Deutsche Bank AG v. Vik ( 2022 )

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DEUTSCHE BANK AG v. CAROLINE VIK ET AL.
(AC 44586)
Elgo, Clark and Lavine, Js.
Syllabus
The plaintiff bank sought to recover damages for alleged tortious interfer-
ence with business expectancy and violation of the Connecticut Unfair
Trade Practices Act (CUTPA) (§ 42-110a et seq.), for the defendants’
actions in connection with the plaintiff’s attempt to collect amounts
owed to it by S Co., which the plaintiff alleged was a shell company
controlled by the defendant A. The plaintiff sought to enforce a judgment
it previously obtained against S Co. in a different jurisdiction and alleged
that the defendants deliberately interfered with a court-ordered sale
of certain assets to satisfy that judgment by fabricating a document
purporting to grant the defendant C the right of first refusal to acquire
the asset, shares in a software company. The trial court denied the
defendants’ motion to dismiss the plaintiff’s complaint, in which they
claimed that the court lacked subject matter jurisdiction because the
plaintiff’s allegations arose out of communications made and actions
taken in past judicial proceedings and were thus barred by the litigation
privilege. On the defendants’ appeal to this court, held:
1. The trial court erred in denying the defendants’ motion to dismiss the
plaintiff’s claim for tortious interference with business expectancy, as
the claim was predicated on communications made during and relevant
to prior judicial or quasi-judicial proceedings: multiple paragraphs of
the plaintiff’s complaint included allegations concerning the defendants’
participation in or commencement of legal actions or appeals, and the
fact that the plaintiff characterized the defendants’ alleged legal actions
as conduct that was meritless, frivolous or an abuse of the legal system
did not bring the conduct within the limited exception to the litigation
privilege, as the cause of action of tortious interference does not chal-
lenge the purpose of the underlying litigation procedure; moreover, the
plaintiff could have pursued other remedies to address the defendants’
claimed abuses, including an abuse of process or vexatious litigation
claim, but chose not to do so.
2. The trial court erred in denying the defendants’ motion to dismiss the
plaintiff’s claim asserting a violation of CUTPA; the plaintiff’s claim,
premised largely on the defendants’ alleged communications and con-
duct in prior judicial proceedings, including the alleged introduction of
false and/or fabricated evidence and the alleged filing of false and/or
frivolous actions and appeals, closely resembled CUTPA claims that
courts in Connecticut consistently have held are barred by the litiga-
tion privilege.
3. Although the plaintiff’s complaint included allegations unrelated to com-
munications in the course of judicial proceedings, the litigation privilege
barred those claims, as the complaint was permeated with allegations
pertaining to the defendants’ communications and participation in prior
judicial proceedings, which were both central to the plaintiff’s claims and
inextricably intertwined with the allegations of extrajudicial conduct.
Argued February 14—officially released August 23, 2022
Procedural History
Action to recover damages for, inter alia, violation
of the Connecticut Unfair Trade Practices Act, and for
other relief, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the court, Hon.
Edward T. Krumeich II, judge trial referee, denied the
defendants’ motion to dismiss, and the defendants
appealed to this court. Reversed; judgment directed.
Monte E. Frank, with whom was Johanna S. Katz,
for the appellants (defendants).
Thomas D. Goldberg, with whom were John W. Cer-
reta and Jennifer M. Palmer, and, on the brief, Michael
Schoeneberger, David G. Januszewski, and Sheila C.
Ramesh, pro hoc vice, for the appellee (plaintiff).
Opinion
CLARK, J. The defendants, Alexander Vik (Alexan-
der) and Caroline Vik (Caroline), appeal from the judg-
ment of the trial court denying their motion to dismiss,
in which they asserted that the claims brought by the
plaintiff, Deutsche Bank AG, were barred by the litiga-
tion privilege. On appeal, the defendants claim that the
court improperly concluded that the litigation privilege
does not bar the plaintiff’s claims of tortious interfer-
ence with business expectancy and violation of the
Connecticut Unfair Trade Practices Act (CUTPA), Gen-
eral Statutes § 42-110a et seq. We agree and, accord-
ingly, reverse the judgment of the trial court.
For purposes of this appeal, we take the facts as
alleged in the complaint as true and construe them in
a manner most favorable to the pleader. See Tyler v.
Tatoian, 164 Conn. App. 82, 84, 137 A.3d 801, cert.
denied, 321 Conn. 908, 135 A.3d 710 (2016). The plain-
tiff’s complaint is comprised of 173 paragraphs of allega-
tions relating to its long running attempt to collect on
amounts owed to it by nonparty Sebastian Holdings, Inc.
(SHI). The plaintiff alleges that SHI is a shell company,
which until 2015, was solely owned and controlled by
Alexander. Despite transferring his shares in SHI and
resigning from its board of directors, Alexander contin-
ues to dominate and control SHI today. Since 2008,
when SHI first became indebted to the plaintiff, Alexan-
der, with other entities and individuals acting on his
behalf, allegedly has employed various tactics to
obstruct the plaintiff’s collection efforts. These include,
inter alia, concealing assets, fabricating documents, and
undertaking fraudulent transfers. The plaintiff alleges
that, in 2013, the Commercial Court, Queen’s Bench
Division of the High Court of Justice of England and
Wales (English court) rendered a judgment ordering
SHI to pay amounts due to the plaintiff (English judg-
ment) and finding that Alexander had fabricated evi-
dence and lied under oath. With interest, the plaintiff
alleges that the amount of the English judgment now
exceeds $300 million.
