiSLAPP statute, California Civil Procedure Code § 425.16. 

The district court denied ZoomInfo’s motions to dismiss, 

1 ZoomInfo makes much of the fact that, in its view, much of Martinez’s 

professional information is publicly available on other websites. 

Because our review is limited to the complaint and Martinez’s teaser 

profile, of which the district court took judicial notice, we do not address 

that argument here.
8 MARTINEZ V. ZOOMINFO TECH. INC.

finding Martinez had sufficiently pleaded her alleged 

injuries to have standing to sue and that the conduct alleged 

did not fall within the publicity statute’s exception for “use 

of a name . . . or likeness in connection with any news [or] 

public affairs,” Cal. Civ. Code § 3344(d). The district court 

also denied ZoomInfo’s special motion to strike the 

complaint, holding that California’s anti-SLAPP law did not 

require throwing out the case because the speech at issue is 

commercial in nature and therefore not protected under the 

statute and because Martinez showed a reasonable 

probability of prevailing on the merits of her claims. 

ZoomInfo filed a notice of appeal regarding the denial of its

anti-SLAPP motion. In its briefing on appeal, ZoomInfo 

now asks us to decide not only the anti-SLAPP issue, but 

also to review the district court’s ruling on whether Martinez

has standing to bring this action.

ANALYSIS

I. Jurisdiction

The parties take polar opposite positions on whether this 

court has jurisdiction over Martinez’s appeal. Neither is 

wholly correct. ZoomInfo raises two issues on interlocutory 

appeal: (1) whether the district court erred in denying 

ZoomInfo’s anti-SLAPP motion; and (2) whether the district 

court erred in concluding that Martinez has standing to sue. 

Martinez asserts that we lack jurisdiction to review either 

issue. We conclude that we have appellate jurisdiction under 

the collateral order doctrine to review the anti-SLAPP issue

and assure ourselves of our subject matter jurisdiction to 

reach that issue.
MARTINEZ V. ZOOMINFO TECH. INC. 9

A. Jurisdiction Over Interlocutory Appeal of AntiSLAPP Motion

In general, our jurisdiction is limited to appeals from a 

district court’s final order. 28 U.S.C. § 1291. Under the 

collateral order doctrine, however, we may review a district 

court’s ruling if it (1) is “conclusive,” (2) “resolve[s]

important questions separate from the merits,” and (3) is 

“effectively unreviewable on appeal from the final judgment 

in the underlying action.” Mohawk Indus., Inc. v. Carpenter, 

558 U.S. 100, 106 (2009) (quoting Swint v. Chambers Cnty. 

Comm’n, 514 U.S. 35, 42 (1995)). Consistent with our 

precedent in Batzel v. Smith, 333 F.3d 1018, 1025–26 (9th 

Cir. 2003), we recently held that an order denying a motion 

to strike under an anti-SLAPP law is a collateral order 

subject to immediate interlocutory appeal. Langer v. Kiser, 

57 F.4th 1085, 1104 (9th Cir. 2023). Accordingly, the 

district court’s denial of ZoomInfo’s anti-SLAPP motion is 

properly before us on appeal. 

Martinez challenges our appellate jurisdiction on the

ground that statutory exemptions remove this case from the 

scope of California’s anti-SLAPP law. This is incorrect. As 

California law provides—and we have held—if a district 

court denies an anti-SLAPP motion based on one of the 

statutory exemptions, that denial may not be appealed. Cal. 

Civ. Proc. Code § 425.17(b)–(e); see also Breazeale v. 

Victim Servs., Inc., 878 F.3d 759, 765 (9th Cir. 2017). Here, 

the district court did not deny ZoomInfo’s anti-SLAPP 

motion on the exemptions, but rather based on ZoomInfo’s 

failure to establish the elements for SLAPP relief. See Cal. 

Civ. Proc. Code § 425.16(b). Therefore, the exemption from 

appeal is not applicable and we have jurisdiction over the 

interlocutory appeal from the denial of the anti-SLAPP 

motion. See Langer, 57 F.4th at 1104.
10 MARTINEZ V. ZOOMINFO TECH. INC.

