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*********************************************** 
DEUTSCHE BANK AG v. CAROLINE VIK ET AL.

(AC 44586)

Elgo, Clark and Lavine, Js.

Syllabus

The plaintiff bank sought to recover damages for alleged tortious interference with business expectancy and violation of the Connecticut Unfair

Trade Practices Act (CUTPA) (§ 42-110a et seq.), for the defendants’

actions in connection with the plaintiff’s attempt to collect amounts

owed to it by S Co., which the plaintiff alleged was a shell company

controlled by the defendant A. The plaintiff sought to enforce a judgment

it previously obtained against S Co. in a different jurisdiction and alleged

that the defendants deliberately interfered with a court-ordered sale

of certain assets to satisfy that judgment by fabricating a document

purporting to grant the defendant C the right of first refusal to acquire

the asset, shares in a software company. The trial court denied the

defendants’ motion to dismiss the plaintiff’s complaint, in which they

claimed that the court lacked subject matter jurisdiction because the

plaintiff’s allegations arose out of communications made and actions

taken in past judicial proceedings and were thus barred by the litigation

privilege. On the defendants’ appeal to this court, held:

1. The trial court erred in denying the defendants’ motion to dismiss the

plaintiff’s claim for tortious interference with business expectancy, as

the claim was predicated on communications made during and relevant

to prior judicial or quasi-judicial proceedings: multiple paragraphs of

the plaintiff’s complaint included allegations concerning the defendants’

participation in or commencement of legal actions or appeals, and the

fact that the plaintiff characterized the defendants’ alleged legal actions

as conduct that was meritless, frivolous or an abuse of the legal system

did not bring the conduct within the limited exception to the litigation

privilege, as the cause of action of tortious interference does not challenge the purpose of the underlying litigation procedure; moreover, the

plaintiff could have pursued other remedies to address the defendants’

claimed abuses, including an abuse of process or vexatious litigation

claim, but chose not to do so.

2. The trial court erred in denying the defendants’ motion to dismiss the

plaintiff’s claim asserting a violation of CUTPA; the plaintiff’s claim,

premised largely on the defendants’ alleged communications and conduct in prior judicial proceedings, including the alleged introduction of

false and/or fabricated evidence and the alleged filing of false and/or

frivolous actions and appeals, closely resembled CUTPA claims that

courts in Connecticut consistently have held are barred by the litigation privilege.

3. Although the plaintiff’s complaint included allegations unrelated to communications in the course of judicial proceedings, the litigation privilege

barred those claims, as the complaint was permeated with allegations

pertaining to the defendants’ communications and participation in prior

judicial proceedings, which were both central to the plaintiff’s claims and

inextricably intertwined with the allegations of extrajudicial conduct.

Argued February 14—officially released August 23, 2022

Procedural History

Action to recover damages for, inter alia, violation

of the Connecticut Unfair Trade Practices Act, and for

other relief, brought to the Superior Court in the judicial

district of Stamford-Norwalk, where the court, Hon.

Edward T. Krumeich II, judge trial referee, denied the

defendants’ motion to dismiss, and the defendants

appealed to this court. Reversed; judgment directed.

Monte E. Frank, with whom was Johanna S. Katz,

for the appellants (defendants).
Thomas D. Goldberg, with whom were John W. Cerreta and Jennifer M. Palmer, and, on the brief, Michael

Schoeneberger, David G. Januszewski, and Sheila C.

Ramesh, pro hoc vice, for the appellee (plaintiff).
Opinion

CLARK, J. The defendants, Alexander Vik (Alexander) and Caroline Vik (Caroline), appeal from the judgment of the trial court denying their motion to dismiss,

in which they asserted that the claims brought by the

plaintiff, Deutsche Bank AG, were barred by the litigation privilege. On appeal, the defendants claim that the

court improperly concluded that the litigation privilege

does not bar the plaintiff’s claims of tortious interference with business expectancy and violation of the

Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. We agree and, accordingly, reverse the judgment of the trial court.

For purposes of this appeal, we take the facts as

alleged in the complaint as true and construe them in

a manner most favorable to the pleader. See Tyler v.

Tatoian, 164 Conn. App. 82, 84, 137 A.3d 801, cert.

denied, 321 Conn. 908, 135 A.3d 710 (2016). The plaintiff’s complaint is comprised of 173 paragraphs of allegations relating to its long running attempt to collect on

amounts owed to it by nonparty Sebastian Holdings, Inc.

(SHI). The plaintiff alleges that SHI is a shell company,

which until 2015, was solely owned and controlled by

Alexander. Despite transferring his shares in SHI and

resigning from its board of directors, Alexander continues to dominate and control SHI today. Since 2008,

when SHI first became indebted to the plaintiff, Alexander, with other entities and individuals acting on his

behalf, allegedly has employed various tactics to

obstruct the plaintiff’s collection efforts. These include,

inter alia, concealing assets, fabricating documents, and

undertaking fraudulent transfers. The plaintiff alleges

that, in 2013, the Commercial Court, Queen’s Bench

Division of the High Court of Justice of England and

Wales (English court) rendered a judgment ordering

SHI to pay amounts due to the plaintiff (English judgment) and finding that Alexander had fabricated evidence and lied under oath. With interest, the plaintiff

alleges that the amount of the English judgment now

exceeds $300 million.

At all times, SHI has claimed that it lacks sufficient

assets to satisfy the English judgment. The plaintiff

alleges that, since 2013, it has vigorously sought to

enforce the English judgment by undertaking a global

enforcement effort, including the filing of actions in

Connecticut, New York, Delaware, Pennsylvania, the

United Kingdom, and Norway. Certain of these enforcement actions sought judgments declaring Alexander

personally liable for the English judgment as SHI’s alter

ego. The complaints in those actions also detail Alexander’s long history of shuffling and concealing assets

from the plaintiff.

