Robert Writt v. Shell Oil Company and Shell International, E&P, Inc. , 409 S.W.3d 59 ( 2013 )

Opinion issued June 25, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00201-CV
———————————
ROBERT WRITT, Appellant
V.
SHELL OIL COMPANY AND SHELL INTERNATIONAL, E&P, INC.,
Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2009-65221
OPINION
Appellant, Robert Writt, challenges the trial court’s rendition of summary
judgment in favor of appellees, Shell Oil Company and Shell International, E&P,
Inc. (collectively, “Shell”), in Writt’s suit against Shell for defamation. In two
issues, Writt contends that the trial court erred in granting Shell summary judgment
as Shell did not have an “absolute privilege,” or “immunity,” to make defamatory
statements about him to the United States Department of Justice (“DOJ”), he
presented evidence of the damages caused by Shell’s defamation, and damages are
presumed as a matter of law on his claim for defamation per se. 1
Introduction
Because the absolute privilege could possibly be used improperly as a
sword, rather than properly as a shield, Texas courts and the Restatement of the
Law on Torts have long distinguished between it, for communications made during
judicial and quasi-judicial proceedings, and the qualified, or conditional, privilege,
for communications made in the public interest.2 To extend the absolute privilege
to the circumstances of the instant case, where neither Shell nor Writt was a party
to an ongoing or proposed judicial or quasi-judicial proceeding at the time that
Shell made the complained-of statements, would have the very dangerous effect of
1
Shell has filed a motion for en banc reconsideration. See TEX. R. APP. P. 49.7.
The panel withdraws its February 14, 2013 opinions and substitutes these opinions
in their place.
2
See, e.g., Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex. 1987);
RESTATEMENT (SECOND) OF TORTS §§ 585–591 (1977) (discussing application of
absolute privilege); id. § 598 (discussing application of qualified, or conditional,
privilege).
2
actually discouraging parties from being truthful with law-enforcement agencies
and instead encourage them to deflect blame to others without fear of consequence.
The “immunity” conferred by the absolute privilege attaches only to a
“select number of situations which involve the administration of the functions of
the branches of government, such as statements made during legislative and
judicial proceedings.” 3 And a defendant is entitled to summary judgment on the
basis of the absolute privilege only if the evidence conclusively proves the
privilege’s application. 4
Here, as detailed below, Shell presented summary-judgment evidence that
the DOJ requested a forty-five minute meeting with Shell to discuss its business
dealings with another company. And, during the meeting, Shell, according to the
DOJ, agreed to “voluntarily investigate its business dealings” with the company
and provide the DOJ with certain documents and Shell’s “proposed
investigative plan.” Eighteen months later, Shell provided its investigative
report, which contains the complained-of statements about Writt, to the DOJ.
As noted by Shell, it was not until twenty months after it had given the
investigative report to the DOJ that the DOJ first “open[ed] a judicial proceeding
and file[d] a criminal information” against Shell. There simply is no evidence that
3
Hurlbut, 749 S.W.2d at 768.
4
Id.
3
a criminal case had been filed against Writt or Shell, or that a criminal prosecution
was actually being proposed against either Writt or Shell, at either the time the
DOJ first contacted Shell or when Shell submitted its report to the DOJ. Thus, we
conclude that the summary-judgment evidence does not conclusively establish the
applicability of the absolute privilege to the complained-of statements made by
Shell in its voluntarily-made investigative report to the DOJ. 5
However, given that a “sufficiently important public interest” may have
“require[d]” that Shell make the communication to the DOJ, whether solicited by
the DOJ or not, “to take action if the defamatory matter [were] true,” we conclude
that Shell enjoys the adequate protection of the conditional privilege as a
“Communication to One Who May Act in the Public Interest.” 6 As noted below,
the conditional privilege is “applicable when any recognized interest of the public
is in danger, including the interest in the prevention of crime and the apprehension
of criminals, the interest in the honest discharge of their duties by public officers,
and the interest in obtaining legislative relief from socially recognized evils.” 7
5
See id.
6
See RESTATEMENT (SECOND) OF TORTS § 598 (1977).
7
Id. § 598 cmt. d (emphasis added).
4
Accordingly, we reverse the judgment of the trial court and remand for
proceedings consistent with this opinion.8
Background
In his petition, Writt alleges that, as an employee of Shell, he was charged
with the responsibility of approving payments to contractors on certain Shell
projects in foreign countries, including Nigeria. During the course of his work,
Writt learned that certain Shell contractors were under investigation “by various
governmental agencies” for making and receiving illegal payments and one of
Shell’s vendors had pleaded guilty to violating the Foreign Corrupt Practices Act
(“FCPA”). 9 Writt further alleged that, in response to an informal inquiry to Shell
from the DOJ, Shell had “voluntarily” submitted to the DOJ a report in which Shell
“falsely accused him” of “engaging in unethical conduct” in connection with the
8
Shell also sought summary judgment on Writt’s defamation claim on the ground
that Writt presented no evidence of his damages. However, after Shell filed its
summary-judgment motion, Writt amended his petition to include a claim for
defamation per se. Shell did not file an additional or amended summary-judgment
motion to attack Writt’s defamation per se claim or the alleged damages arising
therefrom. As Shell recognizes in its appellees’ brief, damages for a claim for
defamation per se are presumed as a matter of law. See Knox v. Taylor, 992
S.W.2d 40, 60 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (“In the recovery
on a claim of defamation per se, the law presumes actual damages and no
independent proof of damages to reputation or of mental anguish is required.”).
Because Writt amended his petition after Shell filed its summary-judgment motion
and Shell did not separately attack the damages element of Writt’s defamation per
se claim, Shell, as stated in its appellees’ brief, has not addressed the damages
issue on appeal.
9
See 15 U.S.C. § 78dd-1 (2004).
5
payment of “bribes” and providing inconsistent statements during multiple
interviews conducted by Shell as part of its internal investigation. Writt asserted a
claim for defamation 10 against Shell for the allegedly false statements contained in
its report to the DOJ. Specifically, Writt alleged that Shell, in its report, falsely
stated that he had been involved in illegal conduct in a Shell Nigerian project by
recommending that Shell reimburse contractor payments he knew to be bribes and
failing to report illegal contractor conduct of which he was aware.