B. Jurisdiction Over Interlocutory Appeal of 

Standing

Although this is an interlocutory appeal, we first ensure

that we have subject matter jurisdiction to hear this appeal, 

including the threshold question of constitutional standing.

2

 

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–

95 (1998) (“Every federal appellate court has a special 

obligation to satisfy itself not only of its own jurisdiction, 

but also that of the lower courts in a cause under review.”) 

(internal citations and quotation marks omitted). At this 

stage, Martinez has plausibly pleaded that she suffered 

sufficient injury to establish standing to sue. ZoomInfo’s 

arguments to the contrary primarily attack fact and merits 

2 We recognize that, in some circumstances, a few circuits have 

addressed subject matter jurisdiction in interlocutory appeals using 

pendent jurisdiction. See, e.g., Timpanogos Tribe v. Conway, 286 F.3d 

1195, 1200–01 (10th Cir. 2002) (holding that resolving subject matter 

jurisdiction over the underlying claim was necessary to ensure 

meaningful review of the collateral order denying Eleventh Amendment 

immunity on that claim); Merritt v. Shuttle, 187 F.3d 263, 267–69 (2d 

Cir. 1999) (same conclusion regarding subject matter jurisdiction and 

order on qualified immunity). We also recognize that a few circuits have 

declined to address standing under pendent jurisdiction. See, e.g., Indus. 

Servs. Grp., Inc. v. Dobson, 68 F.4th 155, 166–68 (4th Cir. 2023) 

(holding that the standing analysis was not inextricably intertwined with

or necessary to ensure meaningful review of the Eleventh Amendment 

immunity claim); Freyre v. Chronister, 910 F.3d 1371, 1379 (11th Cir. 

2018) (same). And other cases on interlocutory review reference 

standing without discussion of pendent jurisdiction. See Vt. Agency of 

Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771–78 (2000) 

(addressing the purely legal question of whether a private party has 

standing when bringing a qui tam action without discussing pendent 

jurisdiction); Hilton v. Hallmark Cards, 599 F.3d 894, 904 n.6 (9th Cir. 

2010) (noting that “the jurisdictional elements of standing . . . are 

unarguably present here” without analyzing standing through pendent 

jurisdiction). None of these cases involved SLAPP statutes.
MARTINEZ V. ZOOMINFO TECH. INC. 11

issues that we do not reach. Nonetheless, standing remains 

an issue throughout the litigation and we take no position on 

whether, upon discovery and further examination, Martinez 

will meet the standing requirements. See TransUnion LLC 

v. Ramirez, 141 S. Ct. 2190, 2208 (2021) (“A plaintiff must 

demonstrate standing ‘with the manner and degree of 

evidence required at the successive stages of the litigation.’” 

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 

(1992))).

II. The Anti-SLAPP Motion to Strike

We now turn to the question of whether the district court 

should have struck Martinez’s action as a SLAPP, an issue 

that we review de novo. Jordan-Benel v. Univ. City Studios, 

Inc., 859 F.3d 1184, 1188 (9th Cir. 2017). California’s antiSLAPP law was enacted to “protect against ‘lawsuits brought 

primarily to chill’ the exercise of speech and petition rights” 

and to “encourage continued participation in matters of public 

significance.” Film-On.com Inc. v. DoubleVerify Inc., 439 

P.3d 1156, 1160 (Cal. 2019) (quoting Cal. Civ. Proc. Code 

§ 425.16(a)). The scope of the law is limited, however, by 

two exemptions: it does not apply to “any action brought 

solely in the public interest or on behalf of the general public,”

Cal. Civ. Proc. Code § 425.17(b), or to causes of action 

arising from commercial speech, id. § 425.17(c); Simpson 

Strong-Tie Co., Inc. v. Gore, 230 P.3d 1117, 1129 (Cal. 2010). 

