Thimes Solutions, Inc. v. TP LINK USA CORPORATION; AUCTION BROTHERS, INC., DBA Amazzia

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THIMES SOLUTIONS, INC.,
Plaintiff-Appellant,
v.
TP LINK USA CORPORATION;
AUCTION BROTHERS, INC., DBA
Amazzia,
Defendants-Appellees,
and
MIKHAIL J. FIKHMAN, DBA Amazzia; et
al.,
Defendants.
No. 21-55407
D.C. No. 2:19-cv-10374-SB-E
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stanley Blumenfeld, Jr., District Judge, Presiding
Argued and Submitted April 7, 2022
Pasadena, California
Before: MURGUIA, Chief Judge, and GRABER and BEA, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
APR 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Plaintiff Thimes Solutions, Inc., timely appeals the judgment in favor of
Defendants TP-Link USA Corporation and Auction Brothers, Inc., d.b.a. Amazzia.
We review de novo the legal issues on appeal. See Kearney v. Foley & Lardner,
LLP, 590 F.3d 638, 643 (9th Cir. 2009) (failure to state a claim); id. (granting of a
motion to strike under California’s anti-SLAPP statute); id. (the Noerr-Pennington
doctrine); Wochos v. Tesla, Inc., 985 F.3d 1180, 1197 (9th Cir. 2021) (futility of
amending a complaint). We affirm in part, reverse in part, and remand.
1. The district court erred in granting Defendants’ anti-SLAPP special
motion to strike. Even if Defendants prevail at step one of the inquiry, see Kettler
v. Gould, 231 Cal. Rptr. 3d 580, 592 (Cal. Ct. App. 2018) (starting the anti-SLAPP
analysis, in similar circumstances, by considering the litigation privilege at step
two), Defendants fail at step two. Step two of the anti-SLAPP inquiry requires
Plaintiff to show that it has a probability of success on its claims. Olivares v.
Pineda, 253 Cal. Rptr. 3d 213, 221 (Cal. Ct. App. 2019). Plaintiff’s complaint
states a prima facie case on the state-law claims, and Defendants’ sole argument to
the contrary is that California’s litigation privilege shields their complaints to
Amazon from all litigation. But California’s litigation privilege applies only to
communications preliminary to "proposed" litigation that was seriously
contemplated at the time of the communication. E.g., Makaeff v. Trump Univ.,
LLC, 715 F.3d 254, 264 (9th Cir. 2013); Strawn v. Morris Polich & Purdy, LLP,

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242 Cal. Rptr. 3d 216, 224 (Cal. Ct. App. 2019). Defendants’ complaints to
Amazon did not propose litigation. Nor, taking the facts in the light most
favorable to Plaintiff, did Defendants seriously contemplate litigation at that time.
California’s litigation privilege therefore does not shield Defendants’ complaints to
Amazon from litigation. Accordingly, Plaintiff prevails on the anti-SLAPP
inquiry.
2. The district court correctly dismissed Plaintiff’s claim under the Lanham
Act. The Lanham Act applies only to communications that are disseminated to the
"relevant purchasing public." Coastal Abstract Serv., Inc. v. First Am. Title Ins.
Co., 173 F.3d 725, 735 (9th Cir. 1999). The only recipient of the communication,
Amazon, is not a purchaser. No circuit precedent supports Plaintiff’s argument
that dissemination to a non-purchaser suffices. And nothing in the Act supports
Plaintiff’s unduly broad reading of the Act’s requirement of "commercial
advertising or promotion," 15 U.S.C. § 1125(a)(1)(B), as encompassing private
communications to a single non-purchasing entity.
3. The district court correctly dismissed Plaintiff’s claims under the
Sherman Antitrust Act. Plaintiff failed to allege plausibly either that Defendant
TP-Link restricted output or that manufacturers lack the capacity to increase
output. Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1434, 1441 (9th Cir.
1995).

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4. The district court correctly held that the Noerr-Pennington doctrine does
not apply. The doctrine protects a person’s ability to petition the government,
including the courts, for redress. The doctrine prohibits lawsuits challenging
communications made during litigation. In order to provide persons with
"breathing space" to exercise the right to petition, we have extended the doctrine to
encompass prelitigation settlement demands and cease-and-desist letters sent to
potential defendants. Sosa v. DIRECTV, Inc., 437 F.3d 923, 929–32, 942 (9th Cir.
2006). But we have never applied, and we see no justification to apply, the
doctrine to the communications sent here, which were delivered solely to a third
party and which did not propose or threaten litigation.
5. In sum, we affirm the dismissal of the federal-law claims, we reverse the
dismissal of the state-law claims, and we remand for further proceedings. Because
we reverse the dismissal of the state-law claims, we also reverse the district court’s
related award of attorney’s fees pursuant to California Code of Civil Procedure
section 425.16(c)(1).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Each party shall bear its own costs on appeal.

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