In its summary-judgment motion, Shell argued that because the statements
made in its report to the DOJ were “absolutely privileged,” they could not give rise
to a defamation claim. Shell asserted that federal regulations authorize the DOJ to
prosecute violations of the FCPA,11 it “agreed with the DOJ to undertake the
internal investigation,” it furnished the report to the DOJ “with the understanding
that the facts in the report would be used by the DOJ in determining whether or not
to prosecute Shell for FCPA violations,” and the report related to the DOJ
investigation.
10
Writt also asserted a claim against Shell for wrongful termination of his
employment, but Writt has not appealed the trial court’s adverse judgment entered
on the claim after a jury trial.
11
See 28 C.F.R. § 0.55(m)(4) (assigning enforcement of FCPA to Assistant Attorney
General, Criminal Division of DOJ).
6
In support of its summary-judgment motion, Shell attached a copy of a July
3, 2007 letter from Mark Mendelsohn of the Fraud Section of the DOJ’s Criminal
Division to Shell. In his letter, Mendelsohn stated in pertinent part:
It has come to our attention that [Shell] has engaged the services of
Panalpina, Inc. (“Panalpina”)[ 12] to provide freight forwarding and
other services in the United States and abroad, and that certain of
those services may violate the [FCPA]. The purpose of this letter is
to request a meeting with you to further discuss Shell’s engagement
of Panalpina. We anticipate this initial meeting will not take longer
than 45 minutes.
(Emphasis added.) Mendelsohn also made a “request” that, in advance of the
meeting, Shell “prepare and provide the Fraud Section a spreadsheet detailing in
what countries Shell has used the services of Panalpina” and “the total amount of
payments for such services for the past five years.”
Shell also attached to its motion the affidavit of Michael Fredette, Shell’s
Managing Counsel, who testified that, after receiving Mendelsohn’s letter, Shell
representatives met with the DOJ and Shell “agreed to conduct an internal
investigation into its dealings with Panalpina.” (Emphasis added.) Fredette further
testified:
I was one of the leaders of Shell’s internal investigation. The
investigative team was comprised of members of the Shell Legal
Department and Shell’s Business Integrity Department, and assisted
12
The record reflects that the DOJ had been investigating Panalpina for a significant
period of time prior to contacting Shell. The record also reflects that in February
2007, Shell’s contractor, Vetco Gray, pleaded guilty to violating the FCPA in
connection with payments made through Panalpina.
7
by outside counsel from Vinson & Elkins LLP and forensic
accountants from KPMG LLP.
Shell’s Business Integrity Department is staffed with attorneys and
former law enforcement officers, including former Federal Bureau
of Investigation agents.
The internal investigation began in August 2007, and culminated in
a written report submitted to the [DOJ] on or about February 5,
2009. Shell submitted the report to the [DOJ] with the
understanding that the report would be treated confidentially.
Shell agreed to conduct the internal investigation with the
understanding that it would ultimately report its finding to the
[DOJ] and that the [DOJ] would conduct its own investigation for
possible violations of the [FCPA] and other laws by Shell and/or its
employees.
(Emphasis added.)
Additionally, Shell attached to its summary-judgment motion a July 17,
2007 letter from Stacey K. Luck of the DOJ’s Fraud Section to Shell’s legal
counsel, C. Michael Buxton of Vinson & Elkins LLP. In the letter, Luck stated in
pertinent part:
Thank you and your client, [Shell], for meeting with us today. As
discussed, it is our understanding that Shell intends to voluntarily
investigate its business dealings with Panapina Inc. and all other
Panalpina subsidiaries and affiliates (collectively referred to as
“Panalpina”).
(Emphasis added.) Luck requested that “in conducting the investigation,” Shell
produce certain documents and information pertaining to the time period of June
2002 through June 2007. Luck also specifically requested that “[p]rior to initiating
your investigation” and the production of any documents, Shell provide the current
8
location of a number of individuals, including Writt, who had been associated with
a Shell project in Nigeria from January 1, 2004 to December 31, 2005. And Luck
requested Shell’s “proposed investigative plan,” including the “estimated volume
of documents implicated,” “number of individuals to be interviewed,” and
“proposed duration of the investigation.”
Finally, we note that Shell also attached to its motion, among other
documents, a copy of a September 4, 2008 Vinson & Elkins memorandum
regarding an “Overview on Robert Writt” and the February 5, 2009 investigative
report that Shell had provided to the DOJ. In the report submitted to the DOJ,
Shell set forth the basic background facts of the investigation, explained that the
DOJ had contacted Shell and met with its representatives regarding allegations of
criminal violations, and noted that Shell had “agreed to conduct an internal
investigation” and “work with the DOJ to establish an investigative plan.” It also
noted that the DOJ had requested that Shell “produce ten categories of documents
and other information in connection with its investigation.” Shell then made
findings and recommendations to deter future “potential violations” of Shell’s
business principles, recommended disciplinary action for “certain staff,” and noted
that the “investigation team” had identified “certain individuals to the relevant
Shell managers for consequence management.” Shell also included in the report
specific references to Writt, discussed his conduct in relation to Shell’s dealings
9
with its contractors, and detailed the information that Writt had provided during
Shell’s investigation.
In his response to Shell’s summary-judgment motion, Writt asserted that
Shell, in its report to the DOJ, had falsely described him as a major participant in
illegal conduct. Citing Shell’s report, Writt noted that he had informed Shell that
he had suspected certain illegal activity and had objected to Shell reimbursing
certain vendors for illegal payments. Nevertheless, Shell informed the DOJ that
Writt had approved payment of certain bribes, had denied suspecting that bribery
was occurring, and had failed to take action to stop the bribery on seventeen
separate occasions. Further citing Shell’s report to the DOJ, Writt also complained
that Shell informed the DOJ that he had provided inconsistent statements during
his interviews. Writt argued that because, under Texas law, “[s]tatements made to
prosecutorial agencies like the DOJ receive at most a qualified privilege,” Shell
was not entitled to summary judgment on the ground that it enjoyed an “absolute
privilege” to make the statements. In addition to the report, Writt attached to his
response his deposition and affidavit testimony. In his testimony, Writt explained
that he had been suspicious of certain payments made by a Shell contractor
beginning in 2004, he subsequently learned that one of Shell’s contractors had
pleaded guilty in February 2007 to FCPA violations, and he had notified Shell
10
personnel about an internal investigation being conducted by the contractor and the
contractor’s subsequent guilty plea to FCPA violations.
