The California Court of Appeal just published a decision that might rock the legal world. The case, Dickinson v. Cosby,  2017 DJDAR 11083 (Nov. 21, 2017), centered a demand letter sent by attorney Martin D. Singer on behalf of Bill Cosby, and a subsequent press release, also penned by Singer. The case arose out of the following facts:

After several women had publicly accused Bill Cosby of drugging and raping them, Janice Dickinson, a reality television personality and former model, revealed to Entertainment Tonight in 2014 that Cosby had also raped her. According to Dickinson, the two had dinner together in 1982, during which she complained of menstrual cramps. Cosby offered her a pill he said would help with her discomfort. The pill was actually a narcotic, which heavily sedated her. Later that night, Cosby allegedly raped her vaginally and anally.

According to Dickinson, she did not report the rape or the drugging because of fear of retaliation by Cosby, who was “a wealthy, powerful celebrity.” However, she told some close friends about the incident at the time. She also told her publisher, HarperCollins when she wrote a book in 2002. The publisher’s legal department refused to allow her to discuss the rape in her book, and she ended up writing that she “rebuffed Cosby’s sexual advances and retreated to her room.”

After the Entertainment Tonight interview aired, the media contacted Cosby’s representatives, seeking Cosby’s comment. Singer, on Cosby’s behalf, thereafter sent almost identical demand letters to Good Morning America and several other media outlets. The letter started with, “We are litigation counsel to Bill Cosby.” It called Dickinson’s claims “false and outlandish,” and stated that the “story is fabricated and is an outrageous defamatory lie,” and that her own book confirmed it. The letter stated that “[p]rior to broadcasting any interview of Ms. Dickinson concerning my client, you should contact HarperCollins to confirm that Ms. Dickinson is lying.”

Finally, Singer wrote: “If you proceed with the planned segment with Janice Dickinson and if you disseminate her Story when you can check the facts with independent sources at HarperCollins who will provide you with facts demonstrating that the Story is false and fabricated, you will be acting recklessly and with Constitutional malice.”

Singer also issued a press release, which was headed “STATEMENT OF MARTIN D. SINGER, ATTORNEY FOR BILL COSBY.” The press release begins: “Janice Dickinson’s story accusing Bill Cosby of rape is a lie. The release goes on to state many of the things that were in the demand letter.

Seven months later, after demanding (and not receiving) a retraction, Dickinson sued Cosby in superior court for defamation, false light, and intentional infliction of emotional distress, claiming, among other things, that Cosby had drugged and raped her, and that Cosby “publicly branded her a liar,” therefore “revictimizing” her.

Cosby filed an anti-SLAPP motion, in which he argued that the demand letter was protected by the litigation privilege under California Civil Code Section 47. He also claimed that both the demand letter and the press release were protected “opinion.”

While the anti-SLAPP motion was pending, Dickinson filed an amended complaint, adding Singer as a defendant. Cosby and Singer moved to strike the amended complaint on the ground that the anti-SLAPP statute prohibits the filing of an amended complaint while an anti-SLAPP motion is pending. The motion was granted. The trial court also granted the anti-SLAPP motion, but only as to the demand letter (not the press release), ruling that the letter was sent in contemplation of litigation. Dickinson appealed both orders.

The case went to a different division of the Court of Appeal than the one that had decided Malin v. Singer, 217 Cal. App. 4th 1283 (2013), in which the trial court had ruled that a demand letter by the same attorney constituted criminal extortion, and the Court of Appeal overturned the order denying an anti-SLAPP motion, based upon litigation privilege. The Division 8 panel reversed the Dickinson trial court on both orders.

Regarding the amended complaint, the court determined that the rule precluding amendment after an anti-SLAPP motion is filed did not apply to the addition of a new party who did not file the motion.

Regarding the anti-SLAPP motion, the court first noted that press releases can never be protected by the privilege. The court acknowledged that a prelitigation demand letter may be privileged, but only “when it relates to litigation that is contemplated in good faith and under serious consideration,” and that it is not privileged if “it is actually made as a means of inducing settlement of a claim, and not in good faith contemplation of a lawsuit.” The court stated that: “[w]hether litigation was contemplated in good faith and under serious consideration are questions of fact …. The good faith inquiry is not a question of whether the statement was made with a good faith belief in its truth, but rather, whether the statement was made with a good faith intention to bring a lawsuit.”

The court ultimately ruled that, because the demand letter was only sent to media outlets that had not run the story, and because Cosby ultimately never sued any of the recipients of the letter, there was an “inference that the demand letter was not sent in connection with litigation contemplated in good faith and under serious consideration.” The court found that the letter was a “bluff … with no intention to go through with the threat of litigation if they were uncowed. Hence the letters were, in the words of our Supreme Court, ‘hollow threats of litigation.’”

The court therefore held that Dickinson had made a prima facie showing that the litigation privilege did not apply, and that, therefore, she had satisfied the second prong of the anti-SLAPP statute.

Although the court’s ruling in that regard did not directly bind Singer, it is highly doubtful that Singer’s anticipated anti-SLAPP motion (on remand) will fare any better. Either the letter is privileged or it is not. If it is not privileged vis-a-vis Cosby, it is highly doubtful that any litigation privilege will attach to Singer — and this is dangerous for all lawyers.

I cannot even count the number of demand letters — just for defamation — that I have written in my career. In every one, I have stated that the story or anticipated story was false. Whether or not I stated that the source was lying, that was certainly implied. In only a small fraction of those cases did we actually commence litigation.

Several questions come to mind as a result of this case: How is it to be determined if a demand letter is a just “bluff,” or truly “in contemplation of litigation,” and how does a court or jury make that decision? Is a lawyer (and a client) now at risk of being sued for defamation every time such a letter is sent without following up with a lawsuit? Doesn’t that encourage — in fact almost mandate — that more lawsuits be filed. Isn’t the goal of the courts (and society) to reduce the number of lawsuits filed? How does a lawyer protect him/herself in such a situation without revealing privileged communications with his/her client?

The ramifications of this case — though no doubt based more on who the players were and the nature of the claims than anything else — are potentially devastating, particularly to attorneys, who write letters like this every day.

Edwin F. McPherson is a partner at McPherson LLP in Century City.