Portable Power, Inc. v. Energizer Holdings, Inc. et al

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United States District Court
Northern District of California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
PORTABLE POWER, INC., et al.,
Plaintiffs,
v.
ENERGIZER HOLDINGS, INC., et al.,
Defendants.
Case No. 23-cv-02091-PCP
ORDER DENYING MOTIONS TO
DISMISS AND STRIKE
Re: Dkt. Nos. 178, 179
Counterplaintiff Energizer Holdings accuses counterdefendants Portable Power, Richard
Petretti, and Stephanie Rice (counter-defendants) of conversion, civil conspiracy, misappropriation
of trade secrets under federal and California law, and violating California’s Unfair Competition
Law. Energizer alleges that Rice, a third-party representative of Energizer, gave Portable Power
owner Richard Petretti confidential information about Energizer’s internal operations, including
pricing and strategic information. Portable Power and Petretti now move to dismiss Energizer’s
countercomplaint for failure to state a claim and move to strike the countercomplaint under
California’s anti-SLAPP statute, arguing that Energizer’s claims are barred by Noerr-Pennington
immunity and California’s litigation privilege, and that the California Uniform Trade Secret Act
(CUTSA) preempts Energizer’s non-CUTSA state law claims. For the reasons stated below,
Portable Power’s motions are denied.
BACKGROUND
Energizer’s counterclaims originate out of an antitrust lawsuit against Energizer, one of the
country’s largest battery makers, and Walmart, one of the country’s largest battery retailers,
claiming that Energizer and Walmart drove up the price of batteries in the United States.
According to three groups of consumers—wholesale resellers of batteries, Walmart end
consumers, and consumers of overcharged retailers—Walmart demanded that Energizer ensure
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that competing retailers not undercut Walmart’s prices, and Energizer complied with Walmart’s
demands by raising prices for or excluding retailers who undercut Walmart.
On January 6, 2026, Energizer filed its amended answer and included with its answer
counterclaims against counterdefendants Portable Power, Richard Petretti, and Stephanie Rice.
Based on documents produced in discovery, Energizer alleges that from 2016 to 2023, Portable
Power owner Richard Petretti “coerced and manipulated [Stephanie] Rice, an Energizer contractor
who managed his accounts,” into giving him confidential information for Portable Power and
Petretti’s gain. Petretti allegedly did so by giving Rice “expensive personal gifts” and “flattery and
professions of love.” Rice allegedly gave Petretti “date code charts” and “code shelf-life”
information about Energizer’s “Internet Sales Authorization Program,” internal Energizer email
threads discussing pricing, and internal emails containing legal discussions about pricing policies,
often in exchange for wine. Energizer alleges that the information Rice gave to Petretti was subject
to Energizer’s reasonable efforts to maintain its secrecy.
Petretti allegedly gave Energizer’s confidential information to “a litigation funder, Amicus
Capital, which on information and belief is involved in bankrolling Portable Power’s antitrust
lawsuit, as well as to his lawyers.” Energizer alleges that Petretti used the confidential information
he obtained from Rice to file Portable Power’s lawsuits against Energizer. Energizer only
discovered Rice’s leaks to Petretti on June 3, and July 17, 2025, when Portable Power produced
documentation of Petretti’s and Rice’s conduct in discovery.
Energizer’s answer asserts counterclaims for conversion, civil conspiracy,
misappropriation of trade secrets in violation of the California Uniform Trade Secrets Act
(CUTSA) and the federal Defend Trade Secrets Act, and violations of California’s Unfair
Competition Law (UCL). Energizer requests a jury trial and damages, as well as injunctive relief
including the “imposition of a constructive trust to prevent Richard Petretti and Portable Power
and their agents from profiting from their wrongful acquisition and use of Energizer’s privileged
and confidential information.”
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LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include a “short and plain
statement of the claim showing that the pleader is entitled to relief.” If the complaint does not do
so, the defendant may move to dismiss the complaint under Federal Rule of Civil Procedure
12(b)(6). Dismissal is required if the plaintiff fails to allege facts allowing the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint
lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.”
Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule
12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In considering a Rule 12(b)(6) motion, the Court must “accept all factual allegations in the
complaint as true and construe the pleadings in the light most favorable” to the non-moving party.
Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). While legal
conclusions “can provide the [complaint’s] framework,” the Court will not assume they are correct
unless adequately “supported by factual allegations.” Iqbal, 556 U.S. at 679. Courts do not “accept
as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable
inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (quoting Sprewell
v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).