At all times, SHI has claimed that it lacks sufficient
assets to satisfy the English judgment. The plaintiff
alleges that, since 2013, it has vigorously sought to
enforce the English judgment by undertaking a global
enforcement effort, including the filing of actions in
Connecticut, New York, Delaware, Pennsylvania, the
United Kingdom, and Norway. Certain of these enforce-
ment actions sought judgments declaring Alexander
personally liable for the English judgment as SHI’s alter
ego. The complaints in those actions also detail Alexan-
der’s long history of shuffling and concealing assets
from the plaintiff.
The plaintiff alleges that, in 2008, SHI found itself
facing hundreds of millions of dollars in losses arising
from, among other things, risky trading on margin in
the foreign exchange market. As a result of these losses,
SHI faced margin calls from its prime broker, the plain-
tiff. Knowing that SHI faced large losses, the plaintiff
alleges that, in October, 2008, Alexander caused SHI to
transfer approximately $1 billion worth of assets out
of SHI. As a result of the October, 2008 transfers, the
plaintiff alleges that Alexander falsely claimed that SHI
had insufficient assets, leaving the plaintiff with an
unpaid debt of more than $235 million. The present
action concerns one such asset: shares in a Norwegian
software company, Confirmit AS (Confirmit). To that
end, the plaintiff alleges that, in 2008, Alexander wrong-
fully caused SHI to transfer the shares in Confirmit to
his personal account in order to keep those shares
beyond the plaintiff’s reach.
The plaintiff further alleges that the English court
found that the shares of Confirmit were one portion of
the approximately $1 billion of assets that Alexander
drained from SHI to avoid paying the plaintiff the
amount it is owed. The plaintiff claims that, in 2015,
Alexander again purported to transfer those same
shares, this time to his father, Erik Martin Vik (Erik),
while the shares were the subject of litigation with the
plaintiff. The plaintiff alleges that it sought an execution
lien on the Confirmit shares in 2016. Following a lengthy
legal battle, which included a full trial and appeals to
the Norwegian Supreme Court, the plaintiff alleges that
the Oslo Court of Probate, Bankruptcy, and Enforce-
ment (Oslo enforcement court) invalidated both the
2008 and 2015 transfers of Confirmit shares. As a result,
the shares reverted to SHI and were thus subject to
enforcement. In April, 2016, the plaintiff filed a petition
with the Oslo enforcement court to execute a lien on
the Confirmit shares, which was ultimately granted by
the court. On March 8, 2017, the plaintiff filed a petition
seeking a forced sale of the Confirmit shares. Following
a two year postponement due to the pendency of
appeals regarding the execution lien, the plaintiff sub-
mitted a request to continue the enforcement process
of the Confirmit shares on May 27, 2019. The plaintiff
alleges that, on June 12, 2019, the enforcement officer
issued a decision to commence the sale, and, on July
8, 2019, named nonparty ABG Sundal Collier ASA (ABG)
as the sales assistant for the forced sale. Rather than
allow the sale of Confirmit shares to proceed, the plain-
tiff alleges that the defendants and related parties
engaged in a series of maneuvers designed to inject
doubt and uncertainty into the sales process. The plain-
tiff alleges that these tactics included manufacturing
false evidence, submitting a bad faith bid by Alexander
to acquire Confirmit, and, importantly for present pur-
poses, commencing frivolous legal actions and appeals.
The plaintiff alleges that, among the most egregious
of these tactics, is the defendants’ fabrication of a docu-
ment purporting to grant Alexander’s daughter, Caro-
line, a right of first refusal to acquire the Confirmit
shares (ROFR). The plaintiff alleges that, upon informa-
tion and belief, the ROFR was forged and backdated
to enable the defendants to interfere with the court-
ordered sale of Confirmit. With this allegedly false docu-
ment in hand, the plaintiff alleges that Caroline pro-
ceeded to commence litigation in the United States
District Court for the District of Connecticut against
ABG seeking to enjoin the Confirmit sale midway
through the bidding process. The District Court granted
an ex parte temporary restraining order (TRO), and
subsequently, with the consent of the parties, kept the
TRO in place until December 6, 2019, pending a decision
on Caroline’s application for a preliminary injunction.
The plaintiff alleges that, ‘‘[d]uring the proceedings in
the District Court, [Alexander] submitted two affidavits
in support of [Caroline’s] application for an injunction.
Those affidavits describe how [Alexander] personally
attempted to participate in the Confirmit sales process
and state that he had contacted ABG so that he could
be considered a potential buyer in the process.’’ After
the District Court denied her application for a prelimi-
nary injunction on December 4, 2019, the plaintiff
alleges that Caroline voluntarily dismissed her ‘‘frivo-
lous action.’’ The plaintiff alleges that two days later,
on December 6, 2019, Caroline filed a separate but sub-
stantially similar petition for a preliminary injunction
with the Oslo enforcement court, asking the court to
stop any sale of the Confirmit shares that did not respect
the ROFR agreement.
In support of its tortious interference with business
expectancy claim, the plaintiff incorporates by refer-
ence the aforementioned allegations and further
alleges, inter alia, that the defendants brought ‘‘frivo-
lous,’’ ‘‘meritless,’’ or ‘‘baseless’’ legal claims or appeals
in an effort to undermine or reverse the sale of Confirmit
sales. The plaintiff further alleges that the English judg-
ment formed a business relationship between the plain-
tiff and SHI insofar as the English court determined
that SHI owed the plaintiff $235,646,355. The plaintiff
alleges that it has sought to realize this business expec-
tation by enforcing the English judgment in various
jurisdictions, including in Connecticut. The plaintiff
alleges that Caroline’s lawsuits in Connecticut federal
court and Norway were ‘‘timed specifically to interfere
with the forced sale of the Confirmit shares and the
business expectations of [the plaintiff]. . . . The exe-
cution and attempted enforcement of [Caroline’s] sham
ROFR on which she based her requests for an injunction
was for the sole purpose of interfering with the forced
sale of Confirmit, and had no proper purpose or justifi-
cation.’’ Among other allegations, the plaintiff alleges
that ‘‘[Alexander] is the decision maker behind other
nonparties’ actions relating to Confirmit. This includes
the continuous stream of meritless legal action that
[Erik] . . . on behalf of SHI . . . ha[s] filed in Nor-
way.’’ The plaintiff alleges that ‘‘[the] interference with
the business of Confirmit, whether through manipulat-
ing the board of directors or prolonging the enforce-
ment lien with adverse effects, is cumulative, and the
ongoing legal battles are similarly detrimental.’’ The
plaintiff alleges that, as a result of the defendants’ inten-
tional interference with the plaintiff’s business relation-
ships and expectations, the market value of the Con-
firmit shares dropped from $150 million to $65 million.
