1 David C. Kiernan (State Bar No.

215335)
Elizabeth Burnside (State Bar No. 258184)
2 JONES DAY
555 California Street, 26th Floor
3 San Francisco, CA 94104
Telephone: (415) 626-3939
4 Facsimile: (415) 875-5700
Email: dkiernan@jonesday.com
5 eburnside@jonesday.com
6 Michael Carvin (pro hac pending)
JONES DAY
7 51 Louisiana Avenue, N.W.
Washington D.C. 200001-2133
8 Telephone: (202) 879-3939
Facsimile: (202) 626-1700
9 Email: mcarvin@jonesday.com
10 Attorneys for Defendants
Matthew Rhoades, Joseph Pounder,
11 Definers Corp., and Definers Public Affairs
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA

13 COUNTY OF SAN FRANCISCO

14 SHERVIN PISHEVAR, an individual, CASE NO. CGC-17-562305

15 Plaintiff, Assigned for all purposes to
Hon. Teri L. Jackson
16 v.
DEFENDANTS MEMORANDUM OF
17 MATTHEW RHOADES, an individual, POINTS AND AUTHORITIES IN
JOSEPH POUNDER, an individual, SUPPORT OF THEIR SPECIAL
18 DEFINERS CORP., a business entity, MOTION TO STRIKE
DEFINERS PUBLIC AFFAIRS, a business
19 entity, and DOES 1-10, Accompanying Documents
1. Notice of Motion and Motion
20 Defendants. 2. Request for Judicial Notice
3. Declarations of Joseph Pounder,
21 Timothy Miller, Scott Cotter, Matthew
Rhoades, Brian Rogers, Colin Reed
22 and Elizabeth Burnside
4. [Proposed] Order
23
Date: January 5, 2018
24 Time: 9:30
Dept.: 302
25 Reservation: 12060105-02
26 Complaint Filed: November 6, 2017
Trial Date: None Set
27

28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 TABLE OF CONTENTS

2 Page

4 I. Introduction ......................................................................................................................... 5

5 II. Statement of Facts ............................................................................................................... 7

6 III. Argument .......................................................................................................................... 10

7 A. Legal Standard for Anti-SLAPP Motion .............................................................. 11

8 B. The Anti-SLAPP Statute Applies Here Because The Alleged Statements

Are In Furtherance of Free Speech In Connection With Issues of Public
9 Interest ................................................................................................................... 11

10 C. Plaintiff Cannot Establish Any Probability That He Will Prevail ........................ 16

11 IV. Conclusion ........................................................................................................................ 19

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 TABLE OF AUTHORITIES

2 Page(s)

3 CASES
4 Aguilar v. Atl. Richfield Co.,
25 Cal. 4th 826 (Cal. 2001) .......................................................................................................17
5
Anderson v. Liberty Lobby, Inc.,
6 477 U.S. 242 (1986) ..................................................................................................................19
7 California v. Trump: The Fight Begins for Health Care, Immigration and the
Future of America
8 (Jan. 23, 2017) ...........................................................................................................................14
9 Contemporary Servs. Corp. v. Staff Pro Inc.,
152 Cal. App. 4th 1043 (2007) .................................................................................................19
10
Equilon Enterprises LLC v. Consumer Cause, Inc.,
11 29 Cal. 4th 53 (2002) ................................................................................................................11
12 Evans v. Unkow,
38 Cal. App. 4th 1490 (1995) ...................................................................................................17
13
Hailstone v. Martinez,
14 169 Cal. App. 4th 728 (2008) ...................................................................................................13
15 Hawran v. Hixson,
209 Cal. App. 4th 256 (2012) ...................................................................................................18
16
Khawar v. Globe Intl, Inc.,
17 19 Cal. 4th 254 (1998) ..............................................................................................................19
18 Lieberman v. KCOP Television, Inc.,
110 Cal. App. 4th 156 (2003) ...................................................................................................13
19
Ludwig v. Superior Court,
20 37 Cal. App. 4th 8 (1995) .........................................................................................................11
21 M.G. v. Time Warner, Inc.,
89 Cal. App. 4th 623 (2001) .....................................................................................................15
22
McGarry v. Univ. of San Diego,
23 154 Cal. App. 4th 97 (2007) .....................................................................................................12
24 Morrow v. L.A. Unified Sch. Dist.,
149 Cal. App. 4th 1424 (2007) .................................................................................................11
25
Navellier v. Sletten,
26 29 Cal. 4th 82 (2002) ................................................................................................................11
27 Nygard, Inc. v. Uusi-Kerttula,
159 Cal. App. 4th 1027 (2008) .................................................................................................16
28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
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 1 TABLE OF AUTHORITIES
(continued)
2 Page

3 Okorie v. L.A. Unified Sch. Dist.,

14 Cal. App. 5th 574, 585 (2017) ...........................................................................10, 11, 12, 16
4
Overstock.com, Inc. v. Gradient Analytics, Inc.
5 151 Cal. App. 4th 688 (2007) ...................................................................................................17

6 Oviedo v. Windsor Twelve Props., LLC,

212 Cal. App. 4th 97 (2012) .....................................................................................................12
7
Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP,
8 133 Cal. App. 4th 658 (2005) ...................................................................................................12

9 Rivero v. Am. Fedn of State, Cty., & Mun. Emps., AFL-CIO,

105 Cal. App. 4th 913 (2003) ...................................................................................................13
10
Seltzer v. Barnes,
11 182 Cal. App. 4th 953 (2010) ...................................................................................................10

