Dan Bilzerian has between 5.7 and 50 million followers on Instagram, depending on who you believe. The tabloids had field days when he kicked a model in the face in Miami and when he was accused of throwing another model off the roof of his Las Vegas home during a photo shoot for Hustler magazine. He bragged that he won $10.8 million playing poker in a single night. He is also a “trust fund beneficiary,” who perhaps is “most famous for being famous.” Yet, when he was sued for defamation by the former acting president of the cannabis company he owns, an appellate judge said his statements are not matters of public interest, so he may not use an anti-SLAPP defense and the lawsuit will not be dismissed.

The judge’s opinion arises out of a defamation case, one of several lawsuits which Curtis Heffernan has filed against defendant/respondent Bilzerian. Heffernan is a former Proctor & Gamble executive and acting president of Ignite, International Ltd., Bilzerian’s Canadian-based business that sells cannabis, CBD Gummies, synthetic nicotine, apparel, vodka, tequila and a variety of performance beverages.

Heffernan was fired by Bilzerian in June 2020. He then sued for wrongful termination and termination in violation of California’s whistleblower protection laws. One former Ignite employee told Forbes that “Ignite pays for everything. Models, events, yachts...pools, trampolines …” Forbes adds that the $200,000 lease on his “ritzy Los Angeles hills home” as well as flights, yachts, and other components of his lavish lifestyle are charged to Ignite’s “corporate tab.”

In May 2020, accountants from the Canadian Stock Exchange questioned $843,014.06 that “appeared to be personal expenses.” Heffernan says he was dismissed after he refused to tell the auditors that all of Bilzerian’s Ignite expenses were business-related. He claimed Bilzerian had authorized the “wasteful expenses.” He blew the whistle on Bilzerian.

In a 2020 interview with TMZ, Bilzerian contradicted Heffernan when he told the celebrity news outlet that Heffernan was “fired for incompetence and negligence” and that his former employee’s claim was “not only frivolous, it is ridiculous.” Heffernan also learned that Bilzerian told colleagues that Heffernan used drugs. As a result of these comments, Heffernan added defamation to his wrongful termination suit.

Respondent Bilzerian then filed a motion to strike under California’s anti-SLAPP law. On October 25, in an unpublished opinion, a three-judge panel from Division Five of California’s Second District Court of Appeal Presiding Justice Lawrence D. Rubin affirmed the denial of respondent’s anti-SLAPP motion, with concurrences by Judges Carl H. Moor and Dorothy C. Kim.

Bilzerian had responded to the defamation suit by filing an anti-SLAPP motion. SLAPP stands for strategic lawsuits against public participation. These lawsuits are often filed to silence critics who must hire expensive legal representation to defend themselves. As a result, California and other states enacted anti-SLAPP laws. Under these laws, the person sued, in this case Bilzerian, can file a motion to strike because the speech in question involves a matter of public concern.

Anti-SLAPP motions will be granted if the plaintiff can show a probability of prevailing. If the plaintiff cannot meet this requirement, the suit will be dismissed. In this case, it was.

Bilzerian argued that his statements about Heffernan were made “in a place open to the public or a public forum in connection with an issue of public interest,” as is required by California law. He says his comments “constituted criticism of a professional’s on-the-job performance,” a matter of public interest because Ignite is a public company and the public has an interest in its operation. He added Ignite to his lawsuit and cited several cases that ruled “internet postings regarding corporate activity” fell within anti-SLAPP laws protected speech categories. But he had no evidence other than the fact that Ignite is a public company.

Heffernan opposed the motion, arguing the defamatory statements about him “did not implicate an issue of public interest as his job performance was not of concern to a substantial number of people.” In February 2021, a three-judge panel in Los Angeles Superior Court agreed that Bilzerian did not meet his burden of showing “a substantial number of people may have been affected by the subject matter of the statement.” Bilzerian and Ignite appealed.

Justice Rubin reviewed California anti-SLAPP law and explained that Bilzerian had the burden of establishing that his claims or allegations about Heffernan arose from “protected activity” and that his claims had at least “minimal merit.” The opinion said that Bilzerian’s statements about Heffernan’s drug use were not made in a public forum but in a company meeting. Therefore, he did not meet his burden.

Next, the panel looked at the TMZ statement. Rubin acknowledged public companies with stockholders can meet the anti-SLAPP requirement of being in the public interest, but he wrote that the California Supreme Court had ruled that the “context” of the alleged defamatory speech is also relevant. Rubin looked at the Supreme Court’s three-part test regarding the context of Bilzerian’s comments. He wrote that Bilzerian’s comments “did not concern a person in the public eye” and “did not concern conduct that could directly affect a large number of people beyond the direct participants.” Finally, they did not “concern a topic of widespread public interest” because Bilzerian failed to provide any evidence that “Heffernan’s purported incompetence related to Ignite’s financial status.”

“Without further evidence that Ignite has a large number of shareholders and that Ignite, rather than Bilzerian is a topic of interest on social media, defendants have not made a prima facie that the management of Ignite is an issue of public concern,” Rubin concluded.

Anti-SLAPP suits are designed to protect those who try to intimidate people who are exercising their First Amendment rights on matters of the public interest. Not for Bilzerian and his company, even though he may be known as the King of Instagram.