California law teaches that “[b]efore engaging in [the 

merits] analysis, a court must consider any claims by the 

plaintiff that a statutory exemption contained in 

section 425.17 applies.” Takhar v. People ex rel. Feather 

River Air Quality Mgmt. Dist., 237 Cal. Rptr. 3d 759, 766 

(Ct. App. 2018) (quoting San Diegans for Open Gov’t v. Har 

Constr., Inc., 192 Cal. Rptr. 3d 559, 567 (Ct. App. 2015)). 
12 MARTINEZ V. ZOOMINFO TECH. INC.

Although the district court put the cart before the horse and 

did not address the exemptions, on de novo review we do so 

here. This approach is consistent with the analytical 

framework adopted by the California courts of appeal. See, 

e.g., Xu v. Huang, 288 Cal. Rptr. 3d 558, 561–62 (Ct. App. 

2021) (addressing commercial speech exemption after it was 

pressed, but not passed upon, below); Takhar, 237 Cal. Rptr. 

3d at 766–68 (same for public interest exemption). It is also 

consistent with the express language of the statute: if 

Martinez’s action satisfies either exemption, her action 

cannot be struck as a SLAPP. See Cal. Civ. Proc. Code 

§ 425.17(b)–(c). We hold that, on the face of Martinez’s 

complaint, her case is brought solely in the public interest 

and therefore is exempt from California’s anti-SLAPP law.

California’s anti-SLAPP law exempts a case “brought 

solely in the public interest or on behalf of the general 

public” if three conditions are met:

(1) The plaintiff does not seek any relief 

greater than or different from the relief 

sought for the general public or a class 

of which the plaintiff is a member.

(2) The action, if successful, would enforce 

an important right affecting the public 

interest, and would confer a significant 

benefit, whether pecuniary or 

nonpecuniary, on the general public or a 

large class of persons.

(3) Private enforcement is necessary and 

places a disproportionate financial 

burden on the plaintiff in relation to the 

plaintiff’s stake in the matter.
MARTINEZ V. ZOOMINFO TECH. INC. 13

Id. § 425.17(b). The California Supreme Court counsels that 

the public interest exception is to be narrowly construed and 

applies “only when the entire action is brought in the public 

interest.” Simpson, 230 P.3d at 1123 (quoting Club 

Members for an Honest Election v. Sierra Club, 196 P.3d 

1094, 1096 (Cal. 2008)). The applicability of the 

exemptions is evaluated based on the allegations in the 

complaint. See Tourgeman v. Nelson & Kennard, 166 Cal. 

Rptr. 3d 729, 741 (Ct. App. 2014).

ZoomInfo’s primary argument regarding the public 

interest exemption is that Martinez fails to satisfy the first 

criterion because she seeks “individualized” or “personal” 

relief. We disagree. While no California Supreme Court 

case answers the precise question here, that court has 

signaled approval of the result we reach. See Muniz v. 

United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013) 

(“Decisions of the California Supreme Court, including 

reasoned dicta, are binding on us as to California law.”). 

ZoomInfo argues that, by seeking relief that may require an 

individualized determination—namely damages, Martinez is 

seeking “personal relief,” as forbidden by Club Members for 

an Honest Election v. Sierra Club, 196 P.3d 1094, 1098 (Cal. 

2008). But in that case, the plaintiff sought certain relief that 

would advance solely its members’ own interests. Id. at 

1099. For example, the plaintiff asked the court to order the 

Sierra Club to give board seats to plaintiff’s members and to 

pay to publish an article advancing plaintiff’s view on the 

direction of the Club. Id. Therefore, the plaintiff 

impermissibly sought “relief greater than or different from 

the relief sought for the general public.” Id. (quoting 

§ 425.17(b)). The California Supreme Court clarified that 

the bar on “any personal relief” prohibits seeking “a more 

narrow advantage for a particular plaintiff.” Id. at 1098
14 MARTINEZ V. ZOOMINFO TECH. INC.

(internal quotation marks omitted). In context, “a more 

narrow advantage” is most reasonably construed as referring

to relief that applies only to the plaintiff, and not the class.