The plaintiff alleges that, in 2008, SHI found itself

facing hundreds of millions of dollars in losses arising
from, among other things, risky trading on margin in

the foreign exchange market. As a result of these losses,

SHI faced margin calls from its prime broker, the plaintiff. Knowing that SHI faced large losses, the plaintiff

alleges that, in October, 2008, Alexander caused SHI to

transfer approximately $1 billion worth of assets out

of SHI. As a result of the October, 2008 transfers, the

plaintiff alleges that Alexander falsely claimed that SHI

had insufficient assets, leaving the plaintiff with an

unpaid debt of more than $235 million. The present

action concerns one such asset: shares in a Norwegian

software company, Confirmit AS (Confirmit). To that

end, the plaintiff alleges that, in 2008, Alexander wrongfully caused SHI to transfer the shares in Confirmit to

his personal account in order to keep those shares

beyond the plaintiff’s reach.

The plaintiff further alleges that the English court

found that the shares of Confirmit were one portion of

the approximately $1 billion of assets that Alexander

drained from SHI to avoid paying the plaintiff the

amount it is owed. The plaintiff claims that, in 2015,

Alexander again purported to transfer those same

shares, this time to his father, Erik Martin Vik (Erik),

while the shares were the subject of litigation with the

plaintiff. The plaintiff alleges that it sought an execution

lien on the Confirmit shares in 2016. Following a lengthy

legal battle, which included a full trial and appeals to

the Norwegian Supreme Court, the plaintiff alleges that

the Oslo Court of Probate, Bankruptcy, and Enforcement (Oslo enforcement court) invalidated both the

2008 and 2015 transfers of Confirmit shares. As a result,

the shares reverted to SHI and were thus subject to

enforcement. In April, 2016, the plaintiff filed a petition

with the Oslo enforcement court to execute a lien on

the Confirmit shares, which was ultimately granted by

the court. On March 8, 2017, the plaintiff filed a petition

seeking a forced sale of the Confirmit shares. Following

a two year postponement due to the pendency of

appeals regarding the execution lien, the plaintiff submitted a request to continue the enforcement process

of the Confirmit shares on May 27, 2019. The plaintiff

alleges that, on June 12, 2019, the enforcement officer

issued a decision to commence the sale, and, on July

8, 2019, named nonparty ABG Sundal Collier ASA (ABG)

as the sales assistant for the forced sale. Rather than

allow the sale of Confirmit shares to proceed, the plaintiff alleges that the defendants and related parties

engaged in a series of maneuvers designed to inject

doubt and uncertainty into the sales process. The plaintiff alleges that these tactics included manufacturing

false evidence, submitting a bad faith bid by Alexander

to acquire Confirmit, and, importantly for present purposes, commencing frivolous legal actions and appeals.

The plaintiff alleges that, among the most egregious

of these tactics, is the defendants’ fabrication of a document purporting to grant Alexander’s daughter, Caro-
line, a right of first refusal to acquire the Confirmit

shares (ROFR). The plaintiff alleges that, upon information and belief, the ROFR was forged and backdated

to enable the defendants to interfere with the courtordered sale of Confirmit. With this allegedly false document in hand, the plaintiff alleges that Caroline proceeded to commence litigation in the United States

District Court for the District of Connecticut against

ABG seeking to enjoin the Confirmit sale midway

through the bidding process. The District Court granted

an ex parte temporary restraining order (TRO), and

subsequently, with the consent of the parties, kept the

TRO in place until December 6, 2019, pending a decision

on Caroline’s application for a preliminary injunction.

The plaintiff alleges that, ‘‘[d]uring the proceedings in

the District Court, [Alexander] submitted two affidavits

in support of [Caroline’s] application for an injunction.

Those affidavits describe how [Alexander] personally

attempted to participate in the Confirmit sales process

and state that he had contacted ABG so that he could

be considered a potential buyer in the process.’’ After

the District Court denied her application for a preliminary injunction on December 4, 2019, the plaintiff

alleges that Caroline voluntarily dismissed her ‘‘frivolous action.’’ The plaintiff alleges that two days later,

on December 6, 2019, Caroline filed a separate but substantially similar petition for a preliminary injunction

with the Oslo enforcement court, asking the court to

stop any sale of the Confirmit shares that did not respect

the ROFR agreement.

In support of its tortious interference with business

expectancy claim, the plaintiff incorporates by reference the aforementioned allegations and further

alleges, inter alia, that the defendants brought ‘‘frivolous,’’ ‘‘meritless,’’ or ‘‘baseless’’ legal claims or appeals

in an effort to undermine or reverse the sale of Confirmit

sales. The plaintiff further alleges that the English judgment formed a business relationship between the plaintiff and SHI insofar as the English court determined

that SHI owed the plaintiff $235,646,355. The plaintiff

alleges that it has sought to realize this business expectation by enforcing the English judgment in various

jurisdictions, including in Connecticut. The plaintiff

alleges that Caroline’s lawsuits in Connecticut federal

court and Norway were ‘‘timed specifically to interfere

with the forced sale of the Confirmit shares and the

business expectations of [the plaintiff]. . . . The execution and attempted enforcement of [Caroline’s] sham

ROFR on which she based her requests for an injunction

was for the sole purpose of interfering with the forced

sale of Confirmit, and had no proper purpose or justification.’’ Among other allegations, the plaintiff alleges

that ‘‘[Alexander] is the decision maker behind other

nonparties’ actions relating to Confirmit. This includes

the continuous stream of meritless legal action that

[Erik] . . . on behalf of SHI . . . ha[s] filed in Nor-
way.’’ The plaintiff alleges that ‘‘[the] interference with

the business of Confirmit, whether through manipulating the board of directors or prolonging the enforcement lien with adverse effects, is cumulative, and the

ongoing legal battles are similarly detrimental.’’ The

plaintiff alleges that, as a result of the defendants’ intentional interference with the plaintiff’s business relationships and expectations, the market value of the Confirmit shares dropped from $150 million to $65 million.