In support of its CUTPA claim, the plaintiff incorpo-
rates all of its allegations in support of its tortious
interference claim and, additionally, alleges that SHI’s
persistent refusal to pay the English judgment has
forced the plaintiff to pursue multiple actions across
various jurisdictions to enforce it. The plaintiff alleges
that the defendants engaged in unfair methods of com-
petition and unfair and deceptive acts to interfere with
the sale of the Confirmit shares by filing for injunctions
in both Connecticut and Norway on the false premise
that Caroline genuinely sought to exercise her pur-
ported ROFR. The plaintiff further alleges that Alexan-
der attempted to use the bidding process for the Con-
firmit shares to gather confidential information about
the sales process and had no intention of following
through on a legitimate bid. It alleges that ‘‘[Alexander]
and his associates have targeted Confirmit, interfering
with its business through the intentional prolonging of
the enforcement lien and uncertainty of the company’s
ownership as well as through their continued and
obstructionist litigation.’’ The plaintiff alleges that the
defendants’ ‘‘conduct . . . constitutes a reckless indif-
ference to and/or an intentional and wanton violation
of [the plaintiff’s] rights.’’
On October 22, 2020, in response to the plaintiff’s
complaint in the present case, the defendants filed a
motion to dismiss the action on the basis of the litigation
privilege. The defendants argued, inter alia, that the
court lacked subject matter jurisdiction because the
plaintiff’s allegations arise out of communications made
and actions taken in past judicial proceedings and are
thus barred by the litigation privilege. On December 18,
2020, the plaintiff filed its opposition to the defendants’
motion, arguing that there is no colorable basis for the
court to dismiss the complaint in its entirety and that
the motion should be denied.
On March 11, 2021, the court issued its memorandum
of decision denying the defendants’ motion to dismiss.
It concluded, inter alia, ‘‘[t]hat part of the alleged mis-
conduct included filing sham lawsuits and meritless
appeals does not immunize [the] defendants’ alleged
conduct because the claims themselves are decidedly
different than a defamation claim. The claims do not
concern how the cases were litigated, or the words
used in communications by litigants or advocates, but
that the sham cases themselves were commenced and
maintained as part of a multifaceted scheme to avoid
enforcement of the judgment. These claims are not akin
to a defamation or fraud claim that focuses on commu-
nication of false information in the prosecution or
defense of a lawsuit, but rather they allege improper
use of the judicial system for purposes not intended to
further the course of justice but rather to pervert the
course of justice.’’ In short, the court stated that the
‘‘underlying purpose of absolute immunity does not
apply just as equally to the claims alleged as it does to
the tort of defamation; the claims alleged are not more
like defamation than vexatious litigation, but rather
share more with vexatious litigation, malicious prosecu-
tion and abuse of process as a perversion of justice in
support of objectives largely based on conduct outside
the courtroom designed to achieve aims not consistent
or achievable with lawful judicial remedies.’’ This
appeal followed.
The defendants argue that the trial court erroneously
concluded that the litigation privilege does not bar the
plaintiff’s tortious interference and CUTPA claims.
They contend that the court (1) misapplied binding
authority that makes clear that the plaintiff’s claims are
subject to the protection of the litigation privilege, (2)
erroneously determined that the plaintiff’s allegations
fell within the abuse of process exception to the privi-
lege, despite the plaintiff not pleading an abuse of pro-
cess claim, and (3) failed to recognize that the public
policy behind the litigation privilege applies with equal
force to the allegations in the plaintiff’s complaint,
regardless of the plaintiff’s allegations that the past
litigations were ‘‘meritless.’’ For the reasons that we
discuss herein, we agree with the defendants.1
We first set forth our standard of review. We review
the trial court’s ultimate legal conclusion and its
resulting denial of dismissal de novo. See Rioux v.
Barry, 283 Conn. 338, 343, 927 A.2d 304 (2007). In con-
ducting this review, ‘‘we take the facts to be those
alleged in the complaint, construing them in a manner
most favorable to the pleader.’’ Beecher v. Mohegan
Tribe of Indians of Connecticut, 282 Conn. 130, 132,
918 A.2d 880 (2007). We are mindful that the doctrine
of absolute immunity, also referred to as the litigation
privilege, ‘‘implicates the court’s subject matter jurisdic-
tion’’; Dorfman v. Smith, 342 Conn. 582, 594, 271 A.3d
53 (2022); and that ‘‘every presumption favoring juris-
diction should be indulged.’’ (Internal quotation marks
omitted.) Tyler v. Tatoian, supra, 164 Conn. App. 87.
Turning to the merits of the appeal, we begin with a
general overview of the litigation privilege. ‘‘Connecti-
cut has long recognized the litigation privilege.’’ Simms
v. Seaman, 308 Conn. 523, 536, 69 A.3d 880 (2013). In
recent years, our Supreme Court has detailed the his-
tory of that privilege; see, e.g., id., 531–45; and has
applied it in a number of contexts. See, e.g., Dorfman
v. Smith, supra, 342 Conn. 585; Scholz v. Epstein, 341
Conn. 1, 3, 266 A.3d 127 (2021); MacDermid, Inc. v.