Here, a California Court of Appeal decision is the most 

relevant authority and our best indication of how the 

California Supreme Court would rule. See Muniz, 738 F.3d 

at 219 (noting that California appellate decisions are 

“persuasive,” not binding, but “[w]e should nevertheless 

follow a published intermediate state court decision 

regarding California law unless we are convinced that the 

California Supreme Court would reject it”). The bottom line 

is that seeking individualized relief is permissible and not a 

death knell to the public interest exemption. In People ex 

rel. Strathmann v. Acacia Research Corp., 148 Cal. Rptr. 3d 

361 (Ct. App. 2012), the court observed that “[a] claim 

brought on behalf of the general public might include some 

kind of individual relief, in which case, it would have to be 

determined under section 425.17(b)(1) whether that relief is 

greater than or different from the relief sought for the general 

public.” Id. at 371 (emphasis added). Thus, a request for 

individual relief is the starting, not the ending, point for the 

§ 425.17(b)(1) analysis.

No California intermediate appellate authority 

undermines this conclusion. ZoomInfo rests its argument on 

Ingels v. Westwood One Broadcasting Services, Inc., where 

the court held that an action seeking “recovery of damages 

personal to [the plaintiff]” did not fall within the public 

interest exemption. 28 Cal. Rptr. 3d 933, 937, 943 (Ct. App. 

2005). But the important distinction is that the plaintiff in 

Ingels sought damages solely for himself and not for 

members of the alleged class. Id. Therefore, the court’s use 

of “personal” damages is most reasonably understood as 

relief sought solely on behalf of the individual plaintiff. 
MARTINEZ V. ZOOMINFO TECH. INC. 15

Similarly, the California appellate courts have found the 

public interest exemption does not apply when the plaintiff 

seeks damages that apply to a fraction of the class, not its 

entirety. Thayer v. Kabateck Brown Kellner LLP, 143 Cal. 

Rptr. 3d 17, 29 (Ct. App. 2012), as modified (June 22, 2012)

(noting that Thayer sought damages that were statutorily 

available only to senior citizens and concluding that Thayer 

sought “relief much greater than the relief sought for the 

purported class”).

3

 Here, by contrast, Martinez has 

requested all relief on behalf of the alleged class; she has not 

requested any additional relief that would not apply to some 

or all of the class. Given this critical difference between the 

above cases and the one before us, we cannot reasonably 

construe these authorities to prohibit all requested class-wide 

relief that might require individualized calculations to award 

damages. Rather, as instructed by Strathmann, the 

possibility of “some kind of individual relief” prompts us to 

proceed to the § 425.17(b)(1) analysis.

Martinez’s complaint does not seek relief that is greater 

than or different from the relief sought on behalf of the 

alleged class. Martinez seeks relief solely on behalf of a 

class of which she is a member. She does not seek any 

additional relief solely for herself, the fatal flaw for the 

plaintiffs in Club Members for an Honest Election and 

Ingels. Nor does she seek, at least from the face of the 

3 The court in Thayer also noted that the plaintiff had requested general 

damages, which “includes pain and suffering, emotional distress, and 

other ‘subjective’ items.” 143 Cal. Rptr. 3d at 29 (quoting Beeman v. 

Burling, 265 Cal. Rptr. 719, 727 (Ct. App. 1990)). But because the court 

found fault with the plaintiff’s complaint for seeking “much greater”—

rather than different—relief, Thayer should not be read to mean that 

requesting “subjective” damages such as emotional distress on behalf of 

the entire class violates § 425.17(b)’s requirements. See id.
16 MARTINEZ V. ZOOMINFO TECH. INC.

complaint, relief that would apply only to a subset of the 

class, as at issue in Thayer. Nothing in Martinez’s complaint 

suggests that, if her action is successful, her recovery will be 

greater than the recovery of other members of the class.

On the second criterion, Martinez’s action, if successful, 

would “enforce an important right affecting the public 

interest” and would “confer a significant benefit” on the 

general public. See Cal. Civ. Proc. Code § 425.17(b)(2). 

Courts make this determination by “examining [the] 

complaint to determine whether [the] lawsuit is of the kind 

that seeks to vindicate public policy goals.” Tourgeman, 166 

Cal. Rptr. 3d at 743. Martinez’s lawsuit clearly intersects

with California’s public policy goals. 

