685 F.Supp.3d 216
S.D.N.Y.2023Background
- Plaintiff Robert D. Press founded TCA Fund Management; defendant Patrick J. Primavera was hired as Managing Director of TCA’s New York office (Sept. 2016–2019) and managed investment-banking activities and reporting.
- In Jan. 2020 a whistleblower complaint to the SEC prompted at‑least parallel internal and SEC investigations into TCA; SEC filed an injunction complaint against TCA on May 11, 2020.
- On Dec. 22, 2020 Primavera submitted a declaration to the SEC that Press alleges falsely blamed Press for Primavera’s own misconduct and contained defamatory assertions about TCA’s investment‑banking operations.
- Press alleges reputational harm and that he was compelled to settle with the SEC (SEP 30, 2021 SEC Order instituting administrative proceedings) without admitting or denying allegations.
- Primavera moved to dismiss under Rule 12(b)(6), arguing absolute privilege for statements made in the course of a quasi‑judicial proceeding; the court took judicial notice of the public SEC filings and denied the motion.
Issues
| Issue | Press’s Argument | Primavera’s Argument | Held |
|---|---|---|---|
| Choice of law | Apply New York law because misconduct occurred in NY and defendant worked there | Apply Florida or New Jersey law; defendant urged Florida law | Florida law governs (Press domiciled in FL; no allegation of national publication) |
| Judicial notice of SEC documents | Opposed considering SEC filings and injunction complaint as extrinsic | Asked court to take judicial notice of the injunction complaint and SEC Order | Court took judicial notice of the filings’ existence and filing dates (not their truth) |
| Litigation privilege for SEC communications | Declaration not made in a quasi‑judicial setting with safeguards; privilege not clearly applicable; malice alleged | Statements to SEC are absolutely privileged as made in quasi‑judicial/administrative proceeding | Dismissal denied: record ambiguous as to whether absolute or qualified privilege applies; factual development required |
Key Cases Cited
- Rosenberg v. MetLife, Inc., 8 N.Y.3d 359 (N.Y. 2007) (absolute privilege can protect communications made in preliminary steps of quasi‑judicial process)
- Hawkins v. Harris, 141 N.J. 207 (N.J. 1995) (absolute privilege extends to communications connected with judicial proceedings, including pretrial investigations)
- Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992) (qualified privilege applies to preliminary investigations in a criminal context)
- DelMonico v. Traynor, 116 So. 3d 1205 (Fla. 2013) (qualified privilege for out‑of‑discovery statements; plaintiff must prove express malice to overcome privilege)
- Gandy v. Trans World Computer Tech. Grp., 787 So. 2d 116 (Fla. Dist. Ct. App. 2001) (affidavits filed in response to administrative inquiry protected by absolute privilege)
- Lucia v. SEC, 138 S. Ct. 2044 (U.S. 2018) (describing SEC administrative process and availability of judicial review)
- Kinsey v. N.Y. Times Co., 991 F.3d 171 (2d Cir. 2021) (choice‑of‑law principles for defamation actions; domicile presumption and national publication exception)
- Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406 (2d Cir. 2008) (courts may judicially notice public filings for non‑truth purposes)