Fischkoff v. Iovance Biotherapeutics, Inc.
339 F. Supp. 3d 383
S.D. Ill.2018Background
- Plaintiff Steven Fischkoff, a long‑time physician, was hired as Iovance's VP & Chief Medical Officer under a written employment agreement with salary, bonuses, and a "for cause" termination definition.
- Iovance placed Fischkoff on successive performance improvement plans in early 2017 and terminated him shortly after the second PIP expired; Fischkoff alleges he performed satisfactorily and was terminated to avoid paying contractual sums.
- Fischkoff filed suit asserting breach of contract, New York Labor Law claims, and related causes; he moved to amend his complaint to add a defamation claim based on statements in Iovance’s SEC Form 10‑Q and Form 10‑K that he was terminated "for cause."
- The SEC filings were mandatory federal disclosures; Fischkoff alleged the statements were false and defamatory, while Iovance argued the statements were absolutely privileged under New York common law.
- The central legal question was whether statements in routine SEC filings (10‑Q and 10‑K) are absolutely privileged as part of a judicial or quasi‑judicial proceeding such that a defamation claim would be futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proposed defamation claim is futile because statements are absolutely privileged | Fischkoff contends 10‑Q/10‑K statements are actionable and not shielded by absolute privilege | Iovance contends SEC filings are part of a quasi‑judicial process and thus entitled to absolute privilege under NY law | Denied — amendment allowed; absolute privilege does not apply because filings were not shown to be part of a quasi‑judicial proceeding |
| Whether absolute privilege applies broadly to mandatory filings to government/regulatory bodies | Fischkoff: privilege limited to communications made in judicial or quasi‑judicial proceedings with procedural safeguards to challenge statements | Iovance: argues SEC operates as quasi‑judicial body, so routine filings should be privileged | Court: privilege limited; must be tied to specific quasi‑judicial proceeding or process that affords a chance to contest statements |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard; disregard legal conclusions)
- Rosenberg v. MetLife, Inc., 8 N.Y.3d 359 (NY Court of Appeals describing absolute privilege for communications preliminary to quasi‑judicial proceedings)
- Stega v. N.Y. Downtown Hosp., 31 N.Y.3d 661 (limits absolute privilege to proceedings with adjudicative attributes and procedural safeguards)
- Empire Merchants, LLC v. Reliable Churchill LLLP, 902 F.3d 132 (pleading inference standard cited by court)