April 01, 2012

Scruples: When Pled Allegations Hit the Newspapers

Normally, allegations in a pleading cannot support a vaiable defamation claim.

Michael Downey

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Did you read it?” Paradox asked.

“Read what?” Ethox queried.

“The news story on the Jay-Kaye litigation,” Paradox responded, placing a printout in front of Ethox.

Picking up the printout, Ethox scanned the headline. Paradox did not wait for a response. “They butchered Jay,” Paradox continued. “The story quotes Kaye’s amended complaint, which claims Jay stole from the partnership to support a drug habit. Jay is raging and wants us to file a defamation suit against Kaye and Kaye’s lawyer, Nemesis. Can you prepare the complaint?”

“Well,” Ethox equivocated, “this may not make the best defamation lawsuit.”

“What do you mean?” Paradox pressed. “Everything in the news story is false. It relates to Jay’s business. And Nemesis put it all in the amended complaint. So what was said will be easy to prove.”

“That’s just it,” Ethox replied. “Normally, allegations in a pleading cannot support a viable defamation claim.”

“You’re kidding!” Paradox snorted.

“Unfortunately, I am not,” Ethox answered. “Most states recognize a litigation privilege that provides an affirmative defense protecting lawyers, parties, and others involved in litigation from being sued for defamation for what is said in the litigation.”


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