ANALYSIS
I. The Noerr-Pennington doctrine does not bar Energizer’s counterclaims.
The counterdefendants first assert that Energizer’s counterclaims are barred by Noerr-
Pennington immunity. That doctrine provides that “litigation activity … cannot form the basis of
liability unless the litigation is a ‘sham.’” Rock River Commc’ns, Inc. v. Universal Music Grp.,
Inc., 745 F.3d 343, 347 n.1 (9th Cir. 2014) (citing E. R.R. Presidents Conf. v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers v. Pennington, 381 U.S. 657
(1965)). To determine whether a claim is barred by Noerr-Pennington immunity, a defendant must
establish that: 1) “the lawsuit imposes a burden on petitioning rights,” 2) “the alleged activities
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constitute protected petitioning activity,” and 3) “the statutes at issue may be construed to preclude
that burden on the protected petitioning activity.” Kearney v. Foley & Lardner, LLP, 590 F.3d
638, 644 (9th Cir. 2009). To resolve the counterdefendants’ motion, the Court need only consider
the second condition—namely, whether the counterclaims arise from “activities [that] constitute
protected petitioning activity.” Id.
The Noerr-Pennington doctrine protects “petitions directed at any branch of government”
as well as “conduct incidental to the prosecution of a suit, like pre[-]suit demand letters and
discovery communications.” B&G Foods N. Am. v. Embry, 29 F.4th 527, 535 (9th Cir. 2022)
(cleaned up). Thus, the doctrine protects litigation activities like bringing a lawsuit or filing
pleadings or motions before a court, as well as certain related communications. See id. at 536
(holding that defendants’ seeking to enforce a state law was protected petitioning activity); Sosa v.
DIRECTV, Inc., 437 F.3d 923, 933 (9th Cir. 2006).
Energizer alleges that Petretti gathered information that informed both Portable Power’s
business strategy and its preparation of this lawsuit. Energizer accuses Portable Power of violating
its rules for retailers and misappropriating its confidential business information. Petretti allegedly
“manipulated Ms. Rice … to illegally obtain confidential and privileged Energizer information for
his own financial benefit, and eventually to support his planned lawsuit against Energizer.”
Though Energizer alleges that Petretti used the confidential business information received from
Rice in the eventual lawsuit against Energizer, Energizer also alleges that Petretti used Rice’s
information “to secure financially advantageous terms for Portable Power’s business operations,
including improper pricing as well as strategic guidance on Energizer’s enforcement policies,
which allowed him to subvert those policies.”
The connection between Portable Power’s lawsuit and the purportedly illegal sharing of
Energizer’s confidential business information with Peretti is too attenuated to fall within the scope
of Noerr-Pennington. In Sosa v. DIRECTV, Inc., the Ninth Circuit concluded that pre-litigation
demand letters were protected First Amendment petitioning activity in order to “preserve the
breathing space required for the effective exercise of the rights [Noerr-Pennington] protects.” 437
F.3d at 933; see also B&G Foods, 29 F.4th at 536. But Portable Power and Petretti’s alleged
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actions—illegally obtaining internal Energizer business information—were not protected First
Amendment petitioning activity because, as alleged, such unlawful information gathering is not
required to effectively exercise the right to petition the state for redress. 437 F.3d at 933.
Portable Power argues that its “pre-litigation communications with Rice, as described by
Energizer, are part of protected petitioning activity” because the communications “are not merely
‘incidental’ to the lawsuit, which is all that is required to trigger protection, but inseparable from
it.” Motion to Dismiss at 10. But the fact that Petretti’s communications with Rice pre-dated and
informed the filing of Portable Power’s suit does not immunize Portable Power from Energizer’s
counterclaims or convert the alleged unlawful conduct into petitioning activity. Portable Power’s
argument would risk immunizing any misappropriation of confidential information merely
because it occurred before, and informed, the filing of a suit. See Opposition at 7. Pre-suit
investigations can encompass a wide range of activities, some of which are legal (such as
conducting legal research), and some of which are not (such as stealing a company’s trade secrets
and other confidential information). Portable Power’s allegedly improper receipt of Energizer’s
confidential information may have informed the filing of Portable Power’s suit, but the collection
is too unlike the category of activities the Ninth Circuit has described as being “incidental” to
petitioning activity to make Noerr-Pennington applicable. See Kearney, 590 F.3d at 646.
