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Mabray beats back defamation lawsuit by Philip James, strengthens fair commentary protections

A federal court has handed Emetry CEO Paul Mabray almost all of what he asked for in his response to a defamation lawsuit filed against him in February by Penrose Hill CEO Philip James. The judge’s decision also generally confirmed protections for public commentary on public issues, including those in the wine industry.

WII reached out to both James and Mabray. James did not reply. However Mabray’s attorney, Rachel Matteo-Boehm, a partner with San Francisco law firm Bryan Cave Leighton said:

“This is a victory for Paul, and not just for him, but for all people who engage in critical commentary over the Internet.  This is the latest in a string of decisions to find that linking back to previously-published content does not republish the content for statute of limitations purposes.

“In addition, this decision confirms the broad protection, under the First Amendment, for expressions of opinion. The court agreed that the Tweet at issue in this case was non actionable, protected opinion, as we had argued it was.   On the merits of the case, the court ruled wholly for Paul, finding that Plaintiffs’ complaint against him failed to state a legally-cognizable claim for relief against Paul.”

The Tweet and the blog post

First described in Wine Industry Insight’s June 9, 2020 article: James filed a defamation lawsuit against Mabray in February, seeking damages and an injunction in United States District Court for the Northern District of California. The complaint, by James, alleged that a February, 28, 2020 Tweet by Mabray (referencing Mabray’s 2017  article/blog post in Medium: “Fakers Not Makers and The Return of Philip James”) had damaged the reputation of James and his Penrose Hill wine operation.


In that 2017 Medium article — Mabray took James to task over what he considered Penrose Hill’s lack of transparency (among other things) and also raised a 2007 issue concerning James’s company Snooth and its dealings with Cellar Tracker.


Mabray’s court filing countered that his 2020 Twitter post — responding to a third party Tweet — was not defamatory, but a valid expression of opinion. Further, Mabray argued that a link to the 2017 article was not a “republication” and as a result was barred by California’s one-year statute of limitations on defamation.

SLAPP shot

Mabray’s filing further argued that James’s lawsuit was an attempt to silence him in violation of California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law. As a result, Mabray asked that James’s lawsuit be dismissed in SLAPP and that his (Mabray’s) legal fees be reimbursed by James.


U.S. District Judge Donna Ryu denied Mabray’s SLAPP complaint, ruling that a discussion of possible wine consumer harm over the lack of transparency in PL/CL (private label/control label) wines was not a valid topic of public concern to merit SLAPP consideration.

Matteo-Boehm disagreed:

“We continue to believe both the tweet and commentary, which concern important issues of transparency in the wine industry, bear on matters of public interest that fall squarely within the scope of California’s anti-SLAPP statute, and that Paul’s anti-SLAPP motion should have been granted along with the motion for judgment on the pleadings. “

The full text from Ms. Matteo-Boehm is at this link.

Significantly, Ryu’s SLAPP ruling prevented Mabray from reimbursement of his legal fees by James.

Ryu did rule that there was nothing defamatory in Mabray’s 2020 Tweet because any potential defamation was in the 2017 Medium article and not relevant in this case due to the statute of limitations.

Judge offers James a last chance option (but …)

Judge Ryu has offered James’s case leave to amend (with doubts):

“Here, although it seems doubtful that the issues identified in this order can be addressed through amendment, the court cannot say as a matter of law that amendment would be futile. There are no other factors weighing against amendment of the pleadings, such as undue delay or prejudice. Therefore, Plaintiffs are granted leave to amend their complaint to address the deficiencies identified above.”