Leonetti, 310 Conn. 616, 617, 79 A.3d 60 (2013); Rioux
v. Barry, supra, 283 Conn. 340; Hopkins v. O’Connor,
282 Conn. 821, 823, 925 A.2d 1030 (2007). The litigation
privilege was first recognized in response to the need
to bar persons accused of crimes from suing their accus-
ers for defamation. See Bruno v. Travelers Cos., 172
Conn. App. 717, 725, 161 A.3d 630 (2017). It has since
been applied to other causes of action, including claims
brought pursuant to CUTPA and claims of intentional
interference with contractual or beneficial relations.
See, e.g., Dorfman v. Smith, supra, 585 (litigation privi-
lege applicable to plaintiff’s claims for breach of implied
covenant of good faith, negligent infliction of emotional
distress, and violation of CUTPA premised on business
practice of filing false discovery responses); Rioux v.
Barry, supra, 350 (‘‘absolute immunity does bar the
plaintiff’s claim of intentional interference with contrac-
tual or beneficial relations’’).
In its most basic form, the litigation privilege provides
that ‘‘communications uttered or published in the
course of judicial proceedings are absolutely privileged
so long as they are in some way pertinent to the subject
of the controversy.’’ (Internal quotation marks omitted.)
Hopkins v. O’Connor, supra, 282 Conn. 830–31. This
includes ‘‘statements made in pleadings or other docu-
ments prepared in connection with a court proceeding.’’
(Internal quotation marks omitted.) Scholz v. Epstein,
supra, 341 Conn. 28–29.
‘‘[T]he purpose of affording absolute immunity to
those who provide information in connection with judi-
cial and quasi-judicial proceedings is that in certain
situations the public interest in having people speak
freely outweighs the risk that individuals will occasion-
ally abuse the privilege by making false and malicious
statements.’’ (Internal quotation marks omitted.) Mac-
Dermid, Inc. v. Leonetti, supra, 310 Conn. 627. ‘‘[T]he
possibility of incurring the costs and inconvenience
associated with defending a [retaliatory] suit might well
deter a citizen with a legitimate grievance from filing
a complaint.’’ (Internal quotation marks omitted.) Craig
v. Stafford Construction, Inc., 271 Conn. 78, 95, 856
A.2d 372 (2004). ‘‘Put simply, absolute immunity fur-
thers the public policy of encouraging participation and
candor in judicial and quasi-judicial proceedings. This
objective would be thwarted if those persons whom
the common-law doctrine was intended to protect nev-
ertheless faced the threat of suit. In this regard, the
purpose of the absolute immunity afforded participants
in judicial and quasi-judicial proceedings is the same
as the purpose of the sovereign immunity enjoyed by
the state.’’ Chadha v. Charlotte Hungerford Hospital,
272 Conn. 776, 787, 865 A.2d 1163 (2005). As such,
‘‘courts have recognized absolute immunity as a defense
in certain retaliatory civil actions in order to remove
this disincentive and thus encourage citizens to come
forward with complaints or to testify.’’ Rioux v. Barry,
supra, 283 Conn. 344.
The litigation privilege is not without limits, however.
Our Supreme Court has held that certain causes of
action are not barred by the litigation privilege. See,
e.g., Simms v. Seaman, supra, 308 Conn. 541–43, 546
(discussing claims of vexatious litigation and abuse of
process). What generally distinguishes these causes of
action from those to which the privilege attaches is
that they ‘‘prohibit conduct that subverts the underlying
purpose of the judicial process. Specifically, these
causes of action prevent, or hold an individual liable
for . . . the improper use of the judicial process for
an illegitimate purpose, namely, to inflict injury upon
another individual in the form of unfounded actions.’’
MacDermid, Inc. v. Leonetti, supra, 310 Conn. 631.
These causes of action are treated differently in part
because of ‘‘restraints built into [them] by virtue of
[their] stringent requirements.’’2 Rioux v. Barry, supra,283 Conn. 347–48; see also Scholz v. Epstein, supra,
341 Conn. 21 (‘‘[t]he plaintiff’s statutory theft claim . . .
is distinguishable from a vexatious litigation claim
because the elements of the claim do not provide any
safeguards to prevent inappropriate retaliatory litiga-
tion’’). For example, one element of a vexatious litiga-
tion claim is that the suit must have terminated in the
plaintiff’s favor.3 See Scholz v. Epstein, supra, 21.
‘‘Relevant to any determination of whether policy
considerations support applying absolute immunity to
any particular cause of action, [our Supreme Court] in
Simms identified the following factors: (1) whether the
alleged conduct subverts the underlying purpose of a
judicial proceeding, in a similar way to how conduct
constituting abuse of process and vexatious litigation
does; (2) whether the alleged conduct is similar in
essential respects to defamatory statements, inasmuch
as a defamation action is barred by the privilege; and
(3) whether the alleged conduct may be adequately
addressed by other available remedies.’’4 Id., 10–11. ‘‘In
examining the competing interests and public policies
at stake, our Supreme Court has focused on the need
to ensure candor from all participants in the judicial
process.’’ Tyler v. Tatoian, supra, 164 Conn. App. 90.
I
With these principles in mind, we begin by addressing
the defendants’ contention that the court improperly
concluded that the litigation privilege did not bar the
plaintiff’s tortious interference with business expec-
tancy claim against the defendants. The defendants
argue, inter alia, that the trial court failed to follow
binding Supreme Court precedent that makes clear that
the litigation privilege bars such claims. We agree.
