## Facts

- Karyne Messina and Susan Fontana were equal owners and co-presidents of Totally Italian.com, Inc. and developed management disputes by late 2002.
- Fontana retained attorney Daniel S. Krakower and his law firm to help resolve the dispute.
- Krakower sent Messina a letter describing Fontana’s complaints, stating he had “serious concerns about the propriety and legality” of Messina’s actions, and listing alleged misconduct (e.g., withholding information, unilateral leasing and banking actions, and control of internet accounts).
- The letter asserted the parties could not continue in business together, proposed a buyout mechanism, and warned that Fontana might commence legal proceedings and/or dissolution if the matter was not resolved.
- The letter set a deadline for response and indicated that absent a response Fontana would proceed accordingly.
- Krakower emailed a draft of the letter to Fontana and copied a businessman authorized by Fontana to negotiate.
- Messina filed a diversity defamation action (libel per se) against Krakower and his firm based on the letter.
- The district court granted summary judgment for defendants on the ground that the communications were protected by the judicial proceedings privilege.

## Issues

1. Whether the District of Columbia judicial proceedings privilege extends to an attorney’s pre-litigation letter written in serious contemplation of litigation and aimed at resolving a dispute.
2. Whether copying the letter to a third party involved in settlement negotiations removes the communication from the privilege.
3. Whether, if the privilege applies, it provides absolute immunity from defamation liability for the letter’s allegedly defamatory statements.

## Decision

- The D.C. Circuit affirmed summary judgment for Krakower and his law firm.
- The court held the judicial proceedings privilege applied to the pre-litigation letter because it was made in contemplation of judicial proceedings and sufficiently related to the anticipated litigation.
- The court held that sending the draft to an authorized negotiator did not defeat the privilege because the recipient had a substantial interest in the dispute-resolution process.
- As a result, defendants were absolutely immune from the defamation claim based on the letter.

## Legal Principles

- Under District of Columbia law, statements made in the course of, or preliminary to, a proposed judicial proceeding are privileged if they bear some relation to the subject matter of the contemplated or pending litigation.
- The privilege can apply before a complaint is filed when litigation is a realistic possibility and the communication is connected to the anticipated claims or defenses.
- The “relation” requirement is applied broadly; the statement need only have some reference to the dispute likely to be litigated.
- When the privilege applies in defamation actions, it is absolute, barring liability even if the statements are allegedly false or made with malice.
- Communications to persons with a substantial interest in the proceeding, including authorized agents assisting in negotiations, may remain within the privilege.

## Conclusion

The court held that an attorney’s pre-suit settlement demand letter describing alleged misconduct and threatening litigation is absolutely protected by the District of Columbia judicial proceedings privilege when written in serious contemplation of litigation, related to the prospective claims, and shared only with persons involved in resolving the dispute.


Messina v. Krakower, 439 F.3d 755 (D.C. Cir. 2006)