In its reply, Shell noted that on November 4, 2010, twenty months after it
had provided its investigative report to the DOJ, the DOJ “open[ed] a judicial
proceeding and file[d] a criminal information [against Shell] based at least in part
on the information provided by Shell in the course of the investigation.” Shell then
entered into a Deferred Prosecution Agreement with the DOJ, and it attached a
copy of the agreement to its reply. In the agreement, the DOJ noted that Shell had
cooperated in its investigation and agreed to continue cooperating in any ongoing
investigation. Shell also agreed to the payment of a monetary penalty.
Standard of Review
To prevail on a summary-judgment motion, a movant has the burden of
proving that it is entitled to judgment as a matter of law and there is no genuine
issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,
341 (Tex. 1995). When a defendant moves for summary judgment, it must either
(1) disprove at least one essential element of the plaintiff’s cause of action or (2)
plead and conclusively establish each essential element of its affirmative defense,
thereby defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341.
When deciding whether there is a disputed, material fact issue precluding summary
judgment, evidence favorable to the non-movant will be taken as true. Nixon v.
11
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable
inference must be indulged in favor of the non-movant and any doubts must be
resolved in his favor. Id. at 549.
Here, the parties dispute whether Shell’s claim of absolute privilege is
properly characterized as a defense or an affirmative defense for which Shell had
the burden of proof. Compare Clark v. Jenkins, 248 S.W.3d 418, 433 (Tex.
App.—Amarillo 2008, pet. denied) (stating that absolute privilege is “affirmative
defense to be proved”), with CEDA Corp. v. City of Houston, 817 S.W.2d 846, 849
(Tex. App.—Houston [1st Dist.] 1991, writ denied) (citing Reagan v. Guardian
Life Ins. Co., 166 S.W.2d 909, 913 (Tex. 1942)) (stating that “absolute privilege is
not a defense” and that “absolutely privileged communications are not
actionable.”). Regardless of the different characterizations of the absolute
privilege in Texas, a defendant is entitled to summary judgment on the basis of
absolute privilege only if the evidence conclusively proves the privilege’s
application. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 768 (Tex.
1987) (holding that evidence did not conclusively establish application of absolute
privilege); see also Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex. App.—San
Antonio 1997, no writ) (“Whether an alleged defamatory matter is related to a
proposed or existing judicial proceeding is a question of law to be determined by
the court.”).
12
Absolute Privilege
In his first issue, Writt argues that the trial court erred in granting summary
judgment in favor of Shell because Shell did not have an absolute privilege to
make defamatory statements about him in its report to the DOJ. Writt asserts that
there is “no summary judgment evidence that the DOJ had initiated any legal
proceedings against Shell” at the time that it made the defamatory statements in its
report.
“An absolutely privileged communication is one for which, by reason of the
occasion upon which it was made, no remedy exists in a civil action for libel or
slander.” Reagan, 166 S.W.2d at 912. When the absolute privilege applies to a
communication, there is no action in damages, “and this is true even though the
language is false and uttered or published with express malice.” Id.; see also
Hurlbut, 749 S.W.2d at 768 (stating that when absolute privilege applies, “the
actor’s motivation is irrelevant” and privilege is “not conditioned upon the honest
and reasonable belief that the defamatory matter is true or upon the absence of ill
will on the part of the actor”). Thus, the absolute privilege may be properly
characterized “as an immunity.” Hurlbut, 749 S.W.2d at 768.
The absolute privilege, or immunity, is “based chiefly upon a recognition of
the necessity that certain persons, because of their special position or status, should
be as free as possible from fear that their actions in that position might have an
13
adverse effect upon their own personal interests.” RESTATEMENT (SECOND) OF
TORTS ch. 25, title B, intro. note (1977). To accomplish this end, “it is necessary
for them to be protected not only from civil liability but also from the danger of
even an unsuccessful civil action.” Id. Under the Restatement, these persons
include “Judicial Officers,” “Attorneys at Law,” “Parties to Judicial Proceedings,”
“Witnesses in Judicial Proceedings,” “Jurors,” “Legislators,” “Witnesses in
Legislative Proceedings,” and “Executive and Administrative Officers.” Id.
§§ 585–591 (emphasis added).
In contrast, the “qualified,” or “conditional,” privilege concerning
communications may be defeated when it is abused, i.e., when the “person making
the defamatory statement knows the matter to be false or does not act for the
purpose of protecting the interest for which the privilege exists.” Hurlbut, 749
S.W.2d at 768. The distinction between the absolute privilege and the conditional,
or qualified, privilege is that “an absolute privilege confers immunity regardless of
motive whereas a conditional privilege may be lost if the actions of the defendant
are motivated by malice.” Id.
The conditional privilege “arises[s] out of the particular occasion upon
which the defamation is published” and is “based upon a public policy that
recognizes that it is desirable that true information be given whenever it is
reasonably necessary for the protection of the actor’s own interests, the interests of
14
a third person, or certain interests of the public.” RESTATEMENT (SECOND) OF
TORTS ch. 25, title B, intro. note (emphasis added). As noted in the Restatement:
In order that this information may be freely given it is necessary to
protect from liability those who, for the purpose of furthering the
interest in question, give information which, without their knowledge
or reckless disregard as to its falsity, is in fact untrue.
Id. The conditional privilege, which protects an actor from liability, but not civil
action, for providing information the actor believes to be true applies to a
“Communication to One Who May Act in the Public Interest.” Id. at § 598.