12 Sipple v. Found. For Natl Progress,

71 Cal. App. 4th 226 (1999) .....................................................................................................15
13
Terry v. Davis Cmty. Church,
14 131 Cal. App. 4th 1534 (2005) .................................................................................................13

15 Thayer v. Kabateck Brown Kellner LLP,

207 Cal. App. 4th 141 (2012) ...................................................................................................12
16
Varian Med. Sys., Inc. v. Delfino,
17 35 Cal. 4th 180 (2005) ........................................................................................................11, 17

18 STATUTES
19 Cal. Civ. Proc. Code 425.16...................................................................................................11, 19
20 Cal. Civ. Proc. Code 425.16(a) ....................................................................................................10
21 Cal. Civ. Proc. Code 425.16(b)(1) .........................................................................................11, 16
22 Cal. Civ. Proc. Code 425.16(b)(1), (e)(4) ......................................................................................6
23 Cal. Civ. Proc. Code 425.16(b)(2) ...............................................................................................17
24 Cal. Civ. Proc. Code 425.16(e) ....................................................................................................12
25 Cal. Civ. Proc. Code 425.16(e)(3), (e)(4) ..............................................................................12, 16
26 Cal. Civ. Proc. Code 425.16(e)(4)..............................................................................12, 13, 15, 16
27