As this court has observed: ‘‘Our Supreme Court has
held that absolute immunity bars claims based on tor-
tious interference with business and contractual rela-
tionships when the alleged conduct occurred during
the course of a judicial or quasi-judicial proceeding.’’
Law Offices of Frank N. Peluso, P.C. v. Rendahl, 170
Conn. App. 364, 367, 154 A.3d 584 (2017), citing Rioux
v. Barry, supra, 283 Conn. 351. In undertaking a careful
balancing of the competing interests and public policies
at stake, our Supreme Court in Rioux stated that the
elements of a tortious interference claim ‘‘simply do
not have the same stringency as those that are the
hallmark of the elements of a claim for vexatious litiga-
tion. For this reason, insofar as the balancing that
applies, this tort is more like defamation than vexatious
litigation. Therefore, the same balancing test applies to
it as applies to defamatory statements: if made in the
course of a judicial or quasi-judicial proceeding, they
are absolutely immune.’’ Rioux v. Barry, supra, 351.
In light of our Supreme Court’s holding in Rioux, it
is clear that the trial court’s judgment cannot stand.
The trial court’s conclusion that the litigation privilege
does not apply to the plaintiff’s tortious interference
claim because it is more ‘‘akin to claims for vexatious
litigation, abuse of process and malicious prosecution’’
is in direct conflict with our Supreme Court’s decision
in Rioux. In balancing the competing interests at stake,
our Supreme Court in Rioux concluded that absolute
immunity applies to such torts if the allegations support-
ing the claim are based on communications that took
place in the course of a judicial or quasi-judicial pro-
ceeding. Rioux v. Barry, supra, 283 Conn. 351.
Because the litigation privilege is applicable to claims
of tortious interference with business expectations if
the claim is premised on communications or statements
made in the course of prior judicial or quasi-judicial
proceedings, the principal question for the trial court
was whether the allegedly privileged communications
or statements were in fact made in the course of judicial
or quasi-judicial proceedings and relevant to the subject
of the controversy. See Hopkins v. O’Connor, supra,
282 Conn. 838 (if ‘‘the communications are uttered or
published in the course of judicial proceedings, even if
they are published falsely and maliciously, they never-
theless are absolutely privileged provided they are perti-
nent to the subject of the controversy’’). On appeal, the
plaintiff argues that its claims do not arise out of the
statements or communications made by the defendants
in litigation because it is challenging the defendants’
acts of filing certain actions and appeals. The plaintiff
thus contends that its claims are based on the defen-
dants’ alleged wrongful conduct of filing frivolous and
meritless actions and appeals, not any communications
or statements in a judicial proceeding.
The defendants counter that the plaintiff has alleged
that they commenced ‘‘frivolous actions,’’ filed ‘‘mer-
itless appeals,’’ and manufactured ‘‘false evidence.’’
They note that the plaintiff alleges that Caroline’s filing
of an action seeking a temporary restraining order and
preliminary injunction resulted in an interference with
the business relations between the plaintiff and SHI.
The defendants argue that these allegations strike at
the very heart of the communications and actions
before the Oslo enforcement court in Norway, the Borg-
arting Court of Appeal, the Supreme Court of Norway,
and the United States District Court for the District of
Connecticut. In their view, there can be no question
that these actions fall within the scope of the litigation
privilege. We agree with the defendants.
At least 30 paragraphs of the plaintiff’s 173 paragraph
complaint include allegations concerning the defen-
dants’ participation in or commencement of legal
actions or appeals. Although the plaintiff argues that
the act of filing an action or an appeal is not a communi-
cation in connection with a court proceeding, we can
think of no communication that is more clearly pro-
tected by the litigation privilege than the filing of a legal
action. The filing of a legal action, by its very nature,
is a communicative act. See, e.g., Scholz v. Epstein,
supra, 341 Conn. 28–29 (privilege applies to ‘‘every step
of the proceeding until [its] final disposition . . .
including to statements made in pleadings or other
documents prepared in connection with a court pro-
ceeding’’ (citation omitted; emphasis added; internal
quotation marks omitted)); Rioux v. Barry, supra, 283
Conn. 344 (‘‘courts have recognized absolute immunity
as a defense in certain retaliatory civil actions in order
to remove this disincentive and thus encourage citizens
to come forward with complaints or to testify’’ (empha-
sis added)).
Moreover, our case law does not speak about the
privilege solely in terms of communications, but also
in terms of conduct in the course of judicial or quasi-
judicial proceedings. See Simms v. Seaman, supra, 308
Conn. 568–69 (‘‘[w]e therefore conclude that the Appel-
late Court properly determined that attorneys are pro-
tected by the litigation privilege against claims of fraud
for their conduct during judicial proceedings’’ (empha-
sis added)); Hopkins v. O’Connor, supra, 282 Conn. 830(‘‘[w]hether particular conduct is by its nature part of
or in furtherance of a judicial proceeding for the pur-
poses of triggering absolute immunity, however,
depends on the particular facts and circumstances of
each case’’ (emphasis added)).
In support of its claim that the litigation privilege
applies only to communications and not conduct, the
plaintiff points to our Supreme Court’s decision in
MacDermid, Inc. v. Leonetti, supra, 310 Conn. 616. In
that case, the court concluded that absolute immunity
did not bar a claim of employer retaliation pursuant to
General Statutes § 31-290a5 based on the employer’s
filing of a lawsuit against the employee. Id., 617–18.
