North Carolina Lawyers Weekly
By Nicholas A. Hurston
Where a claimant’s defamation suit was dismissed with a warning that further frivolous pleadings might justify sanctions, her subsequently filed claims based on new conduct were not frivolous and did not warrant sanctions.
The 4th U.S. Circuit Court of Appeals reversed the Eastern District of Virginia’s dismissal of the subsequent complaint and vacated the sanctions imposed on the plaintiff and her attorney.
“[W]hen the same cast of characters, accusing each other of making defamatory statements about some of the same historical events, came before the district court in this case, the parties’ litigation history appears to have played a significant role in the court’s reaction, causing the court to devalue the fact that [plaintiff’s] second complaint presented claims based on new, distinct facts,” Judge Paul V. Niemeyer wrote.
The district court erred by finding that absolute privilege rendered the complaint frivolous with “no chance of success.”
Niemeyer’s April 5 opinion, Lokhova v. Halper (VLW 022-2-084), was joined by Judges G. Steven Agee and Albert Diaz.
‘Contentious litigation history’
In May 2019, Russian-born author and academic Svetlana Lokhova sued Stefan A. Halper, a “veteran political operative,” for defamation in a 73-page complaint that Niemeyer characterized as acrimonious, unprofessional and excessively long.
Lokhova claimed Halper was the source of accusations that she was a Russian spy having an affair with Gen. Michael Flynn in furtherance of her mission, according to the opinion.
Halper moved to dismiss the complaint as untimely. He also asserted that the complaint was filed in bad faith and moved for sanctions against Lokhova and her attorney, Steven Biss.
The district court dismissed the complaint. Rather than imposing sanctions, it warned Biss that filing any further inappropriate or frivolous pleadings might warrant sanctions.
Ten months later, Biss filed another complaint for Lokhova, this time claiming that Halper and his attorney contacted publishers of Lokhova’s then-forthcoming book with the sole purpose of causing her book contract to be cancelled. Lokhova demanded $5 million for defamation and tortious interference.
Biss attached to the complaint two letters Halper delivered to Lokhova’s publishers, which she alleged made numerous false statements about her. These letters accused the publishers of defaming him in their marketing materials for Lokhova’s book and requested a public retraction.
According to Lokhova, the publishers were motivated by Halper to cancel her contract despite already having thousands of online preorders and a reasonable expectation to sell more than 500,000 copies.
Halper immediately moved for sanctions against Lokhova and Biss. He acknowledged sending the letters, but claimed they were absolutely privileged. Thus, the complaint was frivolous.
The Eastern District of Virginia agreed. It dismissed the complaint in May 2021, and ordered that Lakhova and Biss were jointly and severally liable for sanctions in the amount of $33,875.
When Lokhova and Biss appealed, Halper claimed the appeal was frivolous and requested sanctions before the Fourth Circuit. Lokhova and Biss retorted that Halper’s sanctions request was itself frivolous and sanctionable.
Waiver
Halper argued that Biss failed to perfect his own appeal of the sanctions because he was not explicitly identified as an appellant on the notice of appeal. Alternatively, he claimed Biss waived his arguments by not making them in the opening brief.
Niemeyer was unpersuaded, writing that while “Biss is not explicitly identified as an appellant […] the substance of each notice made it objectively clear that both he and Lokhova were appealing.”
The court further held that the substance of the plaintiffs’ opening brief addressed sanctions as they applied to both Lokhova and to Biss, with two pages devoted entirely to Biss.
Defamation
Lokhova and Biss first argued on appeal that the litigation privilege asserted by Halper applied only to defamation, not to tortious interference.
Niemeyer agreed, noting a 2021 decision from the Virginia Supreme Court — Givago Growth, LLC v. iTech AG, LLC — which upheld “preexisting principles” that absolute privilege doesn’t apply to non-defamation torts in Virginia, including tortious interference.
Halper argued that the privilege did apply to Lokhova’s tortious interference claim because it had a “shared basis” with and was “inextricably tied” to her defamation claim.
The court rejected that contention.
“This argument … fails to recognize the distinct elements for the two torts under Virginia law, which make clear that pre-litigation demand letters, even if not defamatory, could constitute tortious interference,” the opinion pointed out.
Privilege
Lokhova and Biss next asserted that Halper failed to meet the requirements to qualify for the privilege under Mansfield v. Bernabei.
They claimed Halper did not “genuinely contemplate the filing of a lawsuit,” adding that his intent was exposed because he never threatened legal action in his letters to the publishers and he never filed suit when Lokhova self-published her book.
Niemeyer noted that, while Lokhova and Biss made several credible claims about the true purpose behind Halper’s letters, his intent in sending the letters is ultimately a question of fact that can’t be resolved on the “thin record” before the court.
“Only after discovery and the development of a fuller record can it be determined whether Halper is able to show that the letters qualify for absolute privilege under Virginia law as (1) ‘made preliminary to a proposed proceeding,’ (2) ‘related to a proceeding contemplated in good faith and under serious consideration,’ and (3) ‘disclosed to interested persons,’” the judge wrote. “Because the district court’s conclusion that the complaint was frivolous depended on Halper’s proving these elements to show the applicability to the letters of the absolute privilege as an affirmative defense … the court erred in reaching that conclusion, as it should not have determined that the intent element of the privilege was satisfied on the basis of such a limited record.”
Niemeyer added that, “At bottom, it is clear that the district court could not have concluded, based on the record before it, that Lokhova’s complaint ‘had no chance of success.’”
Current Status
On April 19, Halper petitioned the Fourth Circuit for a panel rehearing or rehearing en banc, which stayed the mandate of the court pending its ruling.
Attorneys for the parties did not respond to a request for comment.