28
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MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 I. INTRODUCTION
2 Plaintiff Shervin Pishevar is a high-profile billionaire and venture capitalist who is a major
3 investor in brand-name companies such as Uber, Hyperloop, and Airbnb. He regularly appears in
4 the media, and has been the subject of hundreds of press articles in the past few years alone.
5 Like many other powerful and high-profile men in recent months, Mr. Pishevar has come
6 under a cloud of suspicion over allegations of sexual assault and harassment. According to press
7 reports, he was arrested in May 2017 after being accused of raping a woman while staying in the
8 3,500-a-night penthouse suite at the exclusive Ned hotel and members club in the City of
9 London.1 More recently, [f]ive other women who met Pishevar in a professional context told
10 Bloomberg [News] they were sexually assaulted or harassed by him. In each case, the women
11 accused Pishevar of exploiting a professional connection, and using the prospect of a job,
12 mentorship or investment to make an unwanted sexual advance.2 And these allegations have
13 prompted two Democratic senators to donate funds received from Mr. Pishevar to charity.3
14 In the wake of these allegations Mr. Pishevar has deployed a team of lawyers to squelch
15 any reporting of his alleged misconduct. In England, he initially obtained a wide-ranging
16 injunction from the British courts that prevent[ed] the British media [from] identifying him in
17 connection with the [alleged rape].4 He then threatened to sue the American news site Axios for
18 reporting on the story.5 Now, he has turned to the American courts to continue his gag campaign.
19 In the present case Mr. Pishevar is targeting a public-relations firm, Definers Public
20 Affairs, for orchestrating an alleged smear campaign against him. His strategy is obvious: By
21 filing this lawsuit before any story broke, he aimed to stifle negative press coverage and to
22
1
Times of London, Shervin Pishevar: Tech billionaire who gagged press over rape claim
23 is smear victim. (Nov. 15, 2017) (Ex. B).
2
24 Bloomberg News, Uber Investor Shervin Pishevar Accused of Sexual Misconduct by
Multiple Women (Nov. 30, 2017) (Ex. C); see also Dailymail.com, Uber investor is accused of
25 sexually harassing SIX women (Dec. 3, 2017) (Ex. D).
3
Fast Company, After sexual assault accusations, politicians donate Shervin Pishevars
26 contributions to charity (Dec. 4, 2017) (Ex. E).
4
The Telegraph, American tech billionaire who gagged press over hotel rape claim is
27 named (Nov. 13, 2017) (Ex. F).
5
Axios, Silicon Valley VC claims defamation over London incident (Nov. 8, 2017)
28 (Exhibit G).
5
MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 intimidate other women from coming forward. Indeed, he has used this suit to harass and
2 intimidate one woman whom the press has named as one of his alleged victims by serving her
3 with a subpoena to depose her. According to press reports, Pishevars legal actions [have
4 already] had an impact. Some of the women who shared allegations of [his] misbehavior . . . had
5 originally agreed to be identified by name, but [a]fter [the Definers] lawsuit, they withdrew
6 their names, citing the legal risks of speaking out.6
7 There is, however, a fatal problem with Mr. Pishevars Complaint in this case: The
8 Defendants have nothing to do with any of its allegations. None of the Defendants has played
9 any role whatsoever in creating, distributing, or communicating any aspect of the alleged smear
10 campaign, to reporters or anyone else. Not a single Defendant made any of the alleged
11 defamatory statements. This explains why the Complaint fails to identify anyone who allegedly
12 witnessed any Defendant make any statement to anyone about Mr. Pishevar. Rather, it is devoid
13 of the who, what, where, when, and how that one expects to see in a defamation case.
14 This appears to be a cynical ploy to use the court system to deflect attention and to deter
15 both women and the press from reporting alleged sexual misconduct committed by one of Silicon
16 Valleys most wealthy and powerful businessmen. In any event, the allegations are false,
17 unsupported, and irresponsible, and this suit should be promptly dismissed because it is a classic
18 Strategic Lawsuit Against Public Participation (SLAPP) designed to inhibit publication of issues
19 of public interest. Under Californias Anti-SLAPP statute, claims based on alleged expressive
20 activity involving issue[s] of public interest must be dismissed unless the plaintiff can produce
21 evidence establishing a probability that [he] will prevail. Cal. Civ. Proc. Code 425.16(b)(1),
22 (e)(4). Here, Defendants have been targeted because they are a public-relations firm engaged in
23 the protected First Amendment activities of gathering and communicating information.
24 Moreover, the (groundless) allegations against them (and the speech Mr. Pishevar seeks to enjoin)
25 involve core protected speech in the form of communications with the news media about issues of
26 public interest. Accordingly, because Mr. Pishevar cannot possibly produce any evidence to
27 substantiate his claimsagain, because Defendants have literally nothing to do with the
28 6
Burnside Decl. Ex. C.
6
MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 allegationshis claims must be dismissed.
2 II. STATEMENT OF FACTS
3 Plaintiff Shervin Pishevar is a Silicon Valley billionaire7 who boasts of generating
4 returns of approximately $6 billion in venture capital investments since 2011. Compl. 15. He
5 is the co-founder of Sherpa Capital, a venture-capital fund that currently has some $650 million
6 under management. Id. 13. Before Sherpa Capital, he was Managing Director at Menlo
7 Ventures, where he led the Series B of Uber and helped lead investments like Uber, Machine
8 Zone, Tumblr, and Warby Parker. Id. 14. He served as a Board Observer at Uber from 2011-
9 2015 and also has served on the board or worked closely with a number of [other] companies,
10 including Machine Zone and Warby Parker. Id. He is on the Fulbright Scholarship Board,
11 serves as one of 10 members of the United Nations Foundations Global Entrepreneurs
12 Council, Id. 16, and was a member of the Technology, Media and Telecommunications policy
13 working group that helped create the Obama Technology and Innovation Plan. Id. 17. Mr.
14 Pishevar has been named for four consecutive years to Forbes Midas List of the top 100 venture
15 capital investors (2014-2017). Id. 15. He is a frequent subject of public attention, as over
16 1,400 news articles have referred to him by name since 1997.8 He has further made multiple
17 appearances on television, and he has over 91,000 followers on Twitter.9
18 According to recent news reports, in May of this year, Mr. Pishevar was arrested by police
19 in London after a woman accused him of raping her in his penthouse hotel suite.10 Given Mr.
20 Pishevars extraordinary prominence and the recent string of similar allegations against high-
21 profile men, this allegation wasand isa matter of intense public interest. Mr. Pishevar