The birthplace of American cinema and home of 

Hollywood, California has long declared a policy of

protecting artists’ and other individuals’ right to control the 

use of their persona. California’s original constitution 

substantively began by identifying “protecting property” and 

“pursuing and obtaining . . . happiness” as “inalienable 

rights.” Cal. Const. Art. I, § 1 (1849). Nearly a century ago, 

California’s courts enshrined the right to privacy in the state 

constitution by interpreting this right to happiness as 

“includ[ing] the right to live free from the unwarranted 

attack of others upon one’s liberty, property, and 

reputation.” Melvin v. Reid, 297 P. 91, 93 (Cal. Ct. App. 

1931). In doing so, the court in Melvin concluded that the 

right to privacy supported a tort action for using the 

plaintiff’s name and biography without her permission. Id.

at 92–93. 

Since then, California has continued to firmly declare its 

public policy commitment to protecting its citizens’ property 

and privacy rights. Subsequent decisions confirmed that the 
MARTINEZ V. ZOOMINFO TECH. INC. 17

unauthorized use of a person’s name for commercial 

exploitation is actionable. Stilson v. Reader’s Dig. Ass’n, 

Inc., 104 Cal. Rptr. 581, 582 (Ct. App. 1972); Fairfield v. 

Am. Photocopy Equip. Co., 291 P.2d 194, 197 (Cal. Ct. App. 

1955) (condemning such exploitation as “one of the most 

flagrant and common means of invasion of privacy”). These 

decisions underscore the breadth of the privacy protection, 

permitting actions not just by celebrities and well-known 

corporations, but also by private citizens with no public 

reputation. See Stilson, 104 Cal. Rptr. at 582. The California 

public has also endorsed the state’s commitment to privacy. 

In 1972, California voters explicitly added privacy to the 

state’s constitutional rights. Hill v. Nat’l Collegiate Athletic 

Ass’n, 7 Cal. 4th 1, 15 (1994); see also Cal. Const. Art. I, 

§ 1.

This longstanding protection demonstrates that 

California considers the right to control one’s name and 

likeness to be an important right affecting the public interest. 

Although we take no position on the merits, Martinez’s 

lawsuit, on the face of the complaint, seeks to enforce this 

right. California’s common-law and statutory recognition of 

this right suggests that if Martinez prevails, she will confer a 

significant benefit on thousands of Californians.

Finally, Martinez also satisfies the third criterion of the 

public-interest exemption because private enforcement is 

both necessary and disproportionately burdensome. See Cal. 

Civ. Proc. Code § 425.17(b)(3). California Courts of Appeal 

have held that if no public entity has sought to enforce the 

right plaintiff seeks to vindicate in the lawsuit, “[t]his fact 

alone is a sufficient basis to conclude the action is 

‘necessary,’ within the meaning of the public interest 

exception.” Inland Oversight Comm. v. County of San 

Bernardino, 190 Cal. Rptr. 3d 884, 887–88 (Ct. App. 2015); 
18 MARTINEZ V. ZOOMINFO TECH. INC.

see also Tourgeman, 166 Cal. Rptr. 3d at 744 (citing cases). 

There is no indication in the record or briefing here that a 

public entity has brought a right-to-publicity, 

misappropriation, or similar action against ZoomInfo. On the 

relative financial cost, a case is disproportionately 

burdensome if “the cost of [Martinez’s] legal victory 

transcends [her] personal interest.” Tourgeman, 166 Cal. 

Rptr. 3d at 744 (quoting Blanchard v. DIRECTV, Inc., 20 

Cal. Rptr. 3d 385, 393 (Ct. App. 2004)). As a non-celebrity 

who may struggle to demonstrate the economic value of her 

name or likeness, Martinez may well recover only the 

minimum statutory damages. At $750 per person, these 

damages would not even cover the cost of litigating this 

action. See Cal. Civ. Code § 3344(a). But, if her class action 

is successful, Martinez’s personal recovery would be 

dwarfed by the total recovery for the putative class, which 

she alleges may number in the millions. 