In support of its CUTPA claim, the plaintiff incorporates all of its allegations in support of its tortious

interference claim and, additionally, alleges that SHI’s

persistent refusal to pay the English judgment has

forced the plaintiff to pursue multiple actions across

various jurisdictions to enforce it. The plaintiff alleges

that the defendants engaged in unfair methods of competition and unfair and deceptive acts to interfere with

the sale of the Confirmit shares by filing for injunctions

in both Connecticut and Norway on the false premise

that Caroline genuinely sought to exercise her purported ROFR. The plaintiff further alleges that Alexander attempted to use the bidding process for the Confirmit shares to gather confidential information about

the sales process and had no intention of following

through on a legitimate bid. It alleges that ‘‘[Alexander]

and his associates have targeted Confirmit, interfering

with its business through the intentional prolonging of

the enforcement lien and uncertainty of the company’s

ownership as well as through their continued and

obstructionist litigation.’’ The plaintiff alleges that the

defendants’ ‘‘conduct . . . constitutes a reckless indifference to and/or an intentional and wanton violation

of [the plaintiff’s] rights.’’

On October 22, 2020, in response to the plaintiff’s

complaint in the present case, the defendants filed a

motion to dismiss the action on the basis of the litigation

privilege. The defendants argued, inter alia, that the

court lacked subject matter jurisdiction because the

plaintiff’s allegations arise out of communications made

and actions taken in past judicial proceedings and are

thus barred by the litigation privilege. On December 18,

2020, the plaintiff filed its opposition to the defendants’

motion, arguing that there is no colorable basis for the

court to dismiss the complaint in its entirety and that

the motion should be denied.

On March 11, 2021, the court issued its memorandum

of decision denying the defendants’ motion to dismiss.

It concluded, inter alia, ‘‘[t]hat part of the alleged misconduct included filing sham lawsuits and meritless

appeals does not immunize [the] defendants’ alleged

conduct because the claims themselves are decidedly

different than a defamation claim. The claims do not

concern how the cases were litigated, or the words

used in communications by litigants or advocates, but

that the sham cases themselves were commenced and
maintained as part of a multifaceted scheme to avoid

enforcement of the judgment. These claims are not akin

to a defamation or fraud claim that focuses on communication of false information in the prosecution or

defense of a lawsuit, but rather they allege improper

use of the judicial system for purposes not intended to

further the course of justice but rather to pervert the

course of justice.’’ In short, the court stated that the

‘‘underlying purpose of absolute immunity does not

apply just as equally to the claims alleged as it does to

the tort of defamation; the claims alleged are not more

like defamation than vexatious litigation, but rather

share more with vexatious litigation, malicious prosecution and abuse of process as a perversion of justice in

support of objectives largely based on conduct outside

the courtroom designed to achieve aims not consistent

or achievable with lawful judicial remedies.’’ This

appeal followed.

The defendants argue that the trial court erroneously

concluded that the litigation privilege does not bar the

plaintiff’s tortious interference and CUTPA claims.

They contend that the court (1) misapplied binding

authority that makes clear that the plaintiff’s claims are

subject to the protection of the litigation privilege, (2)

erroneously determined that the plaintiff’s allegations

fell within the abuse of process exception to the privilege, despite the plaintiff not pleading an abuse of process claim, and (3) failed to recognize that the public

policy behind the litigation privilege applies with equal

force to the allegations in the plaintiff’s complaint,

regardless of the plaintiff’s allegations that the past

litigations were ‘‘meritless.’’ For the reasons that we

discuss herein, we agree with the defendants.1

We first set forth our standard of review. We review

the trial court’s ultimate legal conclusion and its

resulting denial of dismissal de novo. See Rioux v.

Barry, 283 Conn. 338, 343, 927 A.2d 304 (2007). In conducting this review, ‘‘we take the facts to be those

alleged in the complaint, construing them in a manner

most favorable to the pleader.’’ Beecher v. Mohegan

Tribe of Indians of Connecticut, 282 Conn. 130, 132,

918 A.2d 880 (2007). We are mindful that the doctrine

of absolute immunity, also referred to as the litigation

privilege, ‘‘implicates the court’s subject matter jurisdiction’’; Dorfman v. Smith, 342 Conn. 582, 594, 271 A.3d

53 (2022); and that ‘‘every presumption favoring jurisdiction should be indulged.’’ (Internal quotation marks

omitted.) Tyler v. Tatoian, supra, 164 Conn. App. 87.

Turning to the merits of the appeal, we begin with a

general overview of the litigation privilege. ‘‘Connecticut has long recognized the litigation privilege.’’ Simms

v. Seaman, 308 Conn. 523, 536, 69 A.3d 880 (2013). In

recent years, our Supreme Court has detailed the history of that privilege; see, e.g., id., 531–45; and has

applied it in a number of contexts. See, e.g., Dorfman
v. Smith, supra, 342 Conn. 585; Scholz v. Epstein, 341

Conn. 1, 3, 266 A.3d 127 (2021); MacDermid, Inc. v.