The plaintiff seems to argue that, on the basis of this
holding, the litigation privilege does not apply to the
act of filing a lawsuit. That is not an accurate reading
of MacDermid, Inc. The narrow issue in MacDermid,
Inc., was whether absolute immunity applied to an
alleged violation of § 31-290a predicated on an employ-
er’s act of filing a lawsuit against an employee for the
employee’s exercise of his or her rights under Connecti-
cut’s workers’ compensation law. Id., 625–26. In holding
that the litigation privilege did not apply, the court con-
cluded that applying ‘‘absolute immunity under [those]
circumstances would serve only to incentivize retalia-
tory litigation and discourage employees from exercis-
ing their rights under the [Workers’ Compensation]
[A]ct, a situation the legislature clearly intended to pre-
vent when it enacted § 31-290a.’’ Id., 640. Nothing in
MacDermid, Inc., suggests that the act of filing a lawsuit
in other contexts is beyond the scope of the litigation
privilege.
The plaintiff further contends that its complaint ‘‘does
not allege harm based on statements or communica-
tions uttered in the course of those proceedings, but
for the wrongful conduct of abusing the judicial system
to drive down the Confirmit shares’ sale price.’’ The fact
that the plaintiff characterizes the defendants’ alleged
legal actions as ‘‘frivolous’’ or ‘‘meritless’’ or as ‘‘abusing
the legal system’’ does not mean that it is beyond the
litigation privilege. As this court explained in Tyler,
‘‘[t]he fact that the plaintiffs characterized the defen-
dant’s allegedly fraudulent conduct as an abuse of the
legal system does not mean that it falls within the lim-
ited exception’’ to the litigation privilege. Tyler v.
Tatoian, supra, 164 Conn. App. 93. Our Supreme Court
expanded on this in Dorfman, explaining that,
‘‘[a]lthough the plaintiff’s complaint contains allega-
tions that the defendant, through its litigation conduct,
improperly used and abused the judicial process, unless
the plaintiff’s cause of action challenges the purpose
of the litigation or litigation procedure, these allegations
do not suffice to establish an improper use of the judi-
cial system. A claim of abuse of process may be prem-
ised on the improper use of a particular judicial proce-
dure. But allegations of the improper use of judicial
procedure do not satisfy the requirement that the plain-
tiff’s cause of action must itself challenge the purpose
of the underlying litigation or litigation procedure.’’
(Emphasis added.) Dorfman v. Smith, supra, 342 Conn.
598–99. Otherwise, ‘‘any plaintiff could pierce the litiga-
tion privilege with any cause of action by merely includ-
ing allegations that a defendant’s conduct constituted
an abuse of the judicial system.’’6 Id., 599.
To reiterate, the fact that the plaintiff characterized
the defendants’ alleged conduct as meritless or frivo-
lous or an abuse of the legal system does not bring it
within the limited exception to the privilege. Unlike
claims of vexatious litigation or abuse of process, the
cause of action of tortious interference with business
expectancy does not challenge the purpose of an under-
lying judicial proceeding.7 Indeed, our Supreme Court
in Rioux already applied the relevant factors to this
cause of action and concluded that absolute immunity
bars claims based on tortious interference with busi-
ness and contractual relationships.
Lastly, we note that there are other remedies avail-
able to address claimed abuses like these. See Dorfman
v. Smith, supra, 342 Conn. 619 (‘‘there are other reme-
dies available to deter the alleged conduct’’). The plain-
tiff, for example, could have brought an abuse of pro-
cess or vexatious litigation claim to remedy or obtain
recourse for the behavior of which it complains. See
DeLaurentis v. New Haven, 220 Conn. 225, 264, 597
A.2d 807 (1991) (‘‘Parties or their counsel who behave
outrageously are subject to punishment for contempt
of the court. Parties and their counsel who abuse the
process by bringing unfounded actions for personal
motives are subject to civil liability for vexatious suit
or abuse of process.’’). The plaintiff chose not to do so.8
In sum, because the plaintiff’s tortious interference
with business expectancy claim is predicated on com-
munications made during and relevant to prior judicial
or quasi-judicial proceedings, the plaintiff’s claim is
barred by the litigation privilege.
II
We turn next to the plaintiff’s count asserting a viola-
tion of CUTPA. In support of its CUTPA claim, the
plaintiff incorporates by reference the same allegations
it makes in support of its tortious interference with
business expectancy claim and further alleges that,
among other things, the ‘‘defendants engaged in unfair
methods of competition and unfair and deceptive acts
to interfere with this sale of the Confirmit shares. They
did so by filing for injunctions in both Connecticut and
Norway on the false premise that [Caroline] genuinely
sought to exercise her purported [ROFR].’’ The plaintiff
further alleges, inter alia, that ‘‘[Alexander] and his asso-
ciates have targeted Confirmit, interfering with its busi-
ness through the intentional prolonging of the enforce-
ment lien and uncertainty of the company’s ownership
as well as through their continued obstructionist litiga-
tion.’’
The parties make substantially similar arguments
regarding this claim as they do with respect to the
tortious interference claim. In particular, the defen-
dants argue that the litigation privilege bars the plain-
tiff’s CUTPA claim because it is premised on communi-
cations and conduct in prior litigation. Citing to
numerous cases, the defendants argue that our courts
uniformly have held that the litigation privilege applies
to CUTPA claims based on communications made and
actions taken during the course of past litigation. The
plaintiff counters that the trial court properly found
that the litigation privilege does not bar the plaintiff’s
claim because the claims do not arise out of the content
of statements or communications by the defendants in
litigation. For largely the same reasons that we con-
cluded in part I of this opinion that the litigation privi-
lege bars the plaintiff’s tortious interference claim, we
conclude that the plaintiff’s CUTPA claim also is barred
by the privilege.
Courts in Connecticut consistently have applied the
litigation privilege to CUTPA claims based on communi-
cations made during and relevant to a prior judicial
proceeding. See, e.g., Dorfman v. Smith, supra, 342
Conn. 618 (CUTPA claim based on violation of Connect-
icut Unfair Insurance Practices Act barred by litigation
privilege); Simms v. Seaman, supra, 308 Conn. 561–62
(discussing federal case law that consistently has held
that CUTPA claims premised on false communications
made during and relevant to underlying judicial pro-
ceeding are barred by litigation privilege); Bruno v.