We therefore conclude that Martinez’s complaint is 

exempted from California’s anti-SLAPP law as a suit 

“brought solely in the public interest” under § 425.17(b). 

Because the public interest exemption applies, it is 

unnecessary for us to determine whether the commercial 

speech exemption also applies or to reach the merits grounds 

on which the district court decided the motion. 

We affirm the district court’s denial of ZoomInfo’s 

motion to strike Martinez’s complaint under California’s 

anti-SLAPP law on the alternative ground that Martinez’s 

complaint falls within the public-interest exemption to the 

anti-SLAPP law. Costs shall be awarded to Martinez.

AFFIRMED.
MARTINEZ V. ZOOMINFO TECH. INC. 19

McKEOWN, Circuit Judge, concurring:

I write separately to question the propriety of our court 

reviewing on interlocutory appeal denials of anti-SLAPP 

motions to strike. My particular objection is that a motion 

based on California’s anti-SLAPP statute is wholly 

grounded in that state’s procedural law, yet we have infused 

it with substantive significance. Rusheen v. Cohen, 128 P.3d 

713, 717 (Cal. 2006) (“The Legislature enacted Code of 

Civil Procedure section 425.16—known as the anti-SLAPP 

statute—to provide a procedural remedy to dispose of 

lawsuits that are brought to chill the valid exercise of 

constitutional rights.”); Cal. S. Judiciary Comm., Analysis 

of S.B. No. 515 (2003–2004 Reg. Sess.), as amended May 

1, 2003, p. 12 (“At its core, the anti-SLAPP law is a 

procedural device crafted by the Legislature to weed out 

certain frivolous lawsuits arising out of the defendant’s valid 

(and thus protected) first amendment conduct.”). Over time, 

we have turned the statute into a ground for interlocutory 

appeal in the federal courts. 

What is more, at odds with the venerable doctrine of Erie 

Railroad Co. v. Tompkins, 304 U.S. 64 (1938), we have even 

decided that we will adopt the California state procedural 

rules as to when the denial of a SLAPP motion is appealable. 

Breazeale v. Victim Servs., Inc., 878 F.3d 759, 766–67 (9th 

Cir. 2017) (holding that the statutory prohibition on 

interlocutory appeals of denials of anti-SLAPP motions to 

strike on public-interest-exemption grounds, California 

Civil Procedure Code § 425.17(e), applies in federal court). 

Ironically, we let anti-SLAPP denials jump the line and 

become automatically classified as appealable under the 

collateral order doctrine, but we decline interlocutory review 

of the more draconian result when a trial court grants an antiSLAPP motion and ousts a party from court. See, e.g., Hyan 
20 MARTINEZ V. ZOOMINFO TECH. INC.

v. Hummer, 825 F.3d 1043, 1047 (9th Cir. 2016) (holding 

that the grant of an anti-SLAPP motion to strike is fully 

reviewable on appeal from final judgment, and thus not 

appealable under the collateral order doctrine). We cannot 

justify this discrepancy on the grounds that anti-SLAPP is a 

form of immunity from suit. Cf. Batzel v. Smith, 333 F.3d 

1018, 1025–26 (9th Cir. 2003), superseded by statute, Cal. 

Civ. Proc. Code § 425.17(e). That line of reasoning has been 

soundly rejected by the California Supreme Court, which has 

repeatedly insisted that “the anti-SLAPP statute neither 

constitutes—nor enables courts to effect—any type of 

‘immunity.’” Jarrow Formulas, Inc. v. LaMarche, 74 P.3d 

737, 743–44 (Cal. 2003) (quoting Navellier v. Sletten, 52 

P.3d 703, 712 (Cal. 2002)).