Leonetti, 310 Conn. 616, 617, 79 A.3d 60 (2013); Rioux

v. Barry, supra, 283 Conn. 340; Hopkins v. O’Connor,

282 Conn. 821, 823, 925 A.2d 1030 (2007). The litigation

privilege was first recognized in response to the need

to bar persons accused of crimes from suing their accusers for defamation. See Bruno v. Travelers Cos., 172

Conn. App. 717, 725, 161 A.3d 630 (2017). It has since

been applied to other causes of action, including claims

brought pursuant to CUTPA and claims of intentional

interference with contractual or beneficial relations.

See, e.g., Dorfman v. Smith, supra, 585 (litigation privilege applicable to plaintiff’s claims for breach of implied

covenant of good faith, negligent infliction of emotional

distress, and violation of CUTPA premised on business

practice of filing false discovery responses); Rioux v.

Barry, supra, 350 (‘‘absolute immunity does bar the

plaintiff’s claim of intentional interference with contractual or beneficial relations’’).

In its most basic form, the litigation privilege provides

that ‘‘communications uttered or published in the

course of judicial proceedings are absolutely privileged

so long as they are in some way pertinent to the subject

of the controversy.’’ (Internal quotation marks omitted.)

Hopkins v. O’Connor, supra, 282 Conn. 830–31. This

includes ‘‘statements made in pleadings or other documents prepared in connection with a court proceeding.’’

(Internal quotation marks omitted.) Scholz v. Epstein,

supra, 341 Conn. 28–29.

‘‘[T]he purpose of affording absolute immunity to

those who provide information in connection with judicial and quasi-judicial proceedings is that in certain

situations the public interest in having people speak

freely outweighs the risk that individuals will occasionally abuse the privilege by making false and malicious

statements.’’ (Internal quotation marks omitted.) MacDermid, Inc. v. Leonetti, supra, 310 Conn. 627. ‘‘[T]he

possibility of incurring the costs and inconvenience

associated with defending a [retaliatory] suit might well

deter a citizen with a legitimate grievance from filing

a complaint.’’ (Internal quotation marks omitted.) Craig

v. Stafford Construction, Inc., 271 Conn. 78, 95, 856

A.2d 372 (2004). ‘‘Put simply, absolute immunity furthers the public policy of encouraging participation and

candor in judicial and quasi-judicial proceedings. This

objective would be thwarted if those persons whom

the common-law doctrine was intended to protect nevertheless faced the threat of suit. In this regard, the

purpose of the absolute immunity afforded participants

in judicial and quasi-judicial proceedings is the same

as the purpose of the sovereign immunity enjoyed by

the state.’’ Chadha v. Charlotte Hungerford Hospital,

272 Conn. 776, 787, 865 A.2d 1163 (2005). As such,

‘‘courts have recognized absolute immunity as a defense

in certain retaliatory civil actions in order to remove
this disincentive and thus encourage citizens to come

forward with complaints or to testify.’’ Rioux v. Barry,

supra, 283 Conn. 344.

The litigation privilege is not without limits, however.

Our Supreme Court has held that certain causes of

action are not barred by the litigation privilege. See,

e.g., Simms v. Seaman, supra, 308 Conn. 541–43, 546

(discussing claims of vexatious litigation and abuse of

process). What generally distinguishes these causes of

action from those to which the privilege attaches is

that they ‘‘prohibit conduct that subverts the underlying

purpose of the judicial process. Specifically, these

causes of action prevent, or hold an individual liable

for . . . the improper use of the judicial process for

an illegitimate purpose, namely, to inflict injury upon

another individual in the form of unfounded actions.’’

MacDermid, Inc. v. Leonetti, supra, 310 Conn. 631.

These causes of action are treated differently in part

because of ‘‘restraints built into [them] by virtue of

[their] stringent requirements.’’2 Rioux v. Barry, supra,

283 Conn. 347–48; see also Scholz v. Epstein, supra,

341 Conn. 21 (‘‘[t]he plaintiff’s statutory theft claim . . .

is distinguishable from a vexatious litigation claim

because the elements of the claim do not provide any

safeguards to prevent inappropriate retaliatory litigation’’). For example, one element of a vexatious litigation claim is that the suit must have terminated in the

plaintiff’s favor.3 See Scholz v. Epstein, supra, 21.

‘‘Relevant to any determination of whether policy

considerations support applying absolute immunity to

any particular cause of action, [our Supreme Court] in

Simms identified the following factors: (1) whether the

alleged conduct subverts the underlying purpose of a

judicial proceeding, in a similar way to how conduct

constituting abuse of process and vexatious litigation

does; (2) whether the alleged conduct is similar in

essential respects to defamatory statements, inasmuch

as a defamation action is barred by the privilege; and

(3) whether the alleged conduct may be adequately

addressed by other available remedies.’’4

Id., 10–11. ‘‘In

examining the competing interests and public policies

at stake, our Supreme Court has focused on the need

to ensure candor from all participants in the judicial

process.’’ Tyler v. Tatoian, supra, 164 Conn. App. 90.

I

With these principles in mind, we begin by addressing

the defendants’ contention that the court improperly

concluded that the litigation privilege did not bar the

plaintiff’s tortious interference with business expectancy claim against the defendants. The defendants

argue, inter alia, that the trial court failed to follow

binding Supreme Court precedent that makes clear that

the litigation privilege bars such claims. We agree.