Texas recognizes that the “immunity” conferred by the absolute privilege
attaches only to a “select number of situations which involve the administration of
the functions of the branches of government, such as statements made during
legislative and judicial proceedings.” Hurlbut, 749 S.W.2d at 768. The Texas
Supreme Court has explained that communications made “in the due course of a
judicial proceeding” are absolutely privileged, and this privilege “extends to any
statement made by the judge, jurors, counsel, parties or witnesses, and attaches to
all aspects of the proceedings, including statements made in open court, pre-trial
hearings, depositions, affidavits and any of the pleadings or other papers in the
case.” James v. Brown, 637 S.W.2d 914, 916–17 (Tex. 1982). Additionally, the
application of the absolute privilege to communications made in the course of
judicial proceedings has been extended to apply “to proceedings before executive
15
officers, and boards and commissions which exercise quasi-judicial powers.”13
Reagan, 166 S.W.2d at 912. However, “[a]ll communications to public officials
13
Our dissenting colleague would have this Court be the first appellate court in the
nation to characterize the DOJ as acting in a quasi-judicial capacity by engaging in
its law-enforcement duties. He would further hold that the DOJ initiated its own
“quasi-judicial proceeding” simply by approaching and communicating about a
potential criminal matter with Shell. Here, as noted by Shell, the DOJ ultimately
did “open a judicial proceeding and file a criminal information” against Shell, and
Shell then entered into a Deferred Prosecution Agreement with the DOJ. It seems
rather odd to characterize the DOJ as engaging in a “quasi-judicial proceeding” for
its prosecutorial actions taken prior to its opening of an actual judicial proceeding
against Shell by the filing of a criminal information against Shell. Such a
characterization fails to recognize the distinct role of prosecutors and judges in our
criminal justice system. Regardless, our colleague would rely upon such a
characterization to extend absolute immunity for communications made to the
DOJ by a potential witness and/or a potential criminal defendant preliminary to an
actual judicial proceeding.
In support of his position, our dissenting colleague asserts that the DOJ “satisfies
most of the elements of quasi-judicial power,” citing Parker v. Holbrook, 647
S.W.2d 692 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.).
However, this Court in Parker did not, as suggested by our colleague, broadly
articulate a test for determining whether any “governmental entity” exercising
certain powers functions in a quasi-judicial capacity. Rather, emphasizing that
“the class of absolute privileges has traditionally been very limited,” we noted that
although, “[o]riginally, only those proceedings that were of a judicial nature were
deemed to warrant the protection of an absolute privilege,” the protection was later
“expanded to include some proceedings held before administrative agencies or
commissions that were of a judicial nature and warranted the protection.” Id. at
695 (emphasis added). We then simply noted that “[t]hese judicial powers
exercised by administrative agencies have been described as quasi-judicial
powers, encompassing the notion that they are exercised by non-judicial
agencies.” Id. (emphasis added). Given this context, we then explained that,
At least six powers have been delineated as comprising the judicial
function and would be indicative of whether a commission was
acting in a quasi-judicial, or merely an administrative, capacity: 1)
the power to exercise judgment and discretion; 2) the power to hear
and determine or to ascertain facts and decide; 3) the power to make
binding orders and judgments; 4) the power to affect the personal or
16
are not absolutely privileged.” Hurlbut, 749 S.W.2d at 768 (citing Zarate v.
Cortinas, 553 S.W.2d 652 (Tex. Civ. App.—Corpus Christi 1977, no writ)).
property rights of private persons; 5) the power to examine
witnesses, to compel the attendance of witnesses, and to hear the
litigation of issues on a hearing; and 6) the power to enforce
decisions or impose penalties.
Id. (emphasis added). We concluded that “[a]n administrative agency need not
have all of the above powers to be considered quasi-judicial, but certainly the
more of these powers it has, the more clearly is it quasi-judicial in the exercise of
its powers.” Id. And we ultimately held that a hearing conducted by the executive
committee of the Houston-Galveston Area Council, a regional planning agency of
the state designated by the governor, was “not quasi-judicial in nature.” Id. at 696.
This Court in Parker did not, and it has never, intimated that the protection of the
absolute privilege extends to communications made to any governmental entity
other than an administrative agency or commission, and then only in proceedings
of a judicial nature. Indeed, a review of the reasons supporting both the absolute
privilege and the conditional privilege reveals that there is no sound public policy
reason to extend the absolute privilege to communications other than those made
in a proceeding of a judicial nature held before administrative agencies or
commissions. Because they are in basically the same position, it makes sense to
recognize that a witness appearing in a proceeding of a judicial nature in front of
an administrative agency or commission should be protected from a lawsuit as is a
witness in a judicial proceeding. However, it makes no sense to grant the same
absolute immunity from a lawsuit for communications made by an individual or an
entity that may or may not be a witness some day in the future, especially if that
individual or entity may or may not be a criminal defendant. To grant such an
individual or entity—one that has a strong motive to deflect blame—immunity
would more effectively discourage, rather than encourage, truth-telling, especially
in a law-enforcement context.
As revealed below, the communication made by Shell to the DOJ regarding Writt
was in the nature of a “Communication to One Who May Act in the Public
Interest” under Restatement section 598. As such, given that a “sufficiently
important public interest” may have “require[d]” that Shell make the
communication to the DOJ, whether solicited by the DOJ or not, “to take action if
the defamatory matter [were] true,” Shell enjoys the adequate protection of the
conditional privilege, not absolute immunity. See RESTATEMENT (SECOND) OF
TORTS § 598.
17
In defining the scope of communications to which the absolute privilege
applies, the Texas Supreme Court has referred to relevant provisions in the
Restatement (Second) of Torts. Id. (citing RESTATEMENT (SECOND) OF TORTS
§§ 583–612 (1977)). For example, in James, the court considered the appropriate
privilege to apply to a psychiatrist’s statements referenced in reports that were filed
with a probate court. 637 S.W.2d at 917. The court considered the application of
Restatement section 588, entitled “Witnesses in Judicial Proceedings,” which
provides:
A witness is absolutely privileged to publish defamatory matter
concerning another in communications preliminary to a proposed
judicial proceeding or as a part of a judicial proceeding in which he is
testifying, if it has some relation to the proceeding.
James, 637 S.W.2d at 917 (quoting RESTATEMENT (SECOND) OF TORTS § 588
(1981)) (emphasis added). Noting that the “administration of justice requires full
disclosure from witnesses, unhampered by fear of retaliatory suits for defamation,”
the court held that the absolute privilege applied to the psychiatrist’s reports as
well as a letter written by an attorney in the case that was deemed written “in
contemplation” of the judicial proceeding. Id.
More recently, the supreme court considered the appropriate privilege to
apply to statements made by an insurance agency’s representative to an assistant
attorney general who had been assigned to investigate a group health insurance
program being sold by the agency. Hurlbut, 749 S.W.2d at 768. The court
18
considered both Restatement sections 588 and 598, which is entitled
“Communication to One Who May Act in the Public Interest.” Id. at 767–78.
Section 598 provides,
An occasion makes a publication conditionally privileged if the
circumstances induce a correct or reasonable belief that
(a) there is information that affects a sufficiently
important public interest, and
(b) the public interest requires the communication of
the defamatory matter to a public officer or a
private citizen who is authorized or privileged to
take action if the defamatory matter is true.
