Helena Chem. Co. v. Uribe

281 P.3d 237

2012 -NMSC- 021

HELENA CHEMICAL COMPANY, Plaintiff–Respondent,

v.PAMELA URIBE and LINDA THOMAS, individually and as representative of THOMAS & WAN, L.L.P., and THOMAS & WAN, L.L.P., Defendants–Petitioners.andHELENA CHEMICAL COMPANY, Plaintiff–Petitioner,

v.PAMELA URIBE and LINDA THOMAS, individually and as representative of THOMAS & WAN, L.L.P., and THOMAS & WAN, L.L.P., Defendants–Respondents.

Nos. 32,985, 32,987.

Supreme Court of New Mexico.

June 28, 2012.

Freedman, Boyd, Hollander, Goldberg, Ives & Duncan, P.A., Sara K. Berger, Law Office of Jack Brant, P.C., John M. Brant, Rodey, Dickason, Sloan, Akin & Robb, P.A., Charles K. Purcell, Albuquerque, NM, for Petitioners.

The Simons Law Firm, L.L.P., Frank M. Bond, Faith Lesley Kalman Reyes, Santa Fe, NM, Jackson Walker, L.L.P., Robert L. Soza, Jr., Elena P. Villaseñor, San Antonio, TX, for Respondent.

OPINION

CHÁVEZ, Justice.

{1} This case concerns the scope of the absolute privilege that grants immunity to litigants and their attorneys from being sued for defamation based on public statements they make about a judicial proceeding either before and/or after the judicial proceeding is filed. The specific issues in this case are whether (1) pre-litigation statements made by an attorney to prospective clients, in the presence of the press, regarding a potential mass-tort lawsuit, and (2) statements made directly to the press by an attorney or a party, after such a lawsuit is filed, that repeat or explain the allegations of the complaint, are absolutely privileged, thus barring a lawsuit for defamation. The district court found in the affirmative on these issues and granted summary judgment to the defendants in this defamation lawsuit. The Court of Appeals reversed the summary judgment, holding that the absolute privilege doctrine does not apply to statements made either before or after a complaint is filed when the statements are made in the presence of the press. Helena Chem. Co. v. Uribe, 2011–NMCA–060, ¶¶ 21–28, 30, 149 N.M. 789, 255 P.3d 367.

{2} We hold that the absolute privilege doctrine applies to pre-litigation statements made by attorneys in the presence of the press, if (1) the speaker is seriously and in good faith contemplating class action or mass-tort litigation at the time the statement is made, (2) the statement is reasonably related to the proposed litigation, (3) the attorney has a client or identifiable prospective client at the time the statement is made, and (4) the statement is made while the attorney is acting in the capacity of counsel or prospective counsel. These statements are absolutely privileged because the use of the press to educate the public about a potential good-faith class action or mass-tort lawsuit and/or to identify additional litigants is reasonably related to the judicial proceeding. We also hold that statements made by litigants or their attorneys to the press after the lawsuit has been filed are absolutely privileged if the statements are a repetition or an explanation of the allegations in the pleading.

{3} The pre-litigation statements at issue in this case were made (1) when a mass-tort lawsuit was seriously and in good faith being contemplated, and (2) with the objectives of investigating the merits of potential litigation and identifying for the community those members who may have had a good-faith basis to pursue the litigation. These objectives were reasonably related to the contemplated judicial proceeding. In addition, the statements were made when attorney Linda Thomas (Thomas) had identifiable prospective clients in Mesquite, New Mexico and were made while Thomas was acting in her capacity as prospective counsel. We also conclude that the post-filing statements are absolutely privileged because the statements either repeated or explained some of the allegations in the mass-tort complaint. Therefore, all of the statements are absolutely privileged and the district court was correct to grant summary judgment to the defendants. Accordingly, we reverse the Court of Appeals and affirm the district court.

I. BACKGROUND

{4} Helena Chemical Co. (Helena) is a crop protection company that owns and operates a facility in Mesquite, New Mexico. Helena sued the defendants, Thomas, her law firm, Thomas & Wan, L.L.P. (Thomas & Wan), and her client, Pamela Uribe (Ms. Uribe), for defamation. Helena alleges that Thomas made three statements and Ms. Uribe made one statement which defamed Helena.