As this court has observed: ‘‘Our Supreme Court has
held that absolute immunity bars claims based on tortious interference with business and contractual relationships when the alleged conduct occurred during

the course of a judicial or quasi-judicial proceeding.’’

Law Offices of Frank N. Peluso, P.C. v. Rendahl, 170

Conn. App. 364, 367, 154 A.3d 584 (2017), citing Rioux

v. Barry, supra, 283 Conn. 351. In undertaking a careful

balancing of the competing interests and public policies

at stake, our Supreme Court in Rioux stated that the

elements of a tortious interference claim ‘‘simply do

not have the same stringency as those that are the

hallmark of the elements of a claim for vexatious litigation. For this reason, insofar as the balancing that

applies, this tort is more like defamation than vexatious

litigation. Therefore, the same balancing test applies to

it as applies to defamatory statements: if made in the

course of a judicial or quasi-judicial proceeding, they

are absolutely immune.’’ Rioux v. Barry, supra, 351.

In light of our Supreme Court’s holding in Rioux, it

is clear that the trial court’s judgment cannot stand.

The trial court’s conclusion that the litigation privilege

does not apply to the plaintiff’s tortious interference

claim because it is more ‘‘akin to claims for vexatious

litigation, abuse of process and malicious prosecution’’

is in direct conflict with our Supreme Court’s decision

in Rioux. In balancing the competing interests at stake,

our Supreme Court in Rioux concluded that absolute

immunity applies to such torts if the allegations supporting the claim are based on communications that took

place in the course of a judicial or quasi-judicial proceeding. Rioux v. Barry, supra, 283 Conn. 351.

Because the litigation privilege is applicable to claims

of tortious interference with business expectations if

the claim is premised on communications or statements

made in the course of prior judicial or quasi-judicial

proceedings, the principal question for the trial court

was whether the allegedly privileged communications

or statements were in fact made in the course of judicial

or quasi-judicial proceedings and relevant to the subject

of the controversy. See Hopkins v. O’Connor, supra,

282 Conn. 838 (if ‘‘the communications are uttered or

published in the course of judicial proceedings, even if

they are published falsely and maliciously, they nevertheless are absolutely privileged provided they are pertinent to the subject of the controversy’’). On appeal, the

plaintiff argues that its claims do not arise out of the

statements or communications made by the defendants

in litigation because it is challenging the defendants’

acts of filing certain actions and appeals. The plaintiff

thus contends that its claims are based on the defendants’ alleged wrongful conduct of filing frivolous and

meritless actions and appeals, not any communications

or statements in a judicial proceeding.

The defendants counter that the plaintiff has alleged

that they commenced ‘‘frivolous actions,’’ filed ‘‘mer-
itless appeals,’’ and manufactured ‘‘false evidence.’’

They note that the plaintiff alleges that Caroline’s filing

of an action seeking a temporary restraining order and

preliminary injunction resulted in an interference with

the business relations between the plaintiff and SHI.

The defendants argue that these allegations strike at

the very heart of the communications and actions

before the Oslo enforcement court in Norway, the Borgarting Court of Appeal, the Supreme Court of Norway,

and the United States District Court for the District of

Connecticut. In their view, there can be no question

that these actions fall within the scope of the litigation

privilege. We agree with the defendants.

At least 30 paragraphs of the plaintiff’s 173 paragraph

complaint include allegations concerning the defendants’ participation in or commencement of legal

actions or appeals. Although the plaintiff argues that

the act of filing an action or an appeal is not a communication in connection with a court proceeding, we can

think of no communication that is more clearly protected by the litigation privilege than the filing of a legal

action. The filing of a legal action, by its very nature,

is a communicative act. See, e.g., Scholz v. Epstein,

supra, 341 Conn. 28–29 (privilege applies to ‘‘every step

of the proceeding until [its] final disposition . . .

including to statements made in pleadings or other

documents prepared in connection with a court proceeding’’ (citation omitted; emphasis added; internal

quotation marks omitted)); Rioux v. Barry, supra, 283

Conn. 344 (‘‘courts have recognized absolute immunity

as a defense in certain retaliatory civil actions in order

to remove this disincentive and thus encourage citizens

to come forward with complaints or to testify’’ (emphasis added)).

Moreover, our case law does not speak about the

privilege solely in terms of communications, but also

in terms of conduct in the course of judicial or quasijudicial proceedings. See Simms v. Seaman, supra, 308

Conn. 568–69 (‘‘[w]e therefore conclude that the Appellate Court properly determined that attorneys are protected by the litigation privilege against claims of fraud

for their conduct during judicial proceedings’’ (emphasis added)); Hopkins v. O’Connor, supra, 282 Conn. 830

(‘‘[w]hether particular conduct is by its nature part of

or in furtherance of a judicial proceeding for the purposes of triggering absolute immunity, however,

depends on the particular facts and circumstances of

each case’’ (emphasis added)).

In support of its claim that the litigation privilege

applies only to communications and not conduct, the

plaintiff points to our Supreme Court’s decision in

MacDermid, Inc. v. Leonetti, supra, 310 Conn. 616. In

that case, the court concluded that absolute immunity

did not bar a claim of employer retaliation pursuant to

General Statutes § 31-290a5 based on the employer’s
filing of a lawsuit against the employee. Id., 617–18.