22 reportedly spent upwards of 100,000 to obtain a British court injunction that prevented the
23
7
24 See, e.g., Burnside Decl. Ex. E; New York Post, Billionaire ally of ex-Uber CEO busted
on rape charge (Nov. 9, 2017) (Ex. H).
8
25 Burnside Decl. 5.
9
Burnside Decl. 4-6 & Ex. A.
26 10
See Business Insider, A high-profile Uber investor who was arrested for alleged sexual
assault in London insists hes being smeared (Nov. 9, 2017) (Ex. I) (Shervin Pishevar has
27 admitted that he was arrested after a woman alleged that he sexually assaulted her last spring but
denies the allegation.); Fast Company, Smear Campaign Or Not, Tech Investor Shervin
28 Pishevar Really Was Arrested Earlier This Year (Nov. 8, 2017) (Ex. J).
7
MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 British media from reporting the incident.11 But, at some point, members of the American media
2 learned of the allegation and began investigating it. Reporters allegedly told unnamed
3 associates and colleagues of Mr. Pishevar that he would be the next venture capitalist to go
4 down for sexual harassment and misconduct. Id. 28-29. And according to Mr. Pishevar, a
5 reporter recently told him that numerous reporters were aware of stories about his sexual
6 misconduct and that he had settled a claim involving sexual misconduct. Id. 29.
7 Mr. Pishevar now seeks to use the American courts to continue his effort to stifle reports
8 of his alleged misconduct. But instead of suing any press outlet directly, he has opted for a
9 diversionary tactic: by targeting a PR firm with two founders who formerly worked on
10 Republican campaigns, he hoped to create a false narrative of Republicans vs. Democrats as a
11 smokescreen to forestall comparisons between him and Harvey Weinstein and others who stand
12 accused of preying on women. The timing is important. He filed the lawsuit before reporters
13 published their stories, undoubtedly hoping that his lawsuit would intimidate women and the
14 press from revealing reports of alleged sexual misconduct and harassment. Some press outlets
15 ignored his threats and reported on their investigations of his alleged misconduct. But as
16 Bloomberg reported, his litigation strategy intimidated at least five women from revealing their
17 names.12 Moreover, Mr. Pishevar has used this lawsuit to target the one woman who has been
18 publicly named as one of his alleged victims by serving her with a subpoena for her deposition.
19 Mr. Pishevar asserts claims of defamation and intentional interference with prospective
20 economic relations against Definers Public Affairs (Definers Public Affairs is not a separate legal
21 entity from Definers Corp.), along with Mr. Matthew Rhoades (the CEO) and Mr. Joseph
22 Pounder (the President and Secretary) (collectively, the Defendants). Compl. 5-9, 35-48.
23 Mr. Rhoades and Mr. Pounder are public-relations professionals who have worked on Republican
24 political campaigns and now perform work for a variety of business clients.13
25 The Complaint alleges that Mr. Pishevar is informed and believes that in recent months,
26
11
27 The Sun, Uber Tycoon Rape Rap (Nov. 14. 2017) (Ex. K).
12
Burnside Decl. Ex. C.
28 13
Pounder Decl. 2-3; Rhoades Decl. 2-3.
8
MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 Defendants have been retained by competitors or other business adversaries of Mr. Pishevar to
2 orchestrate and implement a malicious smear campaign. Id. 2. The Complaint does not
3 identify any basis for this claim, nor does it identify any of the competitors or business
4 adversaries who supposedly hired the Defendants to carry out the alleged smear campaign.
5 The Complaint also allegesagain based on nothing more than unsupported information and
6 beliefthat Defendants have spread several false and defamatory rumors about Mr. Pishevar
7 to journalists to tarnish his reputation. Id. 30. Once again, however, the Complaint does not
8 identify any journalist or any other source by name to corroborate the claim that Defendants made
9 any of the alleged defamatory statements. Instead, Mr. Pishevar hope[s] to unearth who . . . is
10 responsible for spreading false rumors about [him] [t]hrough the discovery process.14
11 Contrary to Mr. Pishevars baseless allegations, Defendants have not had any involvement
12 in any smear campaign against him. The allegations are simply false. No Defendant has
13 played any role whatsoever in creating, distributing, or otherwise communicating any aspect of
14 the alleged defamatory statements about him. Indeed, no Defendant has been retained by any
15 competitor or other business adversary or any other entity or individual to orchestrate and
16 implement a malicious smear campaign. Nor has any Defendant been retained by anyone to do
17 any work in connection with Mr. Pishevar. Mr. Pishevar has not been discussed at the daily or bi-
18 weekly meetings during which client engagements and daily to dos are discussed. And all
19 Defendants have searched and confirmed that they do not have any emails or documents
20 reflecting any engagements, communications, or work related to Mr. Pishevar before the filing of
21 the Complaint.15
22 Before the filing of this lawsuit neither Mr. Pounder nor Mr. Rhoades ever spoke to the
23 press about Mr. Pishevar or any aspect of his life, nor did Definers.16 Timothy Miller and Colin
24 Reed are the two individuals at Definers responsible for media relations. Both confirmed that
25
14
26 The Verge, Hyperloop One co-founder Shervin Pishevar takes leave of absence after
sexual assault allegations (Dec. 5, 2017) (Exhibit L).
27 15
Pounder Decl. 4-12; Rhoades Decl. 4-12; see Miller Decl. 3-8; Reed Decl.
3-7; Cotter Decl. 2-10; Rogers Decl. 2-7.
28 16
Pounder Decl. 4-12; Rhoades Decl. 4-12.
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CASE NO. CGC-17-562305
 1 they have not spoken to the press about Mr. Pishevar and did not have any emails or
2 communications discussing Mr. Pishevar before the Complaint was filed.17 In fact, before
3 reading the Complaint, Defendants were unaware and had not heard or discussed with anyone that
4 Mr. Pishevar may have engaged in any of the alleged misconduct mentioned in the Complaint.18
5 It was thus Mr. Pishevar who brought his alleged misconduct to light by filing this lawsuit, not
6 Defendants.
7 Because the Complaint has no factual basis and is simply a strategic tool to deflect public
8 attention and to deter further media investigations into his alleged sexual misconduct, Defendants
9 now move to strike the Complaint under Californias anti-SLAPP statute.
10 III. ARGUMENT
11 Californias anti-SLAPP statute was enacted to combat the use of litigation to chill the
12 valid exercise of . . . freedom of speech. Cal. Civ. Proc. Code 425.16(a). The goal of the
13 statute is to eliminate meritless . . . litigation at an early stage of the proceedings. Seltzer v.
14 Barnes, 182 Cal. App. 4th 953, 961 (2010) (internal quotation omitted). To encourage
15 continued participation in matters of public significance and to ensure that this participation
16 should not be chilled through abuse of the judicial process, the Legislature expressly provided
