Daniel Szalkiewicz & Associates, P.C., et al. v. Vivian Liu (also known as Vivian Xuanfei Liu, also known as Xuanfei Liu)
Attorneys and Parties
Brief Summary
Dispute between a law firm and a former client over negative online reviews and a domain name using the attorney's personal name; issues include attorney-client privilege waiver, New York anti-SLAPP, and federal cybersquatting/cyberpiracy.
The trial court found defendant waived attorney-client privilege by selectively disclosing privileged communications, denied defendant's motion to strike filings, allowed plaintiffs to amend (including a prompt correction), and denied defendant's motion to dismiss.
On appeal, only the tortious interference claims were dismissed; all other rulings were affirmed.
Tortious interference claims lacked essential elements (no identified contract or targeted interference and conduct not solely malicious). Anti-SLAPP applied to claims arising from online reviews and the domain, triggering CPLR 3211(g)(1) [anti-SLAPP special motion to dismiss standard requiring the plaintiff to show a substantial basis in law], under which tortious interference failed but federal cyber statutes had a triable basis. Defendant waived privilege by placing attorney advice at issue and selectively disclosing communications; limited invasion of privilege was therefore permitted to test the claims. Other claims (intentional infliction of emotional distress and Civil Rights Law § 79-n) were not based on public statements in a public forum and were not addressed on the merits by defendant, so they were not dismissed.
Background
Plaintiffs, a law firm and related parties, sued a former client, Vivian Liu, alleging she posted negative online reviews and registered a website using the individual plaintiff attorney's name as the domain, asserting tortious interference, claims under federal cyber statutes, and other torts. Defendant moved to dismiss and sought to strike filings as violating attorney-client privilege, while plaintiffs sought to amend and argued defendant had waived privilege by publicly filing communications about counsel's advice.
Lower Court Decision
The Supreme Court, New York County, held that defendant waived the attorney-client privilege by selectively disclosing and placing counsel's advice in issue, denied defendant's motion to strike under CPLR 3024(b) [motion to strike scandalous or prejudicial matter], allowed plaintiffs to amend as of right under CPLR 3025(a) [amendment of pleadings as of right] and to further amend under CPLR 3025(b) [leave to amend], and denied defendant's motion to dismiss while applying the pending dismissal motion to the operative amended complaint.
Appellate Division Reversal
The Appellate Division modified by dismissing the tortious interference with contract and tortious interference with prospective economic advantage claims for failure to state a claim. The court otherwise affirmed: (1) privilege was waived by defendant’s selective disclosure and issue-injection; (2) the motion to strike was properly denied; (3) amendment rulings were proper and the motion to dismiss was correctly applied to the amended complaint; (4) anti-SLAPP applied to claims based on online reviews and the domain, requiring plaintiffs to show a substantial basis in law under CPLR 3211(g)(1) [anti-SLAPP special motion to dismiss standard requiring the plaintiff to show a substantial basis in law] and Civil Rights Law § 76-a(1) [defines actions involving public petition or participation], which plaintiffs failed to do for tortious interference but satisfied for the federal claims; and (5) the federal cyber claims presented triable issues regarding intent to profit under 15 USC § 8131(a) [cyberpiracy protection for personal names—prohibits registering a domain name with the intent to profit from another's personal name] and bad faith under 15 USC § 1125(d) [Anticybersquatting Consumer Protection Act—cybersquatting with bad-faith intent]. The court declined to dismiss claims for intentional infliction of emotional distress and Civil Rights Law § 79-n, noting they were not based on public statements in a public forum and were not substantively challenged.
Legal Significance
The decision reinforces that selective disclosure of privileged communications in public filings waives attorney-client privilege and can justify limited discovery into those communications. It confirms the anti-SLAPP framework applies to online reviews and domain-based speech targeting a business, imposing an elevated burden on plaintiffs at the pleadings stage to demonstrate a substantial basis in law. It also underscores strict pleading requirements for tortious interference, including identification of a specific contract or targeted third party and the need to show conduct motivated solely by malice for prospective advantage claims, while recognizing the viability of federal cybersquatting and personal-name cyberpiracy claims at an early stage.
On an anti-SLAPP motion, generalized allegations of reputational harm from online reviews are insufficient to sustain tortious interference claims, especially without specific third-party targets or solely malicious conduct; selective disclosure waives privilege, and federal cybersquatting/personal-name cyberpiracy claims can proceed where intent to profit and bad faith are plausibly shown.