The plaintiff seems to argue that, on the basis of this

holding, the litigation privilege does not apply to the

act of filing a lawsuit. That is not an accurate reading

of MacDermid, Inc. The narrow issue in MacDermid,

Inc., was whether absolute immunity applied to an

alleged violation of § 31-290a predicated on an employer’s act of filing a lawsuit against an employee for the

employee’s exercise of his or her rights under Connecticut’s workers’ compensation law. Id., 625–26. In holding

that the litigation privilege did not apply, the court concluded that applying ‘‘absolute immunity under [those]

circumstances would serve only to incentivize retaliatory litigation and discourage employees from exercising their rights under the [Workers’ Compensation]

[A]ct, a situation the legislature clearly intended to prevent when it enacted § 31-290a.’’ Id., 640. Nothing in

MacDermid, Inc., suggests that the act of filing a lawsuit

in other contexts is beyond the scope of the litigation

privilege.

The plaintiff further contends that its complaint ‘‘does

not allege harm based on statements or communications uttered in the course of those proceedings, but

for the wrongful conduct of abusing the judicial system

to drive down the Confirmit shares’ sale price.’’ The fact

that the plaintiff characterizes the defendants’ alleged

legal actions as ‘‘frivolous’’ or ‘‘meritless’’ or as ‘‘abusing

the legal system’’ does not mean that it is beyond the

litigation privilege. As this court explained in Tyler,

‘‘[t]he fact that the plaintiffs characterized the defendant’s allegedly fraudulent conduct as an abuse of the

legal system does not mean that it falls within the limited exception’’ to the litigation privilege. Tyler v.

Tatoian, supra, 164 Conn. App. 93. Our Supreme Court

expanded on this in Dorfman, explaining that,

‘‘[a]lthough the plaintiff’s complaint contains allegations that the defendant, through its litigation conduct,

improperly used and abused the judicial process, unless

the plaintiff’s cause of action challenges the purpose

of the litigation or litigation procedure, these allegations

do not suffice to establish an improper use of the judicial system. A claim of abuse of process may be premised on the improper use of a particular judicial procedure. But allegations of the improper use of judicial

procedure do not satisfy the requirement that the plaintiff’s cause of action must itself challenge the purpose

of the underlying litigation or litigation procedure.’’

(Emphasis added.) Dorfman v. Smith, supra, 342 Conn.

598–99. Otherwise, ‘‘any plaintiff could pierce the litigation privilege with any cause of action by merely including allegations that a defendant’s conduct constituted

an abuse of the judicial system.’’6

Id., 599.

To reiterate, the fact that the plaintiff characterized

the defendants’ alleged conduct as meritless or frivolous or an abuse of the legal system does not bring it

within the limited exception to the privilege. Unlike
claims of vexatious litigation or abuse of process, the

cause of action of tortious interference with business

expectancy does not challenge the purpose of an underlying judicial proceeding.7

Indeed, our Supreme Court

in Rioux already applied the relevant factors to this

cause of action and concluded that absolute immunity

bars claims based on tortious interference with business and contractual relationships.

Lastly, we note that there are other remedies available to address claimed abuses like these. See Dorfman

v. Smith, supra, 342 Conn. 619 (‘‘there are other remedies available to deter the alleged conduct’’). The plaintiff, for example, could have brought an abuse of process or vexatious litigation claim to remedy or obtain

recourse for the behavior of which it complains. See

DeLaurentis v. New Haven, 220 Conn. 225, 264, 597

A.2d 807 (1991) (‘‘Parties or their counsel who behave

outrageously are subject to punishment for contempt

of the court. Parties and their counsel who abuse the

process by bringing unfounded actions for personal

motives are subject to civil liability for vexatious suit

or abuse of process.’’). The plaintiff chose not to do so.8

In sum, because the plaintiff’s tortious interference

with business expectancy claim is predicated on communications made during and relevant to prior judicial

or quasi-judicial proceedings, the plaintiff’s claim is

barred by the litigation privilege.

II

We turn next to the plaintiff’s count asserting a violation of CUTPA. In support of its CUTPA claim, the

plaintiff incorporates by reference the same allegations

it makes in support of its tortious interference with

business expectancy claim and further alleges that,

among other things, the ‘‘defendants engaged in unfair

methods of competition and unfair and deceptive acts

to interfere with this sale of the Confirmit shares. They

did so by filing for injunctions in both Connecticut and

Norway on the false premise that [Caroline] genuinely

sought to exercise her purported [ROFR].’’ The plaintiff

further alleges, inter alia, that ‘‘[Alexander] and his associates have targeted Confirmit, interfering with its business through the intentional prolonging of the enforcement lien and uncertainty of the company’s ownership

as well as through their continued obstructionist litigation.’’

The parties make substantially similar arguments

regarding this claim as they do with respect to the

tortious interference claim. In particular, the defendants argue that the litigation privilege bars the plaintiff’s CUTPA claim because it is premised on communications and conduct in prior litigation. Citing to

numerous cases, the defendants argue that our courts

uniformly have held that the litigation privilege applies

to CUTPA claims based on communications made and
actions taken during the course of past litigation. The

plaintiff counters that the trial court properly found

that the litigation privilege does not bar the plaintiff’s

claim because the claims do not arise out of the content

of statements or communications by the defendants in

litigation. For largely the same reasons that we concluded in part I of this opinion that the litigation privilege bars the plaintiff’s tortious interference claim, we

conclude that the plaintiff’s CUTPA claim also is barred

by the privilege.

Courts in Connecticut consistently have applied the

litigation privilege to CUTPA claims based on communications made during and relevant to a prior judicial

proceeding. See, e.g., Dorfman v. Smith, supra, 342

Conn. 618 (CUTPA claim based on violation of Connecticut Unfair Insurance Practices Act barred by litigation

privilege); Simms v. Seaman, supra, 308 Conn. 561–62

(discussing federal case law that consistently has held

that CUTPA claims premised on false communications

made during and relevant to underlying judicial proceeding are barred by litigation privilege); Bruno v.