17 that the anti-SLAPP statute shall be construed broadly. Okorie v. L.A. Unified Sch. Dist., 14
18 Cal. App. 5th 574, 585 (2017) (quoting Cal. Civ. Proc. Code 425.16(a)).
19 Here, Mr. Pishevars suit seeks to penalize and enjoin speech at the core of the First
20 Amendment: he alleges that Defendants have communicated with journalists about matters of
21 public importance concerning a public figure. Moreover, this lawsuit is part of a calculated
22 campaign to chill and enjoin press coverage of his alleged sexual misconduct. Indeed, it appears
23 that he is so determined to deter reporters that he is willing to pick defendants at random and sue
24 them to send a warning to any press outlet that might consider investigating or discussing what he
25 describes as salacious rumors about [his] alleged sexual misconduct. Compl. 29. Because his
26
17
After the Complaint was filed, Definers provided a statement responding to the
27 allegations in the Complaint and fielded a few calls confirming that they were not behind the
allegations in the Complaint. Miller Decl. 6-7; Cotter Decl. 2-10.
28 18
Pounder Decl. 4-12; Rhoades Decl. 4-12.
10
MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 claims are baseless and cannot be supported by a scintilla of evidence, they must be dismissed.
2 A. Legal Standard for Anti-SLAPP Motion
3 Section 425.16 establishes a two-step process for determining whether an action should
4 be stricken as a SLAPP. Navellier v. Sletten, 29 Cal. 4th 82, 88 (2002). First, Defendants must
5 make a prima facie showing that the claims against them are based on alleged activity in
6 furtherance of [the] right of petition or free speech under the United States Constitution or the
7 California Constitution. Cal. Civ. Proc. Code 425.16(b)(1). This burden is not an onerous
8 one. Okorie, 14 Cal. App. 5th at 590. The Defendant is not required to show that his alleged
9 conduct is constitutionally protected under the First Amendment as a matter of law. Id. Nor
10 must the Defendant demonstrate that the cause of action was brought with the intent of chilling
11 the defendants exercise of constitutional speech, Equilon Enterprises LLC v. Consumer Cause,
12 Inc., 29 Cal. 4th 53, 58 (2002), or that the action actually has had a chilling effect on the exercise
13 of such rights. Navellier, 29 Cal. 4th at 88. Rather, to avoid improper shifting of the burdens,
14 a court must generally presume the validity of the claimed constitutional right in the first step of
15 the anti-SLAPP analysis, and then permit the parties to address the issue in the second step of the
16 analysis, if necessary. Okorie, 14 Cal. App. 5th at 590 (internal quotation marks omitted).
17 Second, if Defendants make a prima facie showing of protected activity, the burden shifts
18 to the Plaintiff to produce evidence establish[ing] that there is a probability that [he] will prevail
19 on the claim. Cal. Civ. Proc. Code 425.16(b)(1). To meet that burden, Plaintiff must produce
20 admissible evidence sufficient to support a judgment in his favor. Morrow v. L.A. Unified Sch.
21 Dist., 149 Cal. App. 4th 1424, 1435 (2007). He cannot rely on assertions, but instead must
22 marshal evidence akin to that required to survive a motion for summary judgment. Varian
23 Med. Sys., Inc. v. Delfino, 35 Cal. 4th 180, 192 (2005). This requirement is rigorous by design.
24 [A]n overly-lenient standard would be wholly inappropriate, given that the statute is intended to
25 provid[e] a fast and inexpensive unmasking and dismissal of SLAPPs. Ludwig v. Superior
26 Court, 37 Cal. App. 4th 8, 16 (1995) (internal quotation marks and citation omitted).
27 B. The Anti-SLAPP Statute Applies Here Because The Alleged Statements Are
28 In Furtherance of Free Speech In Connection With Issues of Public Interest
11
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CASE NO. CGC-17-562305
 1 In keeping with the purpose of the Anti-SLAPP statute, the protected category of activity
2 in furtherance of [the] right of petition or free speech is broadly defined. See Cal. Civ. Proc.
3 Code 425.16(e) (defining the category of activity as includ[ing] four statutory examples). It
4 encompasses not only any written or oral statement or writing made in a place open to the public
5 or a public forum in connection with an issue of public interest, but also any other conduct in
6 furtherance of the exercise of . . . the constitutional right of free speech in connection with a
7 public issue or an issue of public interest. Cal. Civ. Proc. Code 425.16(e)(3), (e)(4).
8 To determine whether a Defendants alleged conduct falls into the protected category,
9 courts look to the allegations in the Complaint. See Oviedo v. Windsor Twelve Props., LLC, 212
10 Cal. App. 4th 97, 109 n.10 (2012); Thayer v. Kabateck Brown Kellner LLP, 207 Cal. App. 4th
11 141, 155 (2012). [I]f the allegations concerning protected activity are more than merely
12 incidental or collateral to the Plaintiffs claims, then the Anti-SLAPP law applies and the
13 claims are subject to a motion to strike. Peregrine Funding, Inc. v. Sheppard Mullin Richter &
14 Hampton LLP, 133 Cal. App. 4th 658, 672 (2005) (citations omitted); see also Okorie, 14 Cal.
15 App. 5th at 595 (finding threshold burden satisfied because it is plain from Plaintiffs allegations
16 that Defendants speech and communicative conduct regarding the investigation are not incidental
17 tobut integral toPlaintiffs complaint and each cause of action alleged therein).
18 Here, the Anti-SLAPP law applies because Mr. Pishevars Complaint is based entirely on
19 communications that Defendants allegedly made to the news media about accusations of sex
20 crimes, corrupt business dealings, acting as a Russian agent, and other political activities of a
21 billionaire tech titan who is a top political fundraiser. And as the Complaint admits, the reporters
22 were investigating Mr. Pishevar because they believed that he would be the next venture
23 capitalist to go down for sexual misconduct. Accordingly, and especially in the current media
24 environment, Defendants alleged communications to the press easily qualify as [1] conduct in
25 furtherance of the exercise of . . . the constitutional right of free speech [2] in connection with a
26 public issue or an issue of public interest. Cal. Civ. Proc. Code 425.16(e)(4).
27 First, as a general matter, providing information to reporters plainly qualifies as activity
28 in furtherance of the exercise of . . . the constitutional right of free speech. Id.; see McGarry v.
12
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 1 Univ. of San Diego, 154 Cal. App. 4th 97, 111 (2007) (concluding that statements to reporter fell
2 within the protection of 425.16(e)(4)); see generally Lieberman v. KCOP Television, Inc., 110
3 Cal. App. 4th 156, 166 (2003) (Reporting the news usually requires the assistance of
4 newsgathering, which therefore can be construed as undertaken in furtherance of the news
5 medias right to free speech.). Indeed, it is scarcely possible to imagine any activity that more
6 squarely implicates the right of free speech than conveying information to members of the news
7 media. A free press is the lifeblood of our democracy, and the ability of reporters to gather and
