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Finkelstein, Thompson & Loughran and Enright v. Hemispherz Biopharma

June 14, 2001

FINKELSTEIN, THOMPSON & LOUGHRAN AND DONALD J. ENRIGHT, APPELLANTS,
v.
HEMISPHERX BIOPHARMA, INC., APPELLEE.



Before Terry, Ruiz and Glickman, Associate Judges.

The opinion of the court was delivered by: Glickman, Associate Judge

Appeal from the Superior Court of the District of Columbia Hon. Brook Hedge, Trial Judge

Argued February 29, 2000

Appellee Hemispherx Biopharma, Inc. ("Hemispherx") sued appellants Donald J. Enright and his law firm Finkelstein, Thompson & Loughran, claiming that Enright slandered it when he solicited one of Hemispherx's shareholders as a client in order to bring a potential shareholders' derivative or class action lawsuit against Hemispherx. Invoking the absolute privilege recognized in this jurisdiction for defamatory statements by an attorney that are preliminary to a proposed judicial proceeding, appellants moved to dismiss the defamation count of the complaint. The trial court denied the requested relief, and appellants filed the instant interlocutory appeal.

The principal issues we address are whether we have jurisdiction, and if so whether the so-called "judicial proceedings privilege" may extend to statements made by an attorney in an initial consultation with a prospective client from whom the attorney is "soliciting" employment. We hold that we do have jurisdiction, because the denial of a claim of absolute immunity from suit is immediately appealable under the collateral order doctrine. We further hold that the judicial proceedings privilege is available, if its requirements are met, to cover statements made by an attorney to a prospective client in a pre-retention meeting.

Applying the latter holding to the complaint in this case, we conclude that on the facts as alleged, Enright's statements to Hemispherx's shareholder were absolutely privileged as a matter of law. Accordingly, we reverse the denial of appellants' motion to dismiss.

I.

As alleged in its complaint, *fn1 Hemispherx is a publicly traded corporation engaged in experimental drug research and development. The company's principal focus has been the clinical testing and promotion of an anti-viral compound known as Ampligen for the possible treatment of chronic fatigue syndrome, hepatitis and other serious medical conditions. Preliminary results allegedly have been encouraging, and the FDA has granted Ampligen investigative new drug status.

In September 1998, however, an analyst named Manuel P. Asensio published over the Internet a "strong sell recommendation" for Hemispherx's common stock, along with a research report that severely criticized the company and its Chief Executive Officer, Dr. William A. Carter. According to the complaint, the report was libelous and contained numerous misstatements and omissions of material fact. Nonetheless, Asensio's comments were picked up and reported in the September 28, 1998, issue of Business Week. Within a matter of days, the price of Hemispherx's stock, which was traded on the American Stock Exchange, dropped from around $13 per share to approximately $5 per share. *fn2

Prior to September 28, 1998, shareholders posted messages concerning Hemispherx on an electronic bulletin board devoted to the company that was maintained on the "Yahoo!" Internet site. On or about that date, the complaint alleges, appellants Finkelstein, Thompson & Loughran, a Washington, D.C. law firm (hereinafter, "FTL"), and Donald J. Enright, an attorney associated with that firm, sent an unsolicited electronic mail message to a shareholder (identified only as "Shareholder A") who had previously posted a message on the Hemispherx bulletin board. The message to Shareholder A stated that FTL "handles plaintiffs' class action law suits in the securities field" and that it is "investigating Hemispherx Biopharma Inc. at this time." The message invited Shareholder A to contact Enright if he was "interested in discussing this matter further."

Shareholder A, who was not a client of Enright or FTL, apparently was interested in discussing "this matter" with them, for he telephoned Enright in response to the e-mail message and spoke with him for nearly an hour. The following day, Shareholder A sent Hemispherx a letter recounting what Enright said to him, together with contemporaneous notes of the conversation. Shareholder A also transmitted a report to the Hemispherx bulletin board at Yahoo!

According to Shareholder A, Enright said that he "specializes in finding `bogus' companies to sue." He had been in communication with Asensio, and he claimed that he agreed with Asensio's report on Hemispherx except for minor details. Enright said that Ampligen was "a drug looking for a disease." It had "been around" for over ten years, and had been considered as a possible treatment for one disease after another; this, Enright said, "was no way a `real' pharmaceutical company went about pursuing new drug research." Enright reportedly added that Hemispherx had no proprietary rights to Ampligen, and that therefore anyone would be able to make and sell the drug after it received FDA approval. Further, Enright allegedly stated that Dr. Carter was less than trustworthy, *fn3 and that he and other Hemispherx executives might be transferring money into secret accounts and passing off warrants so as to leave a shell company for the shareholders. Enright suggested that his law firm could recover the shareholders' losses by pursuing any directors' and officers' liability insurance that Hemispherx had in place.

The complaint claims that Enright's statements that Hemispherx had no proprietary rights in Ampligen, and that Carter and other executives might be secreting money and issuing warrants to cheat the shareholders by leaving them with a shell company, were false and misleading. The first count of the complaint charges appellants with defamation; and it alleges that "Enright's statements were made with malice, in that they were made with knowledge of or with reckless disregard for the truth." A second count charges that Enright also violated Rule 7.1 (b) of the District of Columbia Rules of Professional Conduct, by making materially false and misleading statements in soliciting Shareholder A as a potential client. The complaint seeks an order enjoining FTL and Enright from soliciting its shareholders as their clients in class or derivative litigation based on false and misleading statements, and an award of compensatory damages "in excess of $5,000."

Appellants moved to dismiss the complaint pursuant to Super. Ct. Civ. R. 12 (b)(6). They sought dismissal of the defamation count on the principal ground that Enright's statements were absolutely privileged as statements preliminary to a proposed judicial proceeding. In opposition, Hemispherx argued that in the District of Columbia the judicial proceedings privilege had never been held to protect statements made by an attorney in the course of soliciting a client, and that the privilege is properly limited to ...


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