NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANHEUSER-BUSCH COMPANIES, LLC, 

 Plaintiff - Appellee,

 v.

JAMES ALAN CLARK, 

 Defendant - Appellant.

No. 13-16527

D.C. No. 2:13-cv-00415-GEBCKD

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., Senior District Judge, Presiding

Argued and Submitted October 22, 2015

San Francisco, California

Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.

In this diversity action, Anheuser-Busch Companies, LLC and AnheuserBusch, LLC (collectively, “Anheuser-Busch”) alleged that James Clark breached a 

confidentiality agreement with Anheuser-Busch and misappropriated trade secrets 

by obtaining and disclosing a document related to the company’s brewing process 

after Clark’s employment with the company had ended. Clark moved to strike the 

 

* This disposition is not appropriate for publication and is not precedent except 

as provided by 9th Cir. R. 36-3.

FILED

NOV 13 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

complaint under the California anti-SLAPP statute on the basis that he had obtained 

the document in furtherance of protected litigation activity. See Cal. Civ. Proc. 

Code § 425.16. The district court denied the motion. We vacate and remand.

1. In considering an anti-SLAPP motion to strike, the court must first 

determine whether the movant has made a prima facie showing that the suit against 

him “aris[es] from any act of that person in furtherance of the person’s right of 

petition or free speech under the United States Constitution or the California 

Constitution in connection with a public issue.” Id. § 425.16(b)(1). If so, the court 

must grant the motion unless “the plaintiff has established that there is a probability 

that the plaintiff will prevail on the claim.” Id.; see also Navellier v. Sletten, 52 

P.3d 703, 708 (Cal. 2002).

2. Preparation for litigation is a protected activity. Kolar v. Donahue, 

McIntosh & Hammerton, 52 Cal. Rptr. 3d 712, 716 (Cal. Ct. App. 2006); GrahamSult v. Clainos, 756 F.3d 724, 738 & n.7 (9th Cir. 2013). Anheuser-Busch’s papers

make clear that it sued Clark for acquiring and sharing information with putative 

class counsel to further the class action. See Dible v. Haight Ashbury Free Clinics, 

88 Cal. Rptr. 3d 464, 469 (Cal. Ct. App. 2009) (recognizing that courts can consider 

“papers filed in opposition to the [anti-SLAPP] motion to the extent that they might 

give meaning to the words in the complaint”). Anheuser-Busch has therefore sued 

Clark for acts taken “in furtherance of” a protected activity. Cal. Civ. Proc. Code 
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§ 425.16(b)(1); see Finton Constr., Inc. v. Bidna & Keys, APLC, 190 Cal. Rptr. 3d 

1, 9–10 (Cal. Ct. App. 2015); Bergstein v. Stroock & Stroock & Lavan LLP, 187 Cal. 

Rptr. 3d 36, 50–52 (Cal. Ct. App. 2015), rev. denied (Aug. 26, 2015). We conclude 

that Clark’s protected activity was not merely incidental to Anheuser-Busch’s 

lawsuit.

3. Anheuser-Busch may be able to establish that Clark breached his contract 

and misappropriated trade secrets. But whether Clark’s conduct violated California 

law goes to Anheuser-Busch’s probability of success on the merits, not whether the 

conduct was in furtherance of a protected activity. Navellier, 52 P.3d at 712–13.

4. We therefore vacate the order denying the anti-SLAPP motion and 

remand so that the district court may consider in the first instance whether AnheuserBusch “has established that there is a probability that [it] will prevail on the claim.” 

Cal. Civ. Proc. Code § 425.16(b)(1).

VACATED AND REMANDED. Each party to bear its own costs.