Judge Arthur Spatt
As part of an August 2011 settlement agreement resolving pending litigation between Officemax Inc. (OMI) and W.B. Mason, certain former OMI employees hired by W.B. Mason were barred from contacting their former OMI customers for a certain period of time. OMI’s 2012 lawsuit charging former account executive Cinotti with breaching his duty of loyalty and violating the Computer Fraud and Abuse Act was grounded on claims that he removed information about OMI’s customers from his laptop computer on the day he started working for W.B. Mason. Cinotti counterclaimed that he was defamed by OMI’s letter to Cinotti’s counselforwarded to W.B. Mason on Sept. 13, 2012 claiming Cinotti’s violation of the settlement agreement. The court granted OMI’s motion to dismiss Cinotti’s defamation counterclaim. In so doing the courtdiscussing Bisogno v. Borsa, Kenny v. Cleary and Lieberman v. Hoffmanfound the letter protected by the "litigation privilege." The letter was pertinent to prior litigation between OMI and W.B. Mason and their settlement agreement, and was also pertinent to possible future litigation between OMI and W.B. Mason.
