• January 10, 2013

A few years ago, I posed the following question and answer on Minnesota Litigator:

If a Minnesota litigator (that is, NOT “Minnesota Litigator,” but just any old Minnesota litigator) files a malicious complaint — that is, a formal legal complaint in court including knowingly false and damaging statements — can she be successfully sued for defamation? Probably not (assuming the statement has “reference and relation to the subject matter of the action”).

Absolute immunity for defamatory statements made by participants in the course of a judicial proceeding dates back at least to the sixteenth century, the Minnesota Supreme Court has pointed out.

I followed up with the question: What if Minnesota Litigator then publishes the Minnesota litigator’s false, damaging, and malicious complaint?  Can Minnesota Litigator be successfully sued for defamation?   Probably not. (Substantial repetition of an absolutely privileged statement does not trigger liability).

Note I give myself wiggle room: “Probably not.”  I would have thought that a law professor’s article reciting allegations in a complaint in a law review article would be safe from a claim for defamation but, then again…

Professor Zachary Kramer published “Of Meat and Manhood” in the Washington University Law Review and he devoted some of that article on allegations in the complaint of Ryan Pacifico against a former employer due to alleged acts by his supervisor Robert Catalanello.

Prof. Kramer described Pacifico’s allegations against Catalanello from Pacifico’s complaint brought in New York state court.  Summarizing Kramer’s description of Pacifico’s allegations: Catalanello was alleged to have relentlessly taunted and insulted Pacifico, mocking Pacifico for being a vegetarian and drawing an association between Pacifico’s choice not to eat meat and Pacifico’s sexuality.

Now Catalanello (represented by a New Jersey senior litigator, Thomas J. Cafferty) is suing Prof. Kramer (and the Washington University) for Prof. Kramer’s description of the allegations made by Pacifico in Prof. Kramer’s scholarly discussion of sex discrimination and gender stereo-typing.

How many people knew of Mr. Pacifico’s allegations before Mr. Catalanello brought this complaint and republished them across the world-wide web?  (It is not as if ANYONE reads law review articles, of course.  Seriously.) So Catalanello (and his lawyer) have taken obscure allegedly damaging words and essentially broadcast them to a far larger audience to protect Catalenello’s good name?

It seems to me that the glaring vulnerability in Catalanello’s complaint against Prof. Kramer and Wash U is Paragraph 17:

Defendants wrote and published the statements of and concerning Plaintiff negligently and/or maliciously and/or with knowledge of their falsity or a high degree of awareness of their probable falsity.

What do I know?  Maybe Mr. Pacifico and Prof. Kramer are in cahoots and have undertaken a campaign to destroy the reputation of a completely innocent man.

I am betting, however, that this case falls in a category which seems to be recently ever-increasing — people who sue for defamation and who might be more damaged by their lawsuits than by the underlying supposed wrongs.  (Closer to home, see Ventura?  See McKee?)

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