RESTATEMENT (SECOND) OF TORTS § 598 (emphasis added) (quoted in Hurlbut,
749 S.W.2d at 768). Noting that the evidence before it did not conclusively
establish that the allegedly defamatory statements were made to a public official or
were made in the course of a judicial or quasi-judicial proceeding, the court held
that the agency’s communications to the assistant attorney general were “best
analogized to the conditional privilege” set forth in section 598 and, thus, the
statements were not absolutely privileged. Hurlbut, 749 S.W.2d at 768.
Texas courts of appeals have also addressed the application of the absolute
and conditional privileges to various communications. In Zarate, the Corpus
Christi Court of Appeals considered the appropriate privilege to apply to allegedly
slanderous statements made in a criminal complaint filed with a local sheriff’s
office. 553 S.W.2d at 654. The court acknowledged that communications
19
published in the course of a judicial proceeding are absolutely privileged and the
privilege for such statements extends to “proceedings before executive officers,
boards or commissions which exercise quasi-judicial powers.” Id. at 655.
Analyzing the facts before it, the court determined that only a qualified privilege
applied to communications “of alleged wrongful acts to an official authorized to
protect the public from such acts.” Id. The court acknowledged that “strong
public policy consideration[s]” dictate that communications like the criminal
complaint before it “be given some privilege against civil prosecution for
defamation” and it is “vital to our system of criminal justice that citizens be
allowed to communicate to peace officers the alleged wrongful acts of others
without fear of civil action for honest mistakes.” Id. (emphasis added). But the
court concluded that such communications did not fall “within the traditional areas
of absolutely privileged communications” recognized in Texas. Id. The court
further noted that applying the absolute privilege under the circumstances before it
“would unnecessarily deny those innocent victims of maliciously or recklessly
filed complaints an opportunity to seek remuneration for their injury.” Id.
(emphasis added); see also Vista Chevrolet, Inc. v. Barron, 698 S.W.2d 435, 436
(Tex. App.—Corpus Christi 1985, no writ) (holding that only conditional privilege
applied to criminal theft complaint made to law-enforcement authorities).
20
In Clark v. Jenkins, the Amarillo Court of Appeals considered the
appropriate privilege to apply to allegedly defamatory statements made by a civil
rights group accusing the plaintiff of having a criminal history in a memorandum
published to a congressman and the DOJ’s Civil Rights Division. 248 S.W.3d 418,
423–25 (Tex. App.—Amarillo 2008, pet. denied). The court, after reviewing
Texas privilege law, noted that, “[c]learly, all communications to public officials
are not absolutely privileged.” Id. at 432 (citing Hurlbut, 749 S.W.2d at 768). The
court explained that “[i]nitial communications ‘to a public officer . . . who is
authorized or privileged to take action’ are subject to only a qualified privilege, not
absolute immunity.” Id. (quoting Hurlbut, 749 S.W.2d at 768). Moreover, the
“filing of a criminal complaint is not absolutely privileged because, at that point,
no judicial proceedings have been proposed and no investigating body has
discovered sufficient information to present to a grand jury or file a misdemeanor
complaint.” Id. Citing both the Texas Supreme Court’s opinion in Hurlbut and the
Corpus Christi Court of Appeals’s opinion in Zarate, the court concluded that
“initial” communications “of alleged wrongful or illegal acts to an official
authorized to protect the public from such acts [are] subject to a qualified
privilege.” Id. Because the defendant, who had published the memo to the DOJ,
produced no evidence indicating that the DOJ “was actively contemplating,
investigating, or litigating any civil rights violations” at the time of publication,
21
and because the defendant’s allegations made in the memorandum “were
preliminary in nature, i.e., designed to launch an investigation that might lead to
legal action,” the court held that the defendant’s statements made to the DOJ “were
not part of an executive, judicial, or quasi-judicial proceeding, and were not subject
to an absolute privilege.”14 Id. at 433.
In Darrah v. Hinds, the Fort Worth Court of Appeals considered the
appropriate privilege to apply to statements made by a bank in a writ of
sequestration filed with a court. 720 S.W.2d 689, 690–91 (Tex. App.—Fort Worth
1986, writ ref’d n.r.e.). The court noted that the absolute privilege applies to
communications made in the course of, or “in contemplation” of, judicial
proceedings, while the qualified privilege applies to communications of wrongful
acts to officials authorized to protect the public from such acts, such as criminal
complaints. Id. at 691. Noting that the affidavit was filed and acted upon by the
county court, the court held that the absolute privilege applied to the statements
made in the writ of sequestration. Id. at 691–92.
In Smith v. Cattier, the Dallas Court of Appeals, within the context of a
jurisdictional analysis, considered whether the absolute privilege applied to
14
Similarly, in San Antonio Credit Union v. O’Connor, the San Antonio Court of
Appeals held that a qualified privilege applied to statements made in a criminal
complaint supplied to a district attorney. 115 S.W.3d 82, 99 (Tex. App.—San
Antonio 2003, pet. denied). The court noted that, at the time of the complaint, no
judicial proceedings had been proposed. Id.
22
statements made to the Federal Bureau of Investigation (“FBI”) by one business
associate concerning another business associate. No. 05-99-01643-CV, 2000 WL
893243, at *3–4 (Tex. App.—Dallas July 6, 2000, no pet.) (not designated for
publication). The court noted that, under Texas law, “[a]bsolute immunity does
not extend to unsolicited communications to law enforcement officials or initial
communications to a public officer . . . authorized or privileged to take action” and,
under such circumstances, “the actor is entitled to only a qualified privilege which
may be lost if the defendant’s actions are motivated by malice.” Id. at *4 (citations
omitted). The court concluded that because the defendant had failed to
demonstrate that he was not involved in referring the plaintiff to the FBI or
“instigating the investigation,” and because the defendant failed to “negate” the
plaintiff’s claim that the defendant had “initiated, procured, and caused” the
commencement of the criminal investigation into plaintiff’s actions, the defendant
had failed to establish that he was entitled to absolute immunity.” 15 Id.