Portable Power’s cited authorities are inapposite or unpersuasive. Sosa dealt with pre-
litigation demand letters that threatened litigation unless the recipients settled with DIRECTV.
437 F.3d at 926, 934–35. While Thomas v. Housing Authority, 2006 WL 5670938 (C.D. Cal. Feb.
28, 2006), stated in passing that the plaintiffs’ claims were barred by Noerr-Pennington “to the
extent they [were] premised on … any investigation that led to the filing of the action,” id. at *10,
the court clarified that defendants’ protected activity had started before the investigation at issue
when they served plaintiff with a “three day notice to quit” which was “a prerequisite to the filing
of an unlawful detainer action.” See id. at *10 n.50. The protected investigation consisted of “any
investigation that took place after [plaintiffs’] receipt of the three day notice to quit.” Id. Thus the
defendants in Thomas conducted their investigation to directly advance petitioning activity that
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had already occurred.1 Harper v. City of Arcadia, 2008 WL 11410019, at *15 n.71, 16 (C.D. Cal.
July 14, 2008), is also not particularly helpful to counter-defendants, as that court found Noerr-
Pennington inapplicable.
In short, counter-defendants have not identified any decision expanding Noerr-Pennington
to immunize otherwise unlawful information gathering solely because the information was, at
some later point, used to file a lawsuit. The Court is likewise unwilling to extend the doctrine to
that degree. Accordingly, Noerr-Pennington immunity does not bar Energizer’s counterclaims.
II. California’s litigation privilege does not bar Energizer’s counterclaims.
Much like its Noerr-Pennington argument, Portable Power argues that California’s
litigation privilege bars Energizer’s state law claims because the privilege extends to statements
made before a lawsuit, including statements made in preparation for or to investigate a lawsuit.
MTD at 14 (quoting Bergstein v. Stroock & Stroock & Lavan LLP, 236 Cal. App. 4th 793, 814
(2015)).
California Civil Code Section 47(b) privileges any “publication or broadcast” made in a
judicial proceeding. Action Apartment Ass’n Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1241
(2007). The California Supreme Court has held that the litigation privilege “extends to any
communication: (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some
connection or logical relation to the action.” Kimmel v. Goland, 51 Cal. 3d 202, 209 (1990)
(quoting Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990)). The privilege also extends to “any
publication required or permitted by law in the course of a judicial proceeding to achieve the
objects of the litigation, even though the publication is made outside the courtroom and no
function of the court or its officers is involved.” Silberg, 50 Cal. 3d at 212. “[T]he privilege of
section 47(2) precludes recovery for tortiously inflicted injury resulting from publications or
broadcasts made during the course of judicial and quasi-judicial proceedings, but does not bar
1 It is also unclear what aspects of the defendants’ investigation plaintiffs were challenging in
Thomas. The plaintiffs’ primary claim in that case was premised on the defendants’ filing of an
unlawful detainer lawsuit—conduct that unquestionably constituted petitioning.
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recovery for injuries from tortious conduct regardless of the purpose for which such conduct is
undertaken.” Kimmel v. Goland, 51 Cal. 3d at 205.
Portable Power has not established that the litigation privilege protects it from the state law
claims asserted here. Kimmel is instructive. In that case, the California Supreme Court held that
the litigation privilege did not apply to plaintiffs’ surreptitious recording of their telephone
conversations with mobile home park managers, notwithstanding that the plaintiffs were
contemplating litigation involving the managers, because “the acts upon which liability was
premised were committed in anticipation of litigation but prior to the commencement of any actual
judicial proceeding.” 51 Cal. 3d at 211. The court distinguished between “the taping of
confidential telephone conversations,” which was not privileged, and “any ‘publication’ or
‘broadcast’ of the information contained in these conversations,” which was. Id. at 209.
Similarly here, defendants’ alleged use of Energizer’s confidential information is not
privileged. The gravamen of the action involves Petretti’s procurement and misuse of confidential
information, not the communications that helped him procure that information or the subsequent
use of that information to inform the filing of this lawsuit. Rusheen v. Cohen, 37 Cal. 4th 1048,
1058 (2006). Energizer’s counterclaims are not premised on what Petretti said but what he did in
procuring that confidential information. See Answer ¶¶ 62–89 (alleging claims for conversion,
civil conspiracy, state and federal trade secret misappropriation, and UCL).
