On April 25, 2025, Justice Cohen of the New York County Commercial Division issued a decision in Landau v. DGital Media, LLC, 2025 NY Slip Op. 31476(U), holding that defamation claims were barred by the litigation privilege, explaining:
Defendants bring a fourth counterclaim for commercial defamation and defamation per se based on multiple statements made by Plaintiffs in connection with this and prior litigation between the parties. Commercial defamation requires a false and defamatory statement of fact, of or concerning an existing business, that is published to a third party, and which causes damage to the reputation of that business. False factual allegations that tend to injure a party in their trade, business or profession are considered defamatory per se. Whether a statement is actionable as defamation is a matter of law.
The allegedly defamatory statements contained in the complaints in this action and the First Action are immune from liability if such words and writings are material and pertinent to the questions involved. Defendants argue that portions of the complaint are defamatory and irrelevant to the fraud claim. While these portions of the complaint do not appear to be especially relevant (nor especially defamatory), they do relate to Defendants’ dealings with Vox Media, which held SB Nation among its podcast properties. As the statements are not irrelevant, the Court agrees with Plaintiffs that the statements in the two complaints are immune.
Defendants also take issue with Plaintiffs’ circulation of copies of the complaints to industry participants via email, as well as a handwritten letter and two voicemails. Circulating the complaints is protected by the litigation privilege, and the messages in the body of the emails are not defamatory. Following dismissal of the First Action, Landau mailed a copy of the First Action Complaint to an industry participant along with a handwritten letter, stating “‘Winter is coming’ Pudgy Boy won’t be laughing!…We know money was diverted by we need the details…I always knew he was capable of this”. While the statement regarding diversion of money approaches a statement of fact, the Court concludes that the reasonable reader would have believed that this is likely an opinion when read in context with the copy of the complaint and the qualification that “we need the details.” Landau’s alleged voicemail statements, “look out for the UPS, it’s an eye opener” and “No one’s ever hit a walk off homerun against me my entire career, and [CEO] Spencer [Brown] won’t either[,]” are likewise nonactionable, as they are not statements of fact. Further, statements made in anticipation of good faith litigation are privileged. The audience and date of the communications are irrelevant: the privilege may be lost only where a defendant proves that the statements were not pertinent to a good faith anticipated litigation. Accordingly, summary judgment is granted to Plaintiffs on the counterclaim for defamation.
(Internal quotations and citations omitted).