Sued for Sending a Demand Letter or Filing a Lawsuit? Utah’s Judicial Proceedings Privilege and Anti-SLAPP Law

The pattern is familiar. Someone believes property was taken from them unfairly. Their lawyer writes to the auction house or buyer holding it and says ownership is disputed. A few days later, they sue. The suit fails. Then the other side files its own case, for tortious interference and injurious falsehood, built entirely on the demand letters and the lawsuit.

Can that second case go forward? In Utah, usually not. Communications made in or in contemplation of a judicial proceeding are absolutely privileged, and the privilege bars every claim that arises from them. Losing a lawsuit is not a tort.

Since 2023, Utah has also given defendants a faster way to make that point: a special motion under the state’s anti-SLAPP statute that stops the case, gets a hearing within weeks, and shifts the defendant’s fees when it succeeds.

1. The privilege is absolute

Judges, jurors, witnesses, litigants, and counsel in judicial proceedings have an absolute privilege against defamation (Allen v. Ortez). The rationale is the integrity of the judicial process: participants must be free to speak openly, and they will not if every statement invites a later lawsuit.

Absolute means absolute. A qualified privilege can be defeated by showing malice or bad faith. An absolute privilege cannot be defeated by any showing of improper motive (Price v. Armour). The Utah Supreme Court has explained that it frees participants from the fear that taking part will expose them to later legal action.

2. It reaches pre-suit demand letters

The privilege does not start when the complaint is filed. It covers communications preliminary to a proposed proceeding if they bear some relationship to the cause or subject matter involved (DeBry v. Godbe). In Krouse v. Bower, the Utah Supreme Court applied it to an attorney’s pre-suit demand letter, holding that the privilege extends to statements made before filing because it is meant to encourage reasonable efforts to resolve disputes first.

That reasoning traces back decades. Once lawyers are involved, settlement depends on parties and counsel being able to state their positions frankly (Knight v. Patterson, relied on in Krouse). A letter telling the party holding disputed property that ownership is contested, sent days before the suit is filed, is the textbook case.

3. It bars every claim built on the same conduct

Plaintiffs try to avoid the privilege by relabeling. It does not work. Utah has extended the privilege beyond defamation to all claims arising from the same statements (Moss v. Parr Waddoups Brown Gee & Loveless, drawing on Bennett v. Jones, Waldo, Holbrook & McDonough). The Utah Supreme Court has applied it to intentional interference with business relations (Price), intentional infliction of emotional distress (DeBry), and slander of title (Hansen v. Kohler). In Hansen, the claim was built on a recorded lis pendens; the Court treated the notice as a republication of the pleadings and held it privileged for the same reason the pleadings were.

Moss also extended the privilege from statements to an attorney’s conduct in representing a client, and held that it barred every claim against the law firm there.

4. Adjectives are not allegations

A complaint trying to get around the privilege will be full of adjectives. Frivolous. Baseless. Extortionate. A scam. None of it matters. If characterizing litigation as frivolous were enough to defeat the privilege, it would not be absolute; every plaintiff could plead around it with inflammatory language. The question is not why the defendant sent the letters or filed suit. It is what the defendant did. Moss requires pleaded facts, not characterizations, and it affirmed dismissal where the complaint lacked allegations about the defendants’ intentions, statements, or actions.

5. The claims usually fail on their own elements too

The privilege is the cleanest defense. It is rarely the only one.

Tortious interference. Utah requires interference by improper means, and only improper means (Eldridge v. Johndrow, which eliminated the old improper-purpose alternative). Improper means is conduct contrary to law: violations of statutes, regulations, recognized common-law rules, or an established standard of a trade or profession (Eldridge; C.R. England v. Swift Transportation Co.). Privileged conduct is not contrary to law; that is what a privilege is. Truthfully telling someone a dispute exists is not improper means either (Restatement (Second) of Torts § 772). And filing a lawsuit, even a losing one, is not improper means unless it amounts to abuse of process, which requires conduct beyond the process itself corroborating an improper purpose (Hatch v. Davis). Suing someone and losing is lawful.