Travelers Cos., supra, 172 Conn. App. 727–29 (CUTPA
claim against insurance companies was barred by litiga-
tion privilege); Tyler v. Tatoian, supra, 164 Conn. App.
86–87, 93–94 (CUTPA claim against attorney for com-
munications made in course of prior judicial proceeding
was barred by litigation privilege).9
Most recently, in Dorfman v. Smith, supra, 342 Conn.
582,10 our Supreme Court considered whether a viola-
tion of CUTPA, based on a violation of the Connecticut
Unfair Insurance Practices Act (CUIPA), General Stat-
utes § 38a-815 et seq., was subject to the litigation privi-
lege. The plaintiff argued that absolute immunity would
undermine the legislative intent of CUIPA, which the
plaintiff argued was to hold insurers accountable for
misrepresenting facts relating to coverage issues. Id.,
617. The court observed that there was minimal case
law regarding the litigation privilege as it pertains to a
claim brought under CUIPA, but pointed to the wealth
of case law regarding the applicability of the litigation
privilege to CUTPA claims. Id., 618. In light of that
precedent, the court held that ‘‘the litigation privilege
bars CUTPA claims, like the claim at issue, premised
solely on general allegations of intentionally false dis-
covery responses . . . .’’ Id., 619. It further stated: ‘‘We
recognize that the legislature intended to prohibit cer-
tain unfair and deceptive business practices by enacting
CUTPA and CUIPA, but the plaintiff has not cited, and
we have not discovered, any provision of these statutes
that explicitly abrogates the common-law litigation priv-
ilege, which, historically, has been applied to false and
malicious statements made during and relevant to judi-
cial proceedings.’’ Id., 620. The court qualified its hold-
ing by stating that ‘‘[t]his does not mean, however, that
a defendant enjoys absolute immunity from all CUTPA
claims under the litigation privilege, even those prem-
ised on a violation of CUIPA,’’ leaving open the possibil-
ity that other CUTPA claims may not be barred by
absolute immunity under the privilege. Id.
On the basis of our review of the specific allegations
advanced in support of the plaintiff’s CUTPA claim, in
addition to our case law, including our Supreme Court’s
recent decision in Dorfman, we conclude that absolute
immunity bars the plaintiff’s CUTPA claim. In Dorfman,
our Supreme Court focused its analysis on whether
the ‘‘legislature intended to abrogate a party’s absolute
immunity from CUTPA claims based on a business prac-
tice of filing false discovery responses.’’ Id., 618. In
discovering no provision in CUTPA or CUIPA ‘‘that
explicitly abrogate[d] the common-law litigation privi-
lege’’ with respect to false and malicious statements
made during and relevant to judicial proceedings, the
court concluded that the litigation privilege barred the
plaintiff’s CUTPA-CUIPA claim. Id., 620. Although the
court left open the possibility that the litigation privilege
may not bar other CUTPA claims, it did so in the context
of its consideration of whether a particular set of allega-
tions in support of a CUTPA claim might constitute a
claim for which the legislature intended to abrogate the
privilege. See id.
Here, while making general public policy arguments
for why the litigation privilege should not apply in this
instance, the plaintiff does not argue that the legislature
intended to abrogate the litigation privilege for the type
of CUTPA claim that it has brought. The plaintiff’s
CUTPA claim in this case, which is premised largely on
the defendants’ alleged communications and conduct
in prior judicial proceedings, including the alleged intro-
duction of false and/or fabricated evidence and the
alleged filing of false and/or frivolous actions and
appeals, closely resembles the CUTPA claims that our
courts routinely have held are barred by the litigation
privilege. See, e.g., id., 618; Bruno v. Travelers Cos.,
supra, 172 Conn. App. 727–29; Tyler v. Tatoian, supra,
164 Conn. App. 86–87, 93–94; see also footnote 9 of this
opinion. As such, we discern no appropriate basis for
treating the plaintiff’s CUTPA claim in this case differ-
ently than courts consistently have treated CUTPA
claims in other cases, especially when other available
remedies exist to deter the alleged conduct. See part I
of this opinion.
Because we conclude that the litigation privilege is
applicable to the plaintiff’s CUTPA claim in this case,
and because the plaintiff’s CUTPA claim is premised in
large part on communications made during and relevant
to prior judicial proceedings; see part I of this opinion;
we conclude that it, too, is barred by the litigation
privilege.
III
As a final matter, the plaintiff argues that the litigation
privilege does not bar its claims because they include
allegations unrelated to communications made in the
course of judicial proceedings. Although the complaint
does include allegations of extrajudicial conduct, the
complaint is permeated with allegations pertaining to
the defendants’ communications and participation in
prior judicial proceedings, which are both central to
the plaintiff’s claims and inextricably intertwined with
the allegations of extrajudicial conduct. Under these
circumstances, we conclude that the plaintiff’s claims
are barred by the litigation privilege. To hold otherwise
would permit parties to proceed with claims that other-
wise are barred by the litigation privilege simply by
adding allegations concerning conduct that is outside
the privilege. Such a result would significantly under-
mine the objective the privilege was designed to pro-
mote.11 See Chadha v. Charlotte Hungerford Hospital,
supra, 272 Conn. 786 (like sovereign immunity, doctrine
of absolute immunity ‘‘protects against suit as well
as liability—in effect, against having to litigate at all’’
(emphasis added; internal quotation marks omitted)).
The judgment is reversed and the case is remanded
with direction to grant the defendants’ motion to dis-
miss the plaintiff’s complaint in its entirety.
In this opinion the other judges concurred.
