Because Southern California companies have enough to worry about what with employment lawsuits, traffic, and the ever-present possibility of a light sprinkle, it is crucial to avoid any mistakes that could expose your company to liability in the dissemination of a press release.
As in life, the general rule in drafting a press release is to stick with hard, true facts. For example, while you may be eager to publicize the details of a pending lawsuit against your opposing party, sticking to the fact of the lawsuit alone is enough to give the readers the information they need to seek out the information for themselves and make their own conclusions. Publicizing the underlying details of a particular lawsuit and condemning the actions of the other side, on the other hand, unnecessarily place your company at risk for defamation liability, as well as other business-related torts such as tortious business interference and trade libel.
Importantly, while the litigation privilege under Civil Code section 47(b) does provide broad protection against defamation liability for any statements made “in the initiation or course of” any legal proceeding, there is no blanket protection afforded statements regarding a legal proceeding. In fact, California courts have made clear that sending a press release regarding a pending company lawsuit to industry professionals with no connection to the lawsuit, is not an act in furtherance of or “in the initiation or course of” a legal proceeding.
Thus, the purpose of a press release regarding a pending company lawsuit should not be to market your company’s goods or services, or to attack the other party. Rather, the purpose of such a press release should be to report verifiable facts regarding the existence of the lawsuit itself, and to “clear the air” in your industry regarding a pending lawsuit. This nuanced distinction is important to consider before you attempt to litigate your case in the press because at the end of the day, there are no statutory or constitutional protections for false, commercial speech directed to the public.