8 report information lies at the very core of the First Amendments protection. See Lieberman, 110
9 Cal. App. 4th at 166. Accordingly, the Complaint squarely implicates the right of free speech
10 because it alleges that Defendants provided information to numerous journalists in furtherance
11 of a media campaign. Compl. 2-3.
12 According to the Complaint, the Defendants engaged in this strategy by providing news
13 reporters with information that was designed to entice the media to investigate further.
14 Compl. 24. Thus, the alleged statements made by Defendants to the news media were not only
15 in furtherance of Defendants own First Amendment right to provide information to the press,
16 but also, the medias right to investigate and publish that information. Cal. Civ. Proc. Code
17 425.16(e)(4). It makes no difference whether the alleged statements themselves were private or
18 public, because subdivision (e)(4) applies to private communications concerning issues of public
19 interest. Hailstone v. Martinez, 169 Cal. App. 4th 728, 736 (2008); Terry v. Davis Cmty.
20 Church, 131 Cal. App. 4th 1534, 1546 (2005) (same). And in any event, the Complaint here
21 expressly alleges that Defendants supposed communications with the media were intended to
22 find their way . . . ultimately to the public. Compl. 19. Indeed, Mr. Pishevar admits that
23 several reporters were investigating his conduct with the hopes of breaking a story. Id. 28.
24 Second, all of Defendants alleged statements to the news media as detailed in the
25 Complaint involve issues of significant public interest, id., due to Mr. Pishevars extraordinary
26 stature and influence in the fields of business and politics and the continual attention paid to him
27 and those issues by the media. See Rivero v. Am. Fedn of State, Cty., & Mun. Emps., AFL-CIO,
28 105 Cal. App. 4th 913, 924 (2003) (observing that though no case defines the precise boundaries
13
MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305
 1 of a public issue, it generally concerns (1) a person or entity in the public eye, (2) conduct
2 that could directly affect a large number of people beyond the direct participants, or (3) a topic
3 of widespread, public interest). Indeed, his Complaint all but concedes the point by
4 acknowledging that multiple reporters are eager to break a story about his alleged
5 inappropriate conduct. Compl. 28. The reason for thisand for the constant coverage of Mr.
6 Pishevar more generallyis obvious. By his own admission, as Mr. Pishevar is a high-profile
7 businessmen in the public spotlight. See Compl. 13-18. To highlight just how high-profile he
8 is, during the 2016 presidential election cycle, he hosted a $353,000-per-plate fundraiser for
9 Hillary Clinton at his home, featuring George Clooney as a special guest.19 In the past year, the
10 media also reported on: his tweet that he planned to start a movement for California to secede,20
11 his meetings with Vladamir Putin,21 his dating Tyra Banks,22 his letter opposing Benchmark
12 Capitals lawsuit against former Uber CEO Travis Kalanick, and other details of his business and
13 personal life. In light of his status, influence, and the widespread press coverage of his affairs, it
14 is a matter of intense public interest whether he has engaged in (1) sexual misconduct, (2)
15 international political corruption, or (3) corrupt business dealings.
16 1. The statements about Mr. Pishevars alleged sexual misconduct are matters of
17 acute public interest because the public has a legitimate right to inquire about the prevalence of
18 sexual abuse committed by wealthy and powerful men. This is especially true at the present time,
19 because society is in the midst of a widespread epidemic of similar allegations. As one press
20 account noted, [a]mid the widening scandal over Hollywood producer Harvey Weinsteins
21 decades-long history of sexually assaulting actresses and growing concern over the treatment of
22 women in Silicon Valley, the [rape accusation against Mr. Pishevar] is sure to spur more
23 questions about the toxic culture in such male-dominated industries.23 That is underscored by
24 19
Politico, Clinton asks for $353K to sit with the Clooneys (Mar. 24, 2016) (Ex. M).
20
25 Newsweek, California v. Trump: The Fight Begins for Health Care, Immigration and
the Future of America (Jan. 23, 2017) (Ex. N); National Review, No, California (April 17, 2017)
26 (Ex. O).
21
Newsweek, Vladimir Putin Imagines Hyperloop Silk Road (June 23, 2016) (Ex. P).
27 22
Dailymail.com, What a Catch! Tyra Banks dating Iranian billionaire Shervin Pishevar
with couple spending holidays together vacationing near St. Barts (Jan. 15, 2014) (Ex. Q).
28 23
Burnside Decl. Ex. J.
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 1 recent press attention to allegations of sexual misconduct at Uber and by its ex-CEO Travis
2 Kalanik, where Mr. Pishevar is a major investor and former board observer.24 Accordingly, the
3 alleged statements relating to sexual misconducti.e., that Mr. Pishevar had an incident with a
4 prostitute in Europe, paid money to settle a claim for sexual assault in London, or is the next
5 to go down in scandal, Compl. 27(c), (d); 30(d), (e), (h)all clearly involve an issue of
6 public interest under section 425.16(e)(4). See, e.g., Sipple v. Found. For Natl Progress, 71
7 Cal. App. 4th 226, 238 (1999) (allegations of physical and verbal abuse against a prominent
8 media strategist were public issue because domestic violence is an extremely important public
9 issue in our society); M.G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 629 (2001) (general topic
10 of child molestation in youth sports is significant and of public interest).
11 2. It is also a matter of public interest whether Mr. Pishevar is an agent of the
12 Russian government, Compl. 27(a), 30(a), has been involved with political corruption in
13 Azerbaijan, id. 30(b), or has Russia[n] connections that are linked to the call for
14 Californias secession from the United States, id. 27(b). And so is Mr. Pishevars relationship
15 with Vladimir Putin. International political corruption is inherently a matter of public concern,
16 and the issue of Russian interference in American affairs is of particular salience now in the wake
17 of the 2016 presidential election. Indeed, any connection between Mr. Pishevar and Russia is of
18 special public interest given that as recently as 2013 he was one of the 15 leaders in technology
19 who met with President Obama to address several technology related issues, including
20 unauthorized intelligence disclosures. Compl. 17. As the press has reported, moreover, Mr.
21 Pishevar has had high-profile business dealings with Mr. Putin that would benefit Mr. Pishevars
22 main company, Hyperloop One.25 Accordingly, all of the alleged statements about Mr. Pishevars
23 Russian connections or other involvement in international political corruption plainly involve
24 issues of public interest that qualify for Anti-SLAPP protection under section 425.16(e)(4).
25 3. Finally, the alleged statements about Mr. Pishevars corrupt business dealings also
26

