LawyersUSA

A state anti-SLAPP law bars a fired employee's defamation claim against an employer and its attorney for a letter to customers warning that the employee had stolen its customer list and was going to be sued, the California Court of Appeal has ruled.

The employee was accused of misappropriating customer lists from a security systems company and soliciting those customers to start his own competing business.

After he was fired, the employer's attorney sent out letters to its customers referencing a not-yet-filed lawsuit against the employee. The letter also described the alleged misappropriation and warned customers that doing business with the fired employee could involve them in the litigation.

Four months later, the employer filed suit. The employee then filed a cross-complaint for defamation based on the letter.

The attorney moved to strike the cross-complaint, claiming the letter was constitutionally protected petitioning activity under a state anti-SLAPP statute.

The employee argued the statute didn't apply because the letter was written before the lawsuit was filed against him and was sent to non-parties to the anticipated litigation.

The court disagreed.

"[C]ommunications in connection with anticipated litigation are considered to be 'under consideration or review by a . . . judicial body.' …

"Accordingly, although litigation may not have commenced, if a statement 'concerns the subject of the dispute' and is made 'in anticipation of litigation 'contemplated in good faith and under serious consideration,' … then the statement may be petitioning activity protected by [the statute]," the court said.

Here, the employer and its attorney "were contemplating litigation against [the employee] seriously and in good faith when the [l]etter was written."

California Court of Appeal, 2nd District. Neville v. Chudacoff, No. B198253. March 12, 2008. Lawyers USA No. 9939450. Click here for the full text of this opinion.