In reply, Portable Power re-asserts that Energizer’s counterclaims are unlike those of the
Kimmel plaintiffs because Energizer’s “claims arose from Portable Power’s communicative acts in
relation to its lawsuit against Energizer.” Reply at 14. But, again, Energizer’s counterclaims arise
from Portable Power’s receipt of confidential information, not from an action that was
“communicative in its essential nature.” See Rusheen, 37 Cal. 4th at 1058. Therefore, the litigation
privilege does not bar Energizer’s suit.
III. The CUTSA does not preempt Energizer’s other state law claims.
The “CUTSA preempts common law claims that are based on the same nucleus of facts as
the misappropriation of trade secrets claims.” Implicit Conversions, Inc. v. Stine, 2025 WL
2323354, at *3 (N.D. Cal. Aug. 11, 2025) (cleaned up). At the same time, CUTSA “does not
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affect … other civil remedies that are not based upon misappropriation of a trade secret.” Cal. Civ.
Code § 3426.7(b). “[T]he determination of whether a claim is based on trade secret
misappropriation is largely factual.” K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations,
Inc., 171 Cal. App. 4th 939, 954 (2009).
Counterdefendants argue that the CUTSA preempts Energizer’s conversion, civil
conspiracy, and unfair competition claims. But Energizer’s counterclaims are not premised on
entirely the same nucleus of facts as the alleged misappropriation of trade secrets giving rise to
Energizer’s CUTSA claim. As Energizer notes, its conversion, civil conspiracy, and unfair
competition claims “arise in part from Counterdefendants’ conspiracy to misappropriate (and
resulting dominion over) Energizer’s privileged information.” Opposition at 13. While that
privileged information may include trade secrets, it is not limited to such secrets. Energizer notes,
for example, that the information includes documents that it believes are protected by the attorney-
client privilege but that might not themselves constitute trade secrets. As a result, its non-CUTSA
state law claims are not necessarily dependent on the misappropriation of trade secrets. See Spring
Design, Inc. v. Barnesandnoble.com, LLC, 2010 WL 11607095, at *2 (N.D. Cal. Apr. 8, 2010);
Broidy Cap. Mgmt. LLC v. Muzin, 2022 WL 1801031, at *2 (D.D.C. June 2, 2022) (holding that
common law claims based on alleged theft of private communications were not preempted by
plaintiff’s CUTSA claim), vacated on other grounds, 2023 WL 6795809 (Oct. 13, 2023).
To be certain, if the record developed in discovery suggests that all of the information at
issue with respect to Energizer’s state common law claims falls within the scope of the CUTSA,
then the CUTSA would preclude Energizer from seeking recovery on other common law theories.
But at this stage, the Court cannot conclude that the CUTSA entirely not preempts Energizer’s
non-CUTSA state law claims.
IV. California’s anti-SLAPP statute does not bar Energizer’s claims.
Finally, Portable Power moves to strike Energizer’s California state law counterclaims
under California Civil Procedure Code § 425.16 and seeks an award of fees and costs. Resolving
an anti-SLAPP motion under § 425.16 involves two steps. The defendant must first show that the
plaintiff’s claim arises from an action in furtherance of the defendant’s protected conduct. If the
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first step is met, then the plaintiff must show a probability of prevailing on the claims. See Cal.
Code Civ. Proc. § 425.16(b)(1). Because counterdefendants challenge the “legal deficiencies” of
counterplaintiffs’ claims rather than bringing an evidence-based anti-SLAPP motion, the Court at
the second step must apply the standard governing a motion to dismiss under Rule 12(b)(6). See
Herring Networks, Inc. v. Maddow, 8 F.4th 1148, 1155–56 (9th Cir. 2021).
For the reasons set forth above, the first step is likely not satisfied. But even if defendants’
conduct were protected, Energizer has shown a probability of prevailing on its claims, which
requires only that the plaintiff “state and substantiate a legally sufficient claim.” Mindys Cosms.,
Inc. v. Dakar, 611 F.3d 590, 598–99 (9th Cir. 2010) (quoting Jarrow Formulas, Inc v. LaMarche,
31 Cal. 4th 728 (2003)). For the same reasons the Court denies counter-defendants’ motion to
dismiss, Energizer has stated legally sufficient claims. Defendants’ motion to strike is therefore
denied.
CONCLUSION
For the foregoing reasons, the Court denies Portable Power’s motion to dismiss and its
motion to strike.
IT IS SO ORDERED.
Dated: August 3, 2026
P. Casey Pitts
United States District Judge
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