By Liz Hartsel

I frequently hear defendants express a desire to sue plaintiffs for defamation due to the allegations made against them in a lawsuit. At first glance, this seems reasonable: when a plaintiff makes false statements, a defendant’s reputation can suffer, which is exactly what a defamation claim aims to address.

However, the recent decision in the Blake Lively/Justin Baldoni case illustrates that such claims are not actionable. The court dismissed Justin Baldoni’s $400 million lawsuit against Blake Lively, Ryan Reynolds, and the New York Times. This dismissal included the “Wayfarer Parties'” defamation claim, which alleged that Lively, Reynolds, and the New York Times spread a false narrative accusing Baldoni of sexual misconduct toward Lively and that the Wayfarer Parties engaged in a smear campaign to damage her reputation.

The defamation claim against Lively contained fundamental weaknesses because it relied entirely on allegations Lively made in her complaint to the California Civil Rights Department. The “litigation privilege” shields such allegations absolutely, regardless of their truth or falsity.

This privilege serves to encourage unfettered court access for litigants and attorneys. It ensures that parties, their counsel, and witnesses can approach the courts without fear of subsequent harassment through derivative tort actions. The protection extends beyond defamation to cover other torts, like tortious interference with contract, provided the harm flows from the allegedly defamatory statement.

Key Takeaway: Defendants should exercise caution before asserting claims against plaintiffs based solely on the contents of a complaint. Losing such claims during motion practice may result in paying the other side’s attorneys’ fees.