Travelers Cos., supra, 172 Conn. App. 727–29 (CUTPA

claim against insurance companies was barred by litigation privilege); Tyler v. Tatoian, supra, 164 Conn. App.

86–87, 93–94 (CUTPA claim against attorney for communications made in course of prior judicial proceeding

was barred by litigation privilege).9

Most recently, in Dorfman v. Smith, supra, 342 Conn.

582,10 our Supreme Court considered whether a violation of CUTPA, based on a violation of the Connecticut

Unfair Insurance Practices Act (CUIPA), General Statutes § 38a-815 et seq., was subject to the litigation privilege. The plaintiff argued that absolute immunity would

undermine the legislative intent of CUIPA, which the

plaintiff argued was to hold insurers accountable for

misrepresenting facts relating to coverage issues. Id.,

617. The court observed that there was minimal case

law regarding the litigation privilege as it pertains to a

claim brought under CUIPA, but pointed to the wealth

of case law regarding the applicability of the litigation

privilege to CUTPA claims. Id., 618. In light of that

precedent, the court held that ‘‘the litigation privilege

bars CUTPA claims, like the claim at issue, premised

solely on general allegations of intentionally false discovery responses . . . .’’ Id., 619. It further stated: ‘‘We

recognize that the legislature intended to prohibit certain unfair and deceptive business practices by enacting

CUTPA and CUIPA, but the plaintiff has not cited, and

we have not discovered, any provision of these statutes

that explicitly abrogates the common-law litigation privilege, which, historically, has been applied to false and

malicious statements made during and relevant to judicial proceedings.’’ Id., 620. The court qualified its holding by stating that ‘‘[t]his does not mean, however, that

a defendant enjoys absolute immunity from all CUTPA

claims under the litigation privilege, even those prem-
ised on a violation of CUIPA,’’ leaving open the possibility that other CUTPA claims may not be barred by

absolute immunity under the privilege. Id.

On the basis of our review of the specific allegations

advanced in support of the plaintiff’s CUTPA claim, in

addition to our case law, including our Supreme Court’s

recent decision in Dorfman, we conclude that absolute

immunity bars the plaintiff’s CUTPA claim. In Dorfman,

our Supreme Court focused its analysis on whether

the ‘‘legislature intended to abrogate a party’s absolute

immunity from CUTPA claims based on a business practice of filing false discovery responses.’’ Id., 618. In

discovering no provision in CUTPA or CUIPA ‘‘that

explicitly abrogate[d] the common-law litigation privilege’’ with respect to false and malicious statements

made during and relevant to judicial proceedings, the

court concluded that the litigation privilege barred the

plaintiff’s CUTPA-CUIPA claim. Id., 620. Although the

court left open the possibility that the litigation privilege

may not bar other CUTPA claims, it did so in the context

of its consideration of whether a particular set of allegations in support of a CUTPA claim might constitute a

claim for which the legislature intended to abrogate the

privilege. See id.

Here, while making general public policy arguments

for why the litigation privilege should not apply in this

instance, the plaintiff does not argue that the legislature

intended to abrogate the litigation privilege for the type

of CUTPA claim that it has brought. The plaintiff’s

CUTPA claim in this case, which is premised largely on

the defendants’ alleged communications and conduct

in prior judicial proceedings, including the alleged introduction of false and/or fabricated evidence and the

alleged filing of false and/or frivolous actions and

appeals, closely resembles the CUTPA claims that our

courts routinely have held are barred by the litigation

privilege. See, e.g., id., 618; Bruno v. Travelers Cos.,

supra, 172 Conn. App. 727–29; Tyler v. Tatoian, supra,

164 Conn. App. 86–87, 93–94; see also footnote 9 of this

opinion. As such, we discern no appropriate basis for

treating the plaintiff’s CUTPA claim in this case differently than courts consistently have treated CUTPA

claims in other cases, especially when other available

remedies exist to deter the alleged conduct. See part I

of this opinion.

Because we conclude that the litigation privilege is

applicable to the plaintiff’s CUTPA claim in this case,

and because the plaintiff’s CUTPA claim is premised in

large part on communications made during and relevant

to prior judicial proceedings; see part I of this opinion;

we conclude that it, too, is barred by the litigation

privilege.

III

As a final matter, the plaintiff argues that the litigation
privilege does not bar its claims because they include

allegations unrelated to communications made in the

course of judicial proceedings. Although the complaint

does include allegations of extrajudicial conduct, the

complaint is permeated with allegations pertaining to

the defendants’ communications and participation in

prior judicial proceedings, which are both central to

the plaintiff’s claims and inextricably intertwined with

the allegations of extrajudicial conduct. Under these

circumstances, we conclude that the plaintiff’s claims

are barred by the litigation privilege. To hold otherwise

would permit parties to proceed with claims that otherwise are barred by the litigation privilege simply by

adding allegations concerning conduct that is outside

the privilege. Such a result would significantly undermine the objective the privilege was designed to promote.11 See Chadha v. Charlotte Hungerford Hospital,

supra, 272 Conn. 786 (like sovereign immunity, doctrine

of absolute immunity ‘‘protects against suit as well

as liability—in effect, against having to litigate at all’’

(emphasis added; internal quotation marks omitted)).

The judgment is reversed and the case is remanded

with direction to grant the defendants’ motion to dismiss the plaintiff’s complaint in its entirety.

In this opinion the other judges concurred.