15
More specifically, in Smith v. Cattier, the defendant was on the board of directors
of a company that voted to terminate the plaintiff’s position as the company’s
president and remove him and his wife from the board of directors. No. 05-99-
01643-CV, 2000 WL 893243, at *3 (Tex. App.—Dallas July 6, 2000, no pet.) (not
designated for publication). The board also voted to refer the plaintiff to the FBI.
Id. Although the plaintiff was ultimately indicted, he was later acquitted and sued
the defendant for slander and libel. Id. The defendant argued that the statements
he had made to the FBI during an interview requested by the FBI in connection
with its investigation were absolutely privileged. Id. at *4. The court rejected the
defendant’s absolute privilege argument, but its opinion suggests that the court did
so not based upon the statements made during the course of the FBI interview, but
instead upon the plaintiff’s allegation that the defendant was one of the board
23
Finally, a federal district court in Texas recently considered the appropriate
privilege to apply to allegedly defamatory statements made by a witness during
Major League Baseball’s (“MLB”) investigation, which was conducted in
conjunction with a federal investigation, into the illegal use of steroids. See
Clemens v. McNamee, 608 F. Supp. 2d 811, 823–25 (S.D. Tex. 2009). The court
noted that, under Texas law, communications “to government agencies as part of
legislative, judicial, or quasi-judicial proceedings are entitled to absolute immunity
so long as they are made as part of an ongoing proceeding, they are not unsolicited,
and they are made to an agency whose findings need not be approved or ratified by
another agency.” 16 Id. at 823–24.
members that had referred him to the FBI, which the court characterized as an
“unsolicited communication” that instigated the criminal investigation. Id.
16
In reaching its holding, the court in Clemens relied significantly on Shanks v.
AlliedSignal, Inc., 169 F.3d 988 (5th Cir. 1999). In Shanks, the court held that a
National Transportation and Safety Board (“NTSB”) accident investigation
qualified as a quasi-judicial proceeding, and, thus, Texas law recognized absolute
immunity for statements made during the NTSB investigation. Id. at 994–95. In
reaching its holding, the court engaged in a “comprehensive” review of Texas case
law on the scope of the absolute privilege in the context of communications made
to government agencies. Id. at 993–94. The court found “only two situations” in
which Texas courts recognized that communications made to government agencies
were not absolutely privileged: (1) cases involving “unsolicited communications
to law enforcement officials” made “in advance of any formal proceeding or
investigation” and (2) cases involving communications made to agencies that issue
mere recommendations or preliminary findings. Id. at 994. The court held that
the allegedly defamatory statements at issue in the case before it were “made in
connection with an ongoing NTSB investigation” and were absolutely privileged.
Id.
24
Having reviewed the Texas common law addressing the scope of the
absolute privilege and its application in different factual scenarios, 17 we now turn
to the arguments made by the parties in the instant case. Writt argues that only the
qualified privilege applies to Shell’s statements made in the report to the DOJ
because there is no summary-judgment evidence that the DOJ had initiated any
legal proceedings against Shell at the time it submitted the report. Writt asserts
that our disposition of this case is controlled by the Texas Supreme Court’s opinion
in Hurlbut, which indicates that statements made by Shell in its report to the DOJ
were not absolutely privileged. Shell counters that the absolute privilege applies to
“statements solicited in an ongoing government investigation.” Focusing on the
Clemens opinion, Shell asserts that “Texas law distinguishes between statements
solicited by government officials or agents as part of an ongoing investigation,” to
which the absolute privilege applies,” and “unsolicited statements unilaterally
17
This Court has not previously addressed the proper privilege to apply in
circumstances similar to those presented here. In Watson v. Kaminski, we noted
that “attorney’s statements made during litigation are not actionable as
defamation, regardless of negligence or malice,” and the absolute privilege
“includes communications made in contemplation of and preliminary to judicial
proceedings.” 51 S.W.3d 825, 827 (Tex. App.—Houston [1st Dist.] 2001, no pet.)
(emphasis added). In Marathon Oil Co. v. Salazar, we addressed a jury charge
issue pertaining to a qualified privilege for making a criminal complaint. 682
S.W.2d 624, 629–31 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).
However, we expressly stated that the defendant had not made any objection to the
submission to the jury of the plaintiff’s libel cause of action on the basis of
absolute privilege, so we did not have the occasion to address the applicability of
the proper privilege. Id. at 631.
25
proffered to government officials for the purpose of instigating or launching such
an investigation or proceeding,” to which the qualified privilege applies. Shell
notes that, in preparing the report, it was under the “continuing threat of
prosecution for FCPA violations” as well as the “penalty of perjury” for any
misstatements contained in the report. Shell emphasizes that it was ultimately
prosecuted by the DOJ for conspiracy to violate the FCPA.
We hold that the summary-judgment evidence does not conclusively
establish the applicability of the absolute privilege to the complained-of statements
made by Shell in the report to the DOJ. See Hurlbut, 749 S.W.2d at 768 (stating
that defendant was entitled to summary judgment on basis of absolute privilege
only if evidence conclusively proves the privilege’s application). Although Shell
established that it made the report in its effort to cooperate with the DOJ, Shell
actually prepared the report during the course of its own voluntary “internal
investigation.”
Shell did present evidence that it conducted its internal investigation in
response to a DOJ inquiry after attending a meeting requested by the DOJ.
However, there is no evidence conclusively establishing that a criminal case had
been filed against Writt or Shell, or that a criminal prosecution was actually being
proposed against either Writt or Shell, at either the time the DOJ contacted Shell or
when Shell submitted its report to the DOJ. The summary-judgment evidence
26
establishes that the DOJ initially contacted Shell on July 3, 2007, five months after
a Shell contractor, Vetco Gray, had already pleaded guilty to violating the FCPA in
connection with payments made through Panalpina. And Shell submitted the
complained-of report to the DOJ on February 5, 2009. The DOJ did not, in Shell’s
words, “open a judicial proceeding and file a criminal complaint” against Shell
until November 4, 2010, twenty months after Shell submitted its report. Just
because the DOJ ultimately filed a judicial proceeding against Shell does not
establish that it was proposing that one be filed when it contacted Shell on July 3,
2007 or received Shell’s report on February 5, 2009.