27 24
Vanity Fair, Mass Firings at Uber as Sexual Harassment Scandal Grows (June 6, 2017)
(Ex. R).
28 25
Burnside Decl. Ex. M.
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 1 easily qualify as matters of public interest. Id. For the past four years, he has been named to
2 the Forbes Midas List of the top 100 venture capital investors. Compl. 13-18. His
3 investments have generated 73x returns of approximately $6 billion in the past six years, owing
4 to his stakes in household-name companies such as Uber, Airbnb, Tumblr, and Warby Parker. Id.
5 He has served on the boards of Uber and the Fulbright Scholarship, and has also been an
6 Entrepreneurial Ambassador for the U.S. State Department. Id. Accordingly, in light of his
7 extraordinary stature in the business community and beyond, it is a matter of intense public
8 interest if he has no money and is unable to raise additional funds, or has used investors
9 money to line his own pockets, or has engaged in misconduct or other inappropriate
10 behavior, or his employees reputation would be tarnished by working for him. Compl.
11 27(e), (f); 30(c), (g), (i) (j). If any of these statements were true, or even partially true, they
12 would be a major story in the financial press with significant ethical and economic implications
13 for the venture capital community in Silicon Valley, and the technology industry more broadly.
14 See Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1042 (2008) (statements from
15 company employee to magazine regarding specific activities of companys owner concerned an
16 issue of public interest as the owner was a prominent businessman and celebrity and the
17 magazines readership had a particular interest in his activities).
18 For these reasons, all of the statements that Defendants allegedly made to the news media
19 about Mr. Pishevar easily qualify for prima facie protection under the Anti-SLAPP statute as
20 conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection
21 with a public issue or an issue of public interest. Cal. Civ. Proc. Code 425.16(e)(3), (e)(4).
22 C. Plaintiff Cannot Establish Any Probability That He Will Prevail
23 Because Plaintiffs claims are based on alleged speech that falls within the core protection
24 of the Anti-SLAPP statute, the Court must grant Defendants special motion to strike unless
25 Plaintiff can establish[] that there is a probability that [he] will prevail by producing
26 admissible evidence in support of his claims. Okorie, 14 Cal. App. 5th at 590; Cal. Civ. Proc.
27 Code 425.16(b)(1). Mr. Pishevar cannot meet that burden because his Complaint is based on
28 groundless speculation dressed up as information and belief. As described in the attached
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CASE NO. CGC-17-562305
 1 affidavits, Defendants have not played any part whatsoever in the alleged smear campaign that
2 forms the basis of his Complaint. Thus, because Plaintiff does not and cannot point to any
3 evidence to substantiate his claims, this case should be dismissed.
4 To determine whether Plaintiff has met his burden of showing a probability of prevailing,
5 the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure.
6 Varian, 35 Cal. 4th at 192. In making its determination, the court shall consider the pleadings,
7 and supporting and opposing affidavits stating the facts upon which the liability or defense is
8 based. Cal. Civ. Proc. Code 425.16(b)(2). Once Defendants have provided affidavits showing
9 that they have nothing to do with Plaintiffs allegations, the burden shifts to the plaintiff . . . to
10 show that [there is] a triable issue of material fact that would allow his claims to prevail.
11 Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826, 849 (Cal. 2001) (citing Celotex Corp. v. Catrett,
12 477 U.S. 317, 326 (1986)). To carry this burden, Plaintiff may not rely upon the mere
13 allegations or denials of Defendants affidavits, but instead must set forth the specific facts
14 showing that a triable issue of material fact exists. Id. (quoting Cal. Civ. Proc. Code,
15 437c(o)(2)). In the Anti-SLAPP context, moreover, Plaintiff not only cannot rely on allegations
16 in the complaint, but [also] must set forth evidence that would be admissible at trial to support
17 his claims. Overstock.com, Inc. v. Gradient Analytics, Inc. 151 Cal. App. 4th 688, 699 (2007)
18 (emphasis added). As the Court of Appeals held in Evans v. Unkow, 38 Cal. App. 4th 1490, 1497
19 (1995), information and belief, within the context of a special motion to strike a SLAPP suit, is
20 inadequate to show a probability that the plaintiff will prevail on the claim. (quoting Cal. Civ.
21 Proc. Code 425.16(b)).
22 On their face, Plaintiffs allegations are extraordinarily flimsy and utterly lacking in any
23 factual support. The Complaint does not identify any person who ever heard any Defendant make
24 any of the alleged defamatory statements. It does not even identify any source who claims to
25 have second-hand knowledge that any of the Defendants made any of the defamatory statements.
26 It does not identify any reporter or other informant who could corroborate its claims. Nor does it
27 make any specific factual allegation that, if true, would support a finding of liability against any
28 Defendant. The Complaint would not have been written this way if Plaintiff had any real basis
17
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CASE NO. CGC-17-562305
 1 for believing that Defendants made the alleged defamatory statements about him. That is likely
2 because this lawsuit is not filed in good faith, but is a public-relations ploy to deflect blame from
3 Mr. Pishevar and stifle reporting of his alleged sexual misconduct and other activities.
4 In contrast to the vacuous Complaint, Defendants attached affidavits specifically swear,
5 based on the affiants direct knowledge, that none of the Defendants in this case has anything to
6 do with any of the allegations in the Complaint: Defendants have had no involvement in the
7 supposed smear campaign that Mr. Pishevar alleges has been waged against him. They have
8 played no part in making any of the alleged defamatory statements or spreading any of the alleged
9 rumors about him. They did not talk to the press about him or encourage anyone to ask questions
10 about his behavior. They have not been hired by anyone to damage his reputation or discuss him
11 in any way. In short, the allegations against them are completely fabricated.26
12 Because Defendants affidavits show that they did not make any of the alleged statements
13 about Mr. Pishevar and had nothing to do with the alleged smear campaign against him, he
14 must produce admissible evidence to the contrary to show that he will prevail on either of his
15 claims. First, his defamation claim (Count One) requires him to produce evidence that
16 Defendants made some statement that is false, defamatory, unprivileged, and has a tendency to
17 injure or cause special damage. Hawran v. Hixson, 209 Cal. App. 4th 256, 277 (2012). He
18 cannot carry that burden because he cannot produce any evidence that Defendants made the
19 alleged statements about him. To the contrary, all of the attached affidavits and at least one
20 published press account make clear that Defendants had nothing to do with the alleged
21 statements. For example, Forbes Magazine stated that it began inquiring about the [London
22 rape] incident after learning that it might involve a Silicon Valley personality, but had no
23 contact with Definers before Pishevar filed the defamation case against Defendants.27
24 Moreover, because Mr. Pishevar is a high-profile public figure who has assumed an
25 influential role in ordering society, he must not only show that Defendants made the alleged
26

