Sriberg v. Raymond

Decision Date08 April 1976
Citation345 N.E.2d 882,370 Mass. 105
PartiesPaul L. SRIBERG et al. v. James J. RAYMOND et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert S. Wolfe, Boston, for plaintiffs.

Robert G. Stewart, Boston, for defendants.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

REARDON, Justice.

This matter is before us pursuant to S.J.C. Rule 3:21, 359 Mass. 790 (1971), providing for certification of questions of law to this court from other courts, including the United States District Courts. The question certified is, 'Is an allegedly defamatory statement absolutely privileged under the law of Massachusetts when it is contained in a communication mailed by an attorney to a person against whom, the communication indicates, the attorney is threatening to bring a lawsuit?' We refer to the facts set forth in the memorandum and order certifying the question.

The plaintiff Paul S. Sriberg is president and majority stockholder of the plaintiff Roll Form Products, Inc. (Roll Form), which on January 24, 1975, entered into a contract with the defendant Southwest Truck Body Company (Southwest), a Missouri corporation. The defendant James J Raymond was a resident of missouri and counsel for Southwest. Under the contract Roll Form was to purchase stock in Mac-Fab Products, Inc. (Mac-Fab), for $750,000. Southwest owned all the outstanding stock of Mac-Fab. The contract provided that the Shawmut Credit Corp. (Shawmut), an affiliate of The National Shawmut Bank of Boston, would hold in escrow $100,000 deposited with it by Roll Form as 'earnest money' to be credited against the purchase price. The closing date for the purchase was to be February 24, 1975. On February 12, 1975, Roll Form notified Southwest that it was not going forward with the purchase. On February 13, 1975, the defendant Raymond, under the letterhead of his law corporation, wrote to the plaintiff Sriberg, in his capacity as President of Roll Form, a copy of the letter going to Shawmut, which letter contained the alleged libel which has resulted in the certification. Included in the letter was the following language:

'Your persistence, against this backdrop, of a meritorious basis for repudiation is a sham. Your conduct in this respect is reckless, willful and malicious. Your decision to pursue that course is a tragic mistake. It severely injures Mac-Fab as well as Southwest and, in view of the full manifestation of management control your people have exerted over Mac-Fab in the industry, a vast monetary amount will be required to duplicate the posture in which Mac-Fab and Southwest would have been had you closed your purchase as agreed in writing. It is quite obvious that you now are attempting to appropriate Mac-Fab's business without payment.

'If these demands are not met, suit will be instituted against Roll Form and Shawmut for actual and exemplary damages, including without limitation damages for Roll Form's misappropriation of Mac-Fab's business information communicated in connection with this purchase and in confidence, as well as for Roll Form's taking and asportation of Mac-Fab's customer orders and Roll Form's severe injury to the business reputation of Mac-Fab and its management. Injunctive relief likewise will be sought in the foregoing respects.

'Mr. Sriberg, this choice is yours!'

The transaction was not completed and Shawmut did not turn over the $100,000 it held as escrow agent. On March 17, 1975, Southwest commenced a civil action against Roll Form and Shawmut in the United States District Court, Eastern District of Missouri, Eastern Division, which alleged anticipatory breach of contract by Roll Form and a breach of fiduciary duty by Shawmut. The libel action which gave rise to the present certification was filed in the United States District Court, District of Massachusetts, on February 24, 1975. The Chief Judge of that District Court is of opinion that the law of this Commonwealth determines whether the communication is absolutely privileged.

We answer the question put to us in the affirmative as qualified in the language below.

The Restatement of Torts, § 586 (1938), provides that '(a)n attorney at law is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding in which he participates as counsel, if it has some relation thereto.' We have hitherto held that statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are absolutely privileged provided such statements relate to that proceeding. See Aborn v. Lipson, 357 Mass. 71, 72--73, 256 N.E.2d 442 (1970); Seelig v. Harvard Cooperative Soc'y, 355 Mass. 532, 538, 246 N.E.2d 642 (1969); Mezullo v. Maletz, 331 Mass. 233, 236, 118 N.E.2d 356 (1954); Laing v. Mitten, 185 Mass. 233, 235, 70 N.E. 128 (1904). While the Massachusetts cases have not yet done so, the...

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138 cases
  • In re Cobb
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • December 8, 2005
    ...on the motion judge's ruling that Attorney Rose's response to the respondent's demand letter was privileged, see Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882 (1976), because reasonable judges have reached different conclusions about whether a letter such as that written by Attorney Ros......
  • Kurker v. Hill
    • United States
    • Appeals Court of Massachusetts
    • January 22, 1998
    ...the institution or conduct of litigation or in conferences and other communications preliminary to litigation." Sriberg v. Raymond, 370 Mass. 105, 109, 345 N.E.2d 882 (1976). See generally Robert L. Sullivan, D.D.S., P.C. v. Birmingham, 11 Mass.App.Ct. 359, 361-362, 416 N.E.2d 528 (1981); D......
  • Alger v. Ganick, O'Brien & Sarin
    • United States
    • U.S. District Court — District of Massachusetts
    • February 9, 1999
    ...GOS to liability under the FDCPA whereas such statements are subject to a privilege under state common law. See Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882, 883 (1976) ("statements by a party, counsel or witness in the institution of, or during the course of, a judicial proceeding are......
  • Kanengiser v. Kanengiser
    • United States
    • New Jersey Superior Court
    • March 14, 1991
    ...Division in DeVivo cited Lerette v. Dean Witter Organization, Inc., 60 Cal.App.3d 573, 131 Cal.Rptr. 592 (1976); Sriberg v. Raymond, 370 Mass. 105, 345 N.E.2d 882 (1976); and Russell v. Clark, 620 S.W.2d 865 (Tex.Civ.App.1981). Other cases standing for this proposition include Ascherman v. ......
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