Moreover, the report itself indicates that Shell also prepared it for important
internal purposes. For example, Shell included in the report its findings and
recommendations made to deter future “potential violations” of Shell’s business
principles, it recommended disciplinary action for “certain staff,” and it stated that
the “certain individuals” had been “identified” for “consequence management” by
Shell. In its report, Shell was not proposing that either it or Writt should be
prosecuted for a crime. 18
18
Section 587 of the Restatement (Second) of Torts, entitled “Parties to Judicial
Proceedings,” provides:
A party to a private litigation or a private prosecutor or defendant in
a criminal prosecution is absolutely privileged to publish defamatory
matter concerning another in communications preliminary to a
proposed judicial proceeding, or in the institution of or during the
27
Our conclusion that the absolute privilege does not apply to the statements
made by Shell to the DOJ is based upon our review of Texas case law, which
reveals that allegedly defamatory statements contained within criminal complaints,
and other similar information provided by private parties to prosecutorial and law
enforcement agencies prior to the initiation of criminal proceedings, are not subject
to the absolute privilege. See Clark, 248 S.W.3d at 427–34; Zarate, 553 S.W.2d at
654. These holdings comport with the general recognition that the absolute
privilege applies only to communications made in judicial proceedings and those
communications made preliminary to or in serious contemplation of a judicial
proceeding. See Hurlbut, 749 S.W.2d at 767 (citing RESTATEMENT (SECOND) OF
TORTS § 588); James, 637 S.W.3d at 917; Zarate, 553 S.W.2d at 654; see also San
Antonio Credit Union, 115 S.W.3d at 99 (stating that “an investigation into
criminal activity does not amount to” proposed judicial proceeding and proposed
judicial proceeding exists when investigating body finds “enough information
course and as a part of, a judicial proceeding in which he
participates, if the matter has some relation to the proceeding.
RESTATEMENT (SECOND) OF TORTS § 587 (1977) (emphasis added). Section 587
“applies to a litigant in a civil action, a defendant in a criminal prosecution, or one
who, as private prosecutor, formally initiates a criminal action or applies for a
search warrant by a written complaint under oath, made to the proper officer,
charging another with crime.” Id. § 587 cmt. b. It also “applies to
communications made by a client to his attorney with respect to proposed
litigation as well as to information given and informal complaints made to a
prosecuting attorney or other proper officer preliminary to a proposed criminal
prosecution whether or not the information is followed by a formal complaint or
affidavit.” Id.
28
either to present that information to a grand jury or to file a misdemeanor
complaint”).
In Hurlbut, a client of an insurance agency contacted an agent of the agency
and the office of the Texas Attorney General after becoming concerned that the
agency could not produce a copy of a master policy that the agency was selling.
749 S.W.2d at 764. The agent, after receiving this telephone call, then contacted
the agency to inquire about the policy. Id. A representative of the agency
reassured him and suggested he meet with the agency to “straighten out the
matter.” Id. When two insurance agents arrived at this purported meeting to
straighten things out, they were “surprised by the appearance” of an assistant
attorney general who had been “assigned to investigate” the insurance policy being
sold by the agency. Id. At the meeting, an agency representative told the assistant
attorney general that its employed agents did not have the authority to write the
insurance policy that they were writing. Id. Thus, the agency effectively accused
the agents of wrongdoing. The agents then accompanied the assistant attorney
general to a local office and “cooperated in the investigation.” Id. The Texas
Supreme Court explained that the allegedly defamatory statements made by the
agency representative at the meeting with the insurance agents were “best
analogized” to the circumstances in which a conditional privilege applied. Id. at
768; see also Gulf Atl. Life Ins. Co. v. Hurlbut, 696 S.W.2d 83, 89–90 (Tex.
29
App.—Dallas 1985), rev’d, 749 S.W.2d 762 (providing additional factual
background and indicating that agency representative had originally, falsely
informed a city attorney that the agents were not authorized to write the insurance
policy and a city attorney had then reported this information to the office of the
Texas Attorney General).19
19
The parties have submitted to this Court, pursuant to our request at oral argument,
their survey of cases from other jurisdictions addressing the application of the
absolute and qualified privileges to certain statements. Although the parties
vigorously disagree about a “majority” and “minority” rule concerning the
application of the absolute privilege, they have provided us with a thorough and
helpful examination of other jurisdictions’ treatment of the privilege issue. The
surveys reflect that other jurisdictions have formulated privilege rules based, in
large part, upon public policy considerations. For example, in his post-submission
brief, Writt cites a case from the Connecticut Supreme Court holding that, under
Connecticut law, allegedly false and malicious statements made to a law
enforcement officer investigating a criminal allegation are qualifiedly, rather than
absolutely, privileged. See Gallo v. Barile, 935 A.2d 103, 114 (Conn. 2007). The
court in Gallo discussed policy considerations for adopting its rule, noting that a
“qualified privilege is sufficiently protective of [those] wishing to report events
concerning crime” and “[t]here is no benefit to society or the administration of
justice in protecting those who make intentionally false and malicious defamatory
statements to the police.” Id. at 108–14.
In contrast, in its post-submission brief, Shell cites, among others, a case from the
Massachusetts Supreme Court holding that, under its state’s law, statements made
to police or prosecutors prior to trial are absolutely privileged if they are made in
the context of a proposed judicial proceeding. Correllas v. Viveiros, 572 N.E.2d
7, 11 (Mass. 1991). The court in Correllas also discussed policy considerations
supporting its rule, noting that a conditional or qualified privilege would “not
adequately protect a witness or party because he or she may still have to go to
court to prove the absence of malice or recklessness.” Id. Although we have
considered the surveys in which the jurisdictions discuss the various policy
considerations supporting their respective rules, we base our holding upon what
we consider to be the rule suggested by the weight of authority in Texas. We
conclude that this authority indicates that, under Texas law, it is more appropriate
30
Again, here, although the record establishes that the DOJ contacted Shell to
discuss Shell’s engagement of Panalpina in Nigeria, there is nothing in the record
that conclusively establishes that, at that time, the DOJ had filed a criminal
proceeding against either Shell or Writt. Nor is there any summary-judgment
evidence conclusively establishing that the DOJ, at the time that it contacted Shell,
was acting in a manner preliminary to filing a criminal proceeding against either
Shell or Writt. Similarly, Shell has not conclusively established that it actually
contemplated in good faith and took under serious consideration the possibility of a
judicial proceeding. And there is no evidence conclusively establishing that Writt,
prior to Shell sharing its report with the DOJ, had been implicated in the alleged
commission of a crime or reported to a law-enforcement agency for an alleged
criminal act. Thus, the statements in Shell’s report, at least as they pertained to
Writt, were more in the nature of information provided by a private party to a
prosecutorial agency implicating another in wrongful conduct. And, as noted
above, Texas courts have indicated that a conditional privilege is more suitable to
protect such statements.20
to apply the conditional privilege to the complained-of statements made by Shell
in the report that it submitted to the DOJ.