27 26
See, e.g., Pounder Decl. 4-12; Rhoades Decl. 4-12.
27
Forbes, Shervin Pishevar, Arrested But Never Charged Over Alleged Rape, Says Hes
28 Victim Of Smear Campaign (Nov. 9, 2017) (Ex. S).
18
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 1 statements about him (which they did not), but he also must show that they acted with actual
2 malicethat is, with knowledge that [the statements were] false or with reckless disregard of
3 whether [they were] false or not. Khawar v. Globe Intl, Inc., 19 Cal. 4th 254, 262-64 (1998).
4 Mr. Pishevar is both an all-purpose public figure (because he occup[ies] [a] position[] of such
5 persuasive power and influence), as well as a limited-purpose public figure (because he has
6 thrust [him]self to the forefront of public controversies involving business and politics). Id.
7 at 263-64 (internal quotation marks and citations omitted). Thus, he must satisfy the actual
8 malice requirement. Indeed, his burden is particularly high, because the First Amendment
9 requires him to produce evidence that could support a reasonable jury finding [of] actual malice
10 not only under a preponderance standard, but by clear and convincing evidence. Anderson v.
11 Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986) (emphasis added). Once again, however, Mr.
12 Pishevar cannot produce any evidence on this point.
13 Second, Mr. Pishevars claim for intentional interference with prospective economic
14 advantage (Count Two) must fail for similar reasons. Once again, he has no evidence whatsoever
15 that Defendants were involved in any of the alleged statements about him. And this claim is
16 entirely derivative of his defamation claim. See, e.g., Contemporary Servs. Corp. v. Staff Pro
17 Inc., 152 Cal. App. 4th 1043, 1060 (2007) (action for intentional interference with prospective
18 economic advantage could not be based on conduct insufficient to prove plaintiffs defamation
19 claims). Thus, because his defamation claim fails, so too must his intentional-interference claim.
20 IV. CONCLUSION
21 For the reasons stated above, the Court should dismiss the Complaint in its entirety.28
22
Dated: December 6, 2017 Jones Day
23
By: /S/ David C. Kiernan
24 David C. Kiernan

25 Attorneys for Defendants

MATTHEW RHOADES, JOSEPH
26 POUNDER, DEFINERS CORP., AND
DEFINERS PUBLIC AFFAIRS
27
28
Under Cal. Civ. Proc. Code 425.16, defendants are entitled to attorneys fees and
28 costs. Defendants will so move for attorneys fees and costs after the court rules on the motion.
19
MEMORANDUM OF POINTS AND AUTHORITIES ISO SPECIAL MOTION TO STRIKE
CASE NO. CGC-17-562305