Our jurisprudence on anti-SLAPP statutes places us in 

the minority among our sister circuits. The Second, Seventh, 

Tenth, Eleventh, and D.C. Circuits do not recognize the 

applicability of SLAPP statutes’ provisions for motions to 

strike or dismiss. The Second Circuit put it succinctly: 

“[W]e lack appellate jurisdiction to consider the district 

court’s order passing on the merits of the defendants’ antiSLAPP motions to strike.” Ernst v. Carrigan, 814 F.3d 116, 

122 (2d Cir. 2016). See also Intercon Sols., Inc. v. Basel 

Action Network,

1 791 F.3d 729, 732 (7th Cir. 2015) (holding 

that Washington’s anti-SLAPP law, as a whole, is 

inapplicable in federal court); Los Lobos Renewable Power, 

LLC v. Americulture, Inc., 885 F.3d 659, 668–73 (10th Cir. 

1 Before the Seventh Circuit’s decision, the Washington Supreme Court 

ruled that the state’s anti-SLAPP statute violated the Washington 

Constitution and that its special motion to strike provision was not 

severable. Davis v. Cox, 351 P.3d 862, 864, 871–74 (Wash. 2015) (en 

banc), abrogated on other grounds, Maytown Sand & Gravel, LLC v. 

Thurston Cnty., 423 P.3d 223, 248 n.15 (Wash. 2018) (en banc).
MARTINEZ V. ZOOMINFO TECH. INC. 21

2018) (holding that New Mexico’s anti-SLAPP statute is 

inapplicable in a federal diversity action); Carbone v. Cable 

News Network, Inc., 910 F.3d 1345, 1349–51 (11th Cir. 

2018) (holding that the motion to strike provision of 

Georgia’s anti-SLAPP statute does not apply in federal 

court); Abbas v. Foreign Pol’y Grp., 783 F.3d 1328, 1333 

(D.C. Cir. 2015) (declining to apply the District of 

Columbia’s anti-SLAPP law’s special motion to dismiss 

provision). Only two circuits side with the Ninth Circuit 

approach—the First and Fifth Circuits. See Franchini v. 

Inv.’s Bus. Daily, Inc., 981 F.3d 1, 6–8 (1st Cir. 2020) 

(holding the appellate court had jurisdiction to hear an 

interlocutory appeal of a denial of a motion to dismiss under 

Maine’s anti-SLAPP law); Henry v. Lake Charles Am. 

Press, L.L.C., 566 F.3d 164, 180–81 (5th Cir. 2009) (holding 

that interlocutory appeal of denial of anti-SLAPP dismissal 

under Louisiana law permitted); but see Cuba v. Pylant, 814 

F.3d 701, 718–21 (5th Cir. 2016) (Graves, J., dissenting) 

(disagreeing with circuit’s applying Texas’s anti-SLAPP 

law on the basis that, under Erie, such a procedural law is 

inapplicable in federal court).

Several of my colleagues have already registered their 

doubts whether it is appropriate to review anti-SLAPP 

motions on interlocutory appeal. See Planned Parenthood 

Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 

835–38 (9th Cir.) (Gould, J., joined by Murguia, J., 

concurring), amended, 897 F.3d 1224 (9th Cir. 2018); 

Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 

1182–86 (9th Cir. 2016) (Kozinski and Gould, JJ., 

concurring); Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 

1188–92 (9th Cir. 2013) (Watford, J., joined by Kozinski, 

Paez, & Bea, JJ., dissenting from denial of rehearing en 
22 MARTINEZ V. ZOOMINFO TECH. INC.

banc); Makaeff v. Trump Univ., LLC, 715 F.3d 254, 272–76 

(9th Cir. 2013) (Kozinski, C.J. & Paez, J., concurring). 

We have turned a blind eye to the incongruity of this 

practice—with Erie and with common sense—for too long.

DESAI, Circuit Judge, with whom McKEOWN, Circuit 

Judge, joins, concurring:

As discussed in the panel’s opinion, ZoomInfo’s 

interlocutory appeal of the district court’s denial of its antiSLAPP motion to strike is properly before us because 

binding circuit precedent establishes that denials of such 

motions are collateral orders subject to interlocutory appeal. 

While I join my colleagues in affirming the trial court’s 

denial of ZoomInfo’s anti-SLAPP motion to strike, I write 

separately to urge our court to reconsider our precedent 

allowing interlocutory appeals of such collateral orders in 

the first place.