Slander of title and injurious falsehood. The plaintiff must prove publication of a disparaging statement, falsity, malice, and special damages (Bass v. Planned Management Services, Inc.). Each element is a problem for a claim built on litigation:

• • Falsity. Saying ownership is disputed is true when the speaker is disputing it and sues on it days later. Allegations in a complaint are contentions awaiting adjudication, not statements of fact.
• • Malice. Malice requires actual knowledge that the statement was false, and a good-faith filing, even a mistaken one, is not actionable (Dillon v. Southern Management Corp. Retirement Trust). Within the privilege, even false statements made with ill motives are not actionable (O’Connor v. Burningham).
• • Special damages. General or presumed damages do not count. The plaintiff must show realized, liquidated loss, such as a lost sale or a sale at a reduced price (First Security Bank v. Banberry Crossing; Valley Colour, Inc. v. Beuchert Builders, Inc.). Attorney fees qualify only if incurred to clear the cloud on title, not to prosecute the slander case (Bass; Neff v. Neff). Delay in receiving money is a prejudgment-interest question on a winning claim, not special damages (Kraatz v. Heritage Imports).

Pleading matters here as well. Special damages must be specifically stated under Utah R. Civ. P. 9(h), and the Utah Supreme Court recently restated that consequential damages ordinarily must be pleaded to be recovered (Western Mortgage & Realty Co. v. Walker). A complaint that alleges only that the plaintiff was injured, or that it incurred fees bringing the very lawsuit, has not pleaded special damages.

6. Raising it early: Rule 12(c)

When the complaint and its own exhibits show that everything alleged is a demand letter or a lawsuit, the privilege can be decided on the pleadings. A Rule 12(c) motion invites the court to consider both the complaint and the answer (Moss), along with exhibits attached to the complaint, and Utah courts have resolved affirmative defenses on a motion for judgment on the pleadings when the pleadings contain everything needed (Francis v. State).

Expect a waiver argument if the answer did not name the privilege. There are strong responses. The absolute privilege negates elements the plaintiff must prove, malice and improper means, rather than admitting them and offering an excuse, so it is a denial governed by Rule 8(b), not a Rule 8(c) affirmative defense. Failure to state a claim is expressly excepted from Rule 12(h) waiver and may be raised by motion for judgment on the pleadings, and the Utah Supreme Court has held that such a defense may be raised any time before the claim is decided (Mack v. Utah State Department of Commerce). And in Mathews v. McCown, the Court acknowledged that its language on privilege as an element versus a defense has not been consistent, while confirming that an affirmative defense may be decided on a motion for judgment on the pleadings when the pleadings contain the information needed.

7. Where the privilege ends

The privilege has edges, and Moss drew them. It can be lost when an attorney acts outside the scope of the representation, acts solely for the attorney’s own interests, or commits fraud or otherwise acts in bad faith. Abuse of process and malicious prosecution remain available, but against an attorney only if the attorney acted outside the scope of the representation or for the attorney’s own interests.

Each of those limits is framed around the lawyer’s role. Applying them to a party is harder. A litigant always acts in the litigant’s own interest; that is the point of litigation. An unpublished, divided Tenth Circuit decision has applied the Moss limits to a party (Peterson v. XPO Logistics, Inc.), but it does not bind Utah courts, and the dissent there made exactly this point.

8. The second layer: Utah’s anti-SLAPP statute

The privilege answers whether the claim can succeed. Utah’s Uniform Public Expression Protection Act answers how fast it ends and who pays for it. The Act took effect in 2023, replacing a much narrower earlier statute, and it applies to causes of action asserted on or after May 3, 2023 (Utah Code § 78B-25-113).

