Scholz v. Epstein, 341 Conn. 1 (2021)

Citation: Scholz v. Epstein, 341 Conn. 1 (2021)
Parent Document: Scholz v. Epstein, 341 Conn. 1 (2021)
Jurisdiction: Connecticut (state)
Effective Date: 2021-09-29
Original Source: https://www.courtlistener.com/opinion/6244827/scholz-v-epstein/ ↗

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does not affect our analysis, because the statutory theft
claim is premised on these communications.
The plaintiff’s statutory theft claim also is distinguish-
able from a vexatious litigation claim because the ele-
ments of the claim do not provide any safeguards to
prevent inappropriate retaliatory litigation. See foot-
note 2 of this opinion. Unlike a claim of vexatious litiga-
tion,10 a claim of statutory theft does not provide the
same level of protection against the chilling effects of
a potential lawsuit. For example, the elements of statu-
tory theft contain nothing similar to the requirement
that the underlying proceeding terminated in the plain-
tiff’s favor; nor is there a requirement that the court
decide that the defendant lacked probable cause to
bring the proceeding. Rather, as with a claim of fraud,
‘‘the mere possibility’’ of a claim of statutory theft prem-
ised on obtaining property by false pretenses ‘‘could
expose attorneys to harassing and expensive litigation,
[and] would be likely to inhibit their freedom in making
good faith evidentiary decisions and representations
and, therefore, [could] negatively affect their ability to
act as zealous advocates for their clients.’’ (Footnote
omitted.) Simms v. Seaman, supra, 308 Conn. 551.
The plaintiff responds that a claim of statutory theft
does in fact contain stringent requirements that balance
competing policy considerations because it requires
10
We note that a lack of stringent policy balancing safeguards is not
detrimental to a plaintiff’s claim that the litigation privilege does not apply.
See footnote 2 of this opinion. For example, claims of abuse of process and
employer retaliation under General Statutes § 31-290a do not have these
safeguards, but this court has barred the application of the litigation privilege
because of other policy considerations. See MacDermid, Inc. v. Leonetti,
supra, 310 Conn. 633 (‘‘the elements of abuse of process, a tort [that] also
falls outside the scope of absolute immunity, are less stringent than the
elements of vexatious litigation’’). The plaintiff’s statutory theft claim is
distinguishable from claims of abuse of process and employer retaliation,
however, because the plaintiff has not set forth any policy considerations
that weigh in favor of barring the litigation privilege.
Page 52 CONNECTICUT LAW JOURNAL January 25, 2022

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