Messina v. Krakower and Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

United States Court of Appeals, District of Columbia Circuit
439 F.3d 755 (2006)

ELI5:

Rule of Law:

An attorney is protected by the absolute judicial proceedings privilege from defamation claims for statements made in communications preliminary to a proposed judicial proceeding, provided the statements have some relation to that proceeding.

Facts:

Karyne Messina and Susan Fontana were equal owners and co-presidents of a corporation named Totally Italian.com, Inc.
By December 2002, significant disputes arose between Messina and Fontana regarding the management of the business.
Fontana retained attorney Daniel Krakower and his law firm to represent her in the conflict.
Fontana had previously introduced Chaim Kalfon to Messina as an individual authorized to negotiate a settlement of their business partnership.
Krakower drafted a letter to Messina on Fontana's behalf, outlining numerous grievances, accusing Messina of improper and potentially illegal actions, and proposing a buyout process.
The letter explicitly stated it was for settlement purposes and threatened that Fontana would be "forced to commence legal proceedings and/or dissolution of the Corporation" if Messina did not respond by a specific deadline.
Before sending the letter to Messina, Krakower emailed a copy to his client, Fontana, and to Chaim Kalfon.
On December 31, 2002, Krakower sent the final letter to Messina.

Procedural Posture:

Karyne Messina filed a diversity action for defamation against Daniel Krakower and his law firm in the United States District Court for the District of Columbia.
The defendants filed a motion to dismiss and/or for summary judgment, asserting the judicial proceedings privilege.
Messina opposed the motion and submitted an affidavit requesting further discovery.
The district court (a court of first instance) granted summary judgment in favor of the defendants, holding that the privilege applied.
Messina filed a motion to vacate the judgment pursuant to Federal Rule of Civil Procedure 59(e), which the district court denied.
Messina (appellant) appealed the district court's orders to the U.S. Court of Appeals for the D.C. Circuit, where Krakower and his firm were the appellees.

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Issue:

Does the absolute judicial proceedings privilege protect an attorney from a defamation claim for allegedly defamatory statements made in a pre-litigation settlement demand letter sent on behalf of a client to an opposing party?

Opinions:

Majority - Circuit Judge Garland

Yes. The absolute judicial proceedings privilege protects an attorney from liability for defamation for statements made in a pre-litigation demand letter when litigation is seriously contemplated and the statements relate to the potential proceeding. The court adopted the Restatement (Second) of Torts § 586, which establishes a two-part test: (1) the statement must be made preliminary to or in the course of a judicial proceeding, and (2) it must have some relation to the proceeding. The court found Krakower's letter met the first requirement because it explicitly threatened litigation if a settlement was not reached, demonstrating that a lawsuit was under serious consideration. The letter met the second requirement because the allegedly defamatory statements—concerning Messina's management of the company—were directly related to the subject matter of the threatened lawsuit. The court also held that sending the letter to Chaim Kalfon did not defeat the privilege, as he was identified as a mediator with a direct interest in the potential settlement discussions.

Analysis:

This decision reinforces the broad scope of the absolute judicial proceedings privilege for attorneys under District of Columbia law. It clarifies that the privilege extends beyond formal court filings to include pre-litigation communications like demand letters, provided litigation is genuinely contemplated. By protecting even strongly worded and allegedly false statements, the ruling promotes a policy of allowing attorneys the 'utmost freedom' to advocate for their clients and facilitate candid settlement discussions without fear of retaliatory defamation suits. This precedent solidifies the power of demand letters as a tool in legal disputes and makes it significantly more difficult for recipients of such letters to succeed in defamation claims against the sending attorney.

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