1
The plaintiff claims that this court should dismiss the appeal for want
of jurisdiction because the defendants have not offered any basis for dismiss-
ing the action as a whole. They contend that the defendants’ arguments
‘‘refer to only 7 of the complaint’s 173 paragraphs.’’ We are not persuaded.
The defendants’ motion to dismiss clearly pertains to the entire complaint,
as they requested that the court ‘‘[dismiss] the case in its entirety or strik[e]
the offending allegations.’’ The crux of the defendants’ argument is that the
plaintiff’s complaint improperly centers around prior litigation and they are
thus absolutely immune from suit. The defendants have set forth a colorable
claim of absolute immunity. See Chadha v. Charlotte Hungerford Hospital,
272 Conn. 776, 787, 865 A.2d 1163 (2005) (like colorable claim of sovereign
immunity, to protect against threat of suit, colorable claim of absolute
immunity based on participation in judicial and quasi-judicial proceedings
gives rise to immediately appealable final judgment). As a result, there are
no grounds for dismissing the defendants’ appeal.
2
We note that a lack of built-in restraints by virtue of a cause of action’s
stringent requirements is not always dispositive of whether the litigation
privilege applies to a particular claim. See MacDermid, Inc. v. Leonetti,
supra, 310 Conn. 630–31 (absolute immunity did not bar claim of employer
retaliation). Nevertheless, whether a cause of action has built-in safeguards
that protect against inappropriate retaliatory litigation remains a factor. See
Scholz v. Epstein, supra, 341 Conn. 21 (‘‘[u]nlike a claim of vexatious litiga-
tion, a claim of statutory theft does not provide the same level of protection
against the chilling effects of a potential lawsuit’’ (footnote omitted)).
3
‘‘Vexatious litigation requires a plaintiff to establish that: (1) the previous
lawsuit or action was initiated or procured by the defendant against the
plaintiff; (2) the defendant acted with malice, primarily for a purpose other
than that of bringing an offender to justice; (3) the defendant acted without
probable cause; and (4) the proceeding terminated in the plaintiff’s favor.’’
Rioux v. Barry, supra, 283 Conn. 347.
4
These factors apply regardless of whether the action is against an attor-
ney, party opponent, or witness. See Dorfman v. Smith, supra, 342 Conn.
592 n.3.
5
General Statutes (Rev. to 2013) § 31-290a provides in relevant part: ‘‘(a)
No employer who is subject to the provisions of this chapter shall discharge,
or cause to be discharged, or in any manner discriminate against any
employee because the employee has filed a claim for workers’ compensation
benefits or otherwise exercised the rights afforded to him pursuant to the
provisions of this chapter.
‘‘(b) Any employee who is so discharged or discriminated against may
. . . (1) Bring a civil action in the superior court . . . for the reinstatement
of his previous job, payment of back wages and reestablishment of employee
benefits to which he would have otherwise been entitled if he had not been
discriminated against or discharged and any other damages caused by such
discrimination or discharge. The court may also award punitive damages.
Any employee who prevails in such a civil action shall be awarded reasonable
attorney’s fees and costs to be taxed by the court . . . .’’ See also MacDer-
mid, Inc. v. Leonetti, supra, 310 Conn. 617–18 n.1.
6
In Scholz, our Supreme Court further stated: ‘‘[T]o the extent the plaintiff
is arguing that he alleged in his complaint that the defendant improperly
used the courts, in that the defendant’s conduct in the underlying litigation
constituted an abuse of process, such an allegation is not sufficient to bar
the litigation privilege, but, rather, the plaintiff was required to, but did not,
set forth sufficient allegations to establish a cause of action for abuse of
process.’’ Scholz v. Epstein, supra, 341 Conn. 15 n.5.
7
It bears mentioning that many, if not the majority, of the plaintiff’s
allegations alleging frivolous or meritless litigation arise out of lawsuits
commenced by the plaintiff itself. The complained of litigation primarily
concerns the defendants’ conduct in defense of those lawsuits and the
prosecution of appeals. Thus, the majority of the allegations do not concern
the defendants’ use of the legal process against the plaintiffs in order to
accomplish a purpose for which it was not designed; rather, they largely
concern the defendant’s participation in litigation the plaintiff initiated.
8
At oral argument before this court, the plaintiff’s counsel argued that
the complaint set forth the necessary allegations to support an abuse of
process claim. A simple review of the plaintiff’s complaint, however, dis-
closes that it did not assert such a claim. The plaintiff’s two count complaint
clearly captions its claims ‘‘Tortious Interference with Business Expectancy’’
and ‘‘Violation of the Connecticut Unfair Trade Practices Act.’’
9
Connecticut federal courts similarly have concluded that the litigation
privilege bars CUTPA causes of actions that are premised on communica-
tions made during prior litigation. See, e.g., Bailey v. Interbay Funding,
LLC, Docket No. 3:17-CV-1457 (JCH), 2018 WL 1660553 (D. Conn. April 4,
2018); Weldon v. MTAG Services, LLC, Docket No. 3:16-CV-783 (JCH), 2017
WL 776648 (D. Conn. February 28, 2017); Costello v. Wells Fargo Bank
National Assn., Docket No. 16-CV-1706 (VAB), 2017 WL 3262157 (D. Conn.
July 31, 2017), aff’d, 739 Fed. Appx. 77 (2d Cir. 2018).
10
Dorfman was decided after oral argument in this appeal. Following oral
argument, both the plaintiff and the defendants filed notices of supplemental
authority pursuant to Practice Book § 67-10 on April 13, 2022.
11
Because the issue was not raised or decided below, we express no view
as to whether the complaint, in the absence of the offending allegations, is
sufficient to state claims for tortious interference with business expectancy
or a violation of CUTPA.