What it covers. The Act applies to a claim based on a person’s communication in a judicial proceeding, a communication on an issue under consideration or review in a judicial proceeding, or the exercise of rights of speech, press, assembly, petition, or association on a matter of public concern (§ 78B-25-102(2)). Read those categories against a retaliatory tort suit. A complaint is a communication in a judicial proceeding. A public statement about a pending case is a communication on an issue under review in one. A pre-suit demand letter is a closer fit under the text, but the privilege covers it either way, and a letter that also addresses a matter of public concern can fall within the third category. The exceptions are narrow: claims against government actors in an official capacity, certain government public-safety enforcement actions, and claims against a business arising from communications about its own goods or services (§ 78B-25-102(3)). The Act is to be broadly construed to protect speech and petitioning (§ 78B-25-111).

How it works.

• • Deadline. The special motion for expedited relief is due within 60 days after service of the pleading asserting the claim, or later on a showing of good cause (§ 78B-25-103).
• • Everything stops. Filing the motion stays all other proceedings between the moving and responding parties, including discovery and pending motions. Limited discovery is allowed only if a party shows that specific information is necessary to the motion and not otherwise reasonably available (§ 78B-25-104(1), (4)).
• • Speed. The court hears the motion within 60 days after it is filed, unless it allows limited discovery or finds good cause for a later hearing, and rules within 60 days after the hearing (§§ 78B-25-105, -108).
• • The test. The court considers the pleadings and the kind of evidence it could consider on summary judgment (§ 78B-25-106). It must dismiss with prejudice if the Act applies, no exception applies, and either the plaintiff fails to establish a prima facie case on each element of the claim, or the defendant shows that the complaint fails to state a claim or that there is no genuine issue of material fact (§ 78B-25-107(1)).
• • Fees. If the moving party prevails, the court shall award costs, reasonable attorney fees, and reasonable litigation expenses related to the motion. A responding party recovers fees only if the motion was frivolous or filed solely to delay (§ 78B-25-110).
• • Appeal. An order denying the motion is appealable as of right, and the appeal stays the case (§§ 78B-25-109(1), -104(3)).

How the two layers fit. The privilege is the merits; the Act is the procedure. A claim built entirely on privileged statements fails to state a claim, and a plaintiff cannot make a prima facie showing of malice or improper means from conduct the law treats as absolutely privileged. Raised through the Act, that same defense is decided within weeks, without discovery, with mandatory fees.

Talking publicly about your case. A common variation: a party files suit, then issues a press release describing the case, drawn from the complaint and the public docket. The other side responds by threatening defamation and false-light claims against the party and her lawyer. Several protections line up against that threat. A statement about a pending case is a communication on an issue under review in a judicial proceeding, inside the Act’s scope (§ 78B-25-102(2)(b)). The filings themselves are absolutely privileged, and the Utah Supreme Court has treated a republication of the pleadings as privileged on the same footing (Hansen). And the rules of professional conduct expressly allow a lawyer in the case to state the claim involved, information contained in a public record, and the scheduling or result of any step in the litigation, subject to the general limit on statements likely to materially prejudice the proceeding (Utah R. Prof’l Conduct 3.6(a)–(b)). A threatened counterclaim over a fair account of the public record is exactly the kind of claim the special motion and its fee award were built for.

9. The real remedy for a bad lawsuit

The privilege is broad, and Moss said why that is tolerable: trial judges control the proceedings before them, the adversary system tests claims, and the rules of civil procedure, the rules of professional conduct, and the court’s inherent authority guard against abusive and frivolous litigation. The remedy for a meritless suit is in the case where it was filed. Utah Code § 78B-5-825 allows a fee award when the court finds an action both baseless and brought for an improper purpose, such as harassment or delay. Malicious prosecution and abuse of process carry their own gatekeeping elements.

The anti-SLAPP motion belongs to the same family: a remedy inside the retaliatory case itself, decided early, with fees.