20
Our dissenting colleague argues that Shell should be protected by the absolute
privilege because “it can face criminal liability for failure to adequately comply
and cooperate with the DOJ’s investigation,” citing United States v. Kay, 513 F.3d
432, 454–55 (5th Cir. 2007). In Kay, the defendant was charged with obstruction
31
Under the Restatement, Shell’s communication is protected by the
conditional privilege as a “Communication to One Who May Act in the Public
Interest.” See RESTATEMENT (SECOND) OF TORTS § 598. As such, given that a
“sufficiently important public interest” may have “require[d]” that Shell make the
communication to the DOJ, whether solicited by the DOJ or not, “to take action if
the defamatory matter [were] true,” Shell enjoys the adequate protection of the
conditional privilege, not immunity. 21 See id. Section 598 is “applicable when any
recognized interest of the public is in danger, including the interest in the
prevention of crime and the apprehension of criminals, the interest in the honest
discharge of their duties by public officers, and the interest in obtaining legislative
relief from socially recognized evils.” Id. § 598 cmt. d (emphasis added). And
section 598 is specifically “applicable to defamatory communications to public
of justice for withholding certain documents and denying certain facts in
testimony given to the United States Securities and Exchange Commission
(“SEC”) during the SEC’s investigation of violations of the FCPA. Id. at
454. However, in Kay, the defendant was actually subpoenaed as a witness to
appear before the SEC, and he was directed to produce documents and provide
testimony. Id. Here, as explained above, Shell was never subpoenaed as a witness
by the DOJ, and it actually produced its report implicating Writt as part of its own
“internal investigation.”
21
Under the Restatement, had Shell actually filed a “[f]ormal or informal
complaint[]” with the DOJ about Writt concerning an actual “violation[] of the
criminal law” by him, it would then have been entitled to the absolute privilege
“under the rule stated in section 587” concerning “Parties to Judicial Proceedings.”
See RESTATEMENT (SECOND) OF TORTS § 598 cmt. e. But Shell’s communication
to the DOJ did not constitute a formal or informal criminal complaint against
Writt, and Shell has made no attempt to characterize its communication as such.
32
officials concerning matters that affect the discharge of their duties.” Id. § 598
cmt. e (“Communications to Public Officials”).
And even if Shell could possibly be considered as a “witness” having made
“communications preliminary to a proposed judicial proceeding,” it would be
entitled to the absolute privilege accorded a witness in a judicial proceeding only if
its communications to the DOJ had “some relation to a proceeding that is actually
contemplated in good faith and under serious consideration . . . .” Id. § 588 cmt. e.
As emphasized in the Restatement, the “bare possibility that the proceeding might
be instituted is not to be used as a cloak to provide immunity for defamation when
the possibility is not seriously considered.” Id. (emphasis added).
In support of its argument that the complained-of statements in the report
that it submitted to the DOJ are absolutely privileged, Shell relies greatly upon
Clemens, 608 F. Supp. 2d at 823–25. In Clemens, the court noted that the
evidence before it demonstrated that the pertinent witness, Brian McNamee, had
been interviewed by an Assistant United States Attorney as part of a federal
investigation into the distribution of steroids. Id. at 824. McNamee and his
counsel met with the prosecutor and agents from the FBI and the Internal Revenue
Service numerous times, and McNamee had been told that his “witness status”
could be reviewed if he “chose not to co-operate” and he was subject to
prosecution for making false statements during these interviews. Id. The evidence
33
also demonstrated that the prosecutor told McNamee that speaking to the MLB
Commission “was part of his co-operation with the investigation in order to
maintain his witness status.” Id. Prior to the interviews with the MLB
Commission, the prosecutor told McNamee that their proffer agreement would
cover the interviews and he could face prosecution for any false material
statements. Id. McNamee agreed to these terms and participated in three
interviews with the MLB Commission, the interviews were all arranged by federal
agents or Assistant United States Attorneys, and prosecutors and FBI agents
participated in all interviews between McNamee and the MLB Commission. Id.
The federal district court determined that the evidence established that the
investigation was an “ongoing proceeding,” McNamee’s statements “should be
protected” “[a]s a matter of public policy,” McNamee was “compelled” to make
his statements to the MLB Commission “as part of a judicial proceeding,” and
McNamee’s statements “should be treated with immunity.” Id. at 823–25.
In the instant case, the facts established in the summary-judgment record do
not demonstrate that the DOJ ever granted Shell any type of “witness status.” Nor
is there any evidence here of a formalized investigative process of the type
engaged in by the MLB Commission with the assistance of federal prosecutors and
the FBI. The Clemens opinion reveals that McNamee’s statements to the MLB
Commission were made in furtherance of its regulatory and oversight functions
34
and preliminary to a proposed criminal proceeding that was actually contemplated.
Indeed, McNamee had been granted “witness status.” Id. at 824. Moreover, to the
extent that the court’s opinion in Clemens could possibly be read as applying the
absolute privilege beyond how Texas courts have applied it, we note that the
Clemens opinion is not controlling authority on this Court. Rather, we are bound
to follow the guidance and reasoning provided by the Texas Supreme Court in
Hurlbut.
Conclusion
In sum, the summary-judgment evidence presented in the trial court below
does not conclusively establish that, at the time Shell prepared its report following
its “internal investigation” and submitted it to the DOJ, a criminal judicial
proceeding against either Shell or Writt was either ongoing or “actually
contemplated” or under “serious consideration” by the DOJ or Shell. See
RESTATEMENT (SECOND) OF TORTS § 588, cmt. e. Rather, the communication made
by Shell in its report to the DOJ and complained of by Writt is protected by the
conditional privilege as a “Communication to One Who May Act in the Public
Interest.” See id. § 598.
35
Accordingly, we hold that the trial court erred in granting Shell’s summary-
judgment motion. We sustain Writt’s first issue. And we reverse the judgment of
the trial court and remand for proceedings consistent with this opinion.
Terry Jennings
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Justice Brown, dissenting.
36