In Batzel v. Smith, this court held that denials of antiSLAPP motions to strike are immediately appealable 

collateral orders. 333 F.3d 1018, 1024–26 (9th Cir. 2003). 

Since then, some of my colleagues have challenged the 

appropriateness of reviewing denials of anti-SLAPP motions 

to strike on interlocutory appeal, urging the court to 

reconsider this precedent. See Planned Parenthood Fed’n of 

Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 835–38 

(9th Cir. 2018) (Gould, J., joined by Murguia, J., 

concurring), amended, 897 F.3d 1224 (9th Cir. 2018). And 

several of my colleagues have separately questioned the 

propriety of reviewing denials of anti-SLAPP motions to 

strike on interlocutory appeal even when they more broadly 

urge no federal court review of any action arising under state 
MARTINEZ V. ZOOMINFO TECH. INC. 23

anti-SLAPP laws. Travelers Cas. Ins. Co. of Am. v. Hirsh, 

831 F.3d 1179, 1182–86 (9th Cir. 2016) (Kozinski and 

Gould, JJ., concurring); Makaeff v. Trump Univ., LLC, 736 

F.3d 1180, 1188–92 (9th Cir. 2013) (Watford, J., joined by 

Kozinski, Paez, & Bea, JJ., dissenting from denial of 

rehearing en banc). Moreover, two of our sister circuits have 

reasoned that anti-SLAPP motions are not collateral orders 

subject to interlocutory appeal. Ernst v. Carrigan, 814 F.3d 

116, 122 (2d Cir. 2016); cf. Intercon Sols., Inc. v. Basel 

Action Network, 791 F.3d 729, 731 (7th Cir. 2015) (stating 

in dicta that anti-SLAPP motions to strike are not collateral 

orders). 

Because denials of anti-SLAPP motions do not qualify 

as collateral orders, this court does not have jurisdiction to 

entertain them on an interlocutory basis. For an otherwise 

non-appealable, interlocutory decision to be subject to 

immediate review by a court of appeals, it must 

(1) “conclusively determine the disputed question,” 

(2) “resolve an important issue completely separate from the 

merits of the action,” and (3) “be effectively unreviewable 

on appeal from a final judgment.” Will v. Hallock, 546 U.S. 

345, 349 (2006). The denial of an anti-SLAPP motion to 

strike does not satisfy the final two elements of the Will 

collateral order analysis.

First, the denial of an anti-SLAPP motion to strike, 

which necessarily considers the plaintiff’s likelihood of 

success, see Cal. Civ. Proc. Code § 425.16(b), does not 

resolve an important issue completely separate from the 

merits. Nor is the denial of an anti-SLAPP motion to strike 

“effectively unreviewable on appeal from a final judgment.” 

Will, 546 U.S. at 349. Courts typically find this factor 

satisfied when a decision denies a defendant immunity from 

suit, such as denials of absolute or qualified immunity. See 
24 MARTINEZ V. ZOOMINFO TECH. INC.

Mitchell v. Forsyth, 472 U.S. 511, 526–30 (1985). But “the 

anti-SLAPP statute neither constitutes—nor enables courts 

to effect—any type of ‘immunity.’” Jarrow Formulas, Inc. 

v. LaMarche, 74 P.3d 737, 743–44 (Cal. 2003) (quoting 

Navellier v. Sletten, 52 P.3d 703, 712 (Cal. 2002)). And the 

merits of the plaintiff’s claims and the defendant’s defenses 

can be reviewed upon a final judgment. That the anti-SLAPP 

statute itself may provide for interlocutory appeal of denials 

of anti-SLAPP motions to strike in state court does not alter 

this analysis in federal court. 

In sum, because anti-SLAPP motions to strike require 

the court to assess the merits of a plaintiff’s claims and are 

not effectively unreviewable on appeal from a final 

judgment, I join many of my colleagues and two of our sister 

circuits in concluding that the court lacks jurisdiction to 

consider denials of such motions on interlocutory appeal 

absent certification from the district court under 28 U.S.C. 

§ 1292(b).