1 The plaintiff claims that this court should dismiss the appeal for want

of jurisdiction because the defendants have not offered any basis for dismissing the action as a whole. They contend that the defendants’ arguments

‘‘refer to only 7 of the complaint’s 173 paragraphs.’’ We are not persuaded.

The defendants’ motion to dismiss clearly pertains to the entire complaint,

as they requested that the court ‘‘[dismiss] the case in its entirety or strik[e]

the offending allegations.’’ The crux of the defendants’ argument is that the

plaintiff’s complaint improperly centers around prior litigation and they are

thus absolutely immune from suit. The defendants have set forth a colorable

claim of absolute immunity. See Chadha v. Charlotte Hungerford Hospital,

272 Conn. 776, 787, 865 A.2d 1163 (2005) (like colorable claim of sovereign

immunity, to protect against threat of suit, colorable claim of absolute

immunity based on participation in judicial and quasi-judicial proceedings

gives rise to immediately appealable final judgment). As a result, there are

no grounds for dismissing the defendants’ appeal.

2 We note that a lack of built-in restraints by virtue of a cause of action’s

stringent requirements is not always dispositive of whether the litigation

privilege applies to a particular claim. See MacDermid, Inc. v. Leonetti,

supra, 310 Conn. 630–31 (absolute immunity did not bar claim of employer

retaliation). Nevertheless, whether a cause of action has built-in safeguards

that protect against inappropriate retaliatory litigation remains a factor. See

Scholz v. Epstein, supra, 341 Conn. 21 (‘‘[u]nlike a claim of vexatious litigation, a claim of statutory theft does not provide the same level of protection

against the chilling effects of a potential lawsuit’’ (footnote omitted)).

3

‘‘Vexatious litigation requires a plaintiff to establish that: (1) the previous

lawsuit or action was initiated or procured by the defendant against the

plaintiff; (2) the defendant acted with malice, primarily for a purpose other

than that of bringing an offender to justice; (3) the defendant acted without

probable cause; and (4) the proceeding terminated in the plaintiff’s favor.’’

Rioux v. Barry, supra, 283 Conn. 347.

4 These factors apply regardless of whether the action is against an attorney, party opponent, or witness. See Dorfman v. Smith, supra, 342 Conn.

592 n.3.

5 General Statutes (Rev. to 2013) § 31-290a provides in relevant part: ‘‘(a)

No employer who is subject to the provisions of this chapter shall discharge,

or cause to be discharged, or in any manner discriminate against any

employee because the employee has filed a claim for workers’ compensation

benefits or otherwise exercised the rights afforded to him pursuant to the
provisions of this chapter.

‘‘(b) Any employee who is so discharged or discriminated against may

. . . (1) Bring a civil action in the superior court . . . for the reinstatement

of his previous job, payment of back wages and reestablishment of employee

benefits to which he would have otherwise been entitled if he had not been

discriminated against or discharged and any other damages caused by such

discrimination or discharge. The court may also award punitive damages.

Any employee who prevails in such a civil action shall be awarded reasonable

attorney’s fees and costs to be taxed by the court . . . .’’ See also MacDermid, Inc. v. Leonetti, supra, 310 Conn. 617–18 n.1.

6

In Scholz, our Supreme Court further stated: ‘‘[T]o the extent the plaintiff

is arguing that he alleged in his complaint that the defendant improperly

used the courts, in that the defendant’s conduct in the underlying litigation

constituted an abuse of process, such an allegation is not sufficient to bar

the litigation privilege, but, rather, the plaintiff was required to, but did not,

set forth sufficient allegations to establish a cause of action for abuse of

process.’’ Scholz v. Epstein, supra, 341 Conn. 15 n.5.

7

It bears mentioning that many, if not the majority, of the plaintiff’s

allegations alleging frivolous or meritless litigation arise out of lawsuits

commenced by the plaintiff itself. The complained of litigation primarily

concerns the defendants’ conduct in defense of those lawsuits and the

prosecution of appeals. Thus, the majority of the allegations do not concern

the defendants’ use of the legal process against the plaintiffs in order to

accomplish a purpose for which it was not designed; rather, they largely

concern the defendant’s participation in litigation the plaintiff initiated.

8 At oral argument before this court, the plaintiff’s counsel argued that

the complaint set forth the necessary allegations to support an abuse of

process claim. A simple review of the plaintiff’s complaint, however, discloses that it did not assert such a claim. The plaintiff’s two count complaint

clearly captions its claims ‘‘Tortious Interference with Business Expectancy’’

and ‘‘Violation of the Connecticut Unfair Trade Practices Act.’’

9 Connecticut federal courts similarly have concluded that the litigation

privilege bars CUTPA causes of actions that are premised on communications made during prior litigation. See, e.g., Bailey v. Interbay Funding,

LLC, Docket No. 3:17-CV-1457 (JCH), 2018 WL 1660553 (D. Conn. April 4,

2018); Weldon v. MTAG Services, LLC, Docket No. 3:16-CV-783 (JCH), 2017

WL 776648 (D. Conn. February 28, 2017); Costello v. Wells Fargo Bank

National Assn., Docket No. 16-CV-1706 (VAB), 2017 WL 3262157 (D. Conn.

July 31, 2017), aff’d, 739 Fed. Appx. 77 (2d Cir. 2018).

10 Dorfman was decided after oral argument in this appeal. Following oral

argument, both the plaintiff and the defendants filed notices of supplemental

authority pursuant to Practice Book § 67-10 on April 13, 2022.

11 Because the issue was not raised or decided below, we express no view

as to whether the complaint, in the absence of the offending allegations, is

sufficient to state claims for tortious interference with business expectancy

or a violation of CUTPA.