{5} Thomas allegedly made two statements during a Mesquite community meeting in December 2007. Arturo Uribe (Mr. Uribe), the organizer of the Mesquite Community Action Committee, organized the public meeting because the Mesquite community was concerned about environmental and health hazards allegedly caused by toxic chemicals emanating from Helena's Mesquite plant. Mr. Uribe invited attorneys Thomas and Michelle Wan (Wan) to discuss the community concerns and possible litigation against Helena. Mr. Uribe invited Thomas and Wan because they had previously filed a toxic tort lawsuit against Helena in Texas for similar environmental and health hazards.

{6} Mr. Uribe also invited political blogger Heath Haussamen (Haussamen) to attend the public meeting in his capacity as a news reporter. Haussamen wrote and published a story about the public meeting on his website Heath Haussamen on New Mexico Politics.

{7} During this meeting, Thomas allegedly stated that “children are out here and they're playing in the yard, they're putting their hands in their mouth [sic], so they're really getting a dose that way. Kids are at a much greater risk.” Thomas also allegedly stated that Helena's actions appeared to be “pretty egregious.” Haussamen referred to one of Thomas's alleged defamatory statements, “that Helena's actions in Mesquite appeared to be ‘pretty egregious,’ ” in his background discussion of the proposed lawsuit.

{8} Thomas & Wan filed a lawsuit in Santa Fe County, New Mexico against Helena ten months after the public meeting on behalf of the Uribes and the other residents of Mesquite. The day after the lawsuit was filed, Thomas held a press conference in Mesquite to discuss the fact that the lawsuit had been filed. Thomas allegedly made a third defamatory statement during this press conference when she stated that “[t]he underground water has been contaminated.” Ms. Uribe also spoke during the press conference, describing her children's medical issues as “upper respiratory problems, pneumonia and bad allergies, [and] bloody noses.”

{9} Helena filed suit against Thomas, the Uribes, and Thomas & Wan (hereinafter referred to collectively as Thomas and Uribe) for defamation in Las Cruces, New Mexico. Thomas and Uribe filed motions for summary judgment, asserting that Helena's defamation lawsuit is barred as a matter of law based on the absolute privilege doctrine because their statements were made in the course of contemplated or pending litigation and were related to the judicial proceeding. The district court granted their motions for summary judgment, and Helena appealed to the Court of Appeals.

{10} The Court of Appeals acknowledged that (1) Thomas's statements during the public meeting were made when the community and Thomas “in good faith contemplated and gave serious consideration to initiating a judicial proceeding,” Helena Chem. Co., 2011–NMCA–060, ¶ 18, 149 N.M. 789, 255 P.3d 367, and (2) the news reporters were invited to the public meeting and to the press conference “with the desire to inform the public through the news media about the residents' environmental and health concerns and activities related to Helena, if not also to inform the public that a judicial proceeding was contemplated or initiated,” id. ¶ 20. However, the Court of Appeals reversed the district court's grant of a summary judgment, concluding that the statements were not absolutely privileged because they were made in the presence of the press, who did not have a relationship to or interest in the judicial proceeding. Id. ¶ 33. The rationale for the Court of Appeals' holding was that the statements to the media “did not serve the purpose of the judicial proceeding, enhance its function, or legitimately achieve its objects,” nor did the statements “assist attorneys in investigating claims or in fully presenting claims in court”; rather, the statements “could have taint [ed] prospective jurors.” Id. ¶ 31. Therefore, “use of the news media was unnecessary and excessive.” Id. We granted both petitions for writ of certiorari that were filed in this case, and for the reasons that follow, reverse the Court of Appeals and affirm the district court.

II. THE LAW OF ABSOLUTE PRIVILEGE

{11} We review motions for summary judgment and the question of whether a privilege exists de novo. See Cable v. Wells Fargo Bank N.M., N.A. (In re Cable Family Trust), 2010–NMSC–017, ¶ 9, 148 N.M. 127, 231 P.3d 108 (applying this standard to motions for summary judgment); Gregory Rockhouse Ranch, L.L.C. v. Glenn's Water Well Serv., Inc., 2008–NMCA–101, ¶¶ 16, 18, 144 N.M. 690, 191 P.3d 548 (reviewing de novo the applicability of absolute privilege). Because substantive law is the filter through which we analyze motions for summary judgment, we first analyze the substantive law in New Mexico regarding absolute privilege.

{12} The Court of Appeals is the only appellate court in New Mexico, until today, to address the absolute privilege doctrine. In Romero v. Prince, 85 N.M. 474, 476–77, 513 P.2d 717, 719–20 (Ct.App.1973), the Court of Appeals followed Restatement of Torts § 586 (1938) (now codified as Restatement (Second) of Torts § 586 (1977)), which states:

An attorney at law is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding in which he [or she] participates as counsel, if it has some...