Motion to Dismiss in DEUTSCHE BANK AG v. VIK, CAROLINE Et Al| Trellis.Law

On June 09, 2020 a Motion,Ex Parte was filed involving a dispute between Deutsche Bank Ag, and Alexander Vik, Caroline Vik, for T90 - Torts - All other in the District Court of Fairfield County.

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DOCKET NO. FST-CV20-6047029-S : SUPERIOR COURT

DEUTSCHE BANK AG, : J.D. OF STAMFORD-
PLAINTIFF, NORWALK
VS. :
AT STAMFORD
:
CAROLINE VIK, ET AL, : JANUARY 29, 2021
Defendant.
REPLY TO PLAINTIFF’S OBJECTION TO DEFENDANTS’ MOTION TO DISMISS
PURSUANT TO THE LITIGATION PRIVILEGE
The Bank’s allegations in the Complaint strike at the very heart of the litigation

privilege. Its claim that the privilege does not apply to the conduct of filing a lawsuit is

simply wrong. Cf. Cohen v. King, 189 Conn. App. 85, 91–93 (2019). Its fallback

argument that the allegations in its Complaint fall within an exception to the litigation

privilege for abuse of process claims is also wrong. Among other reasons, it fails

because the Bank has not pled an abuse of process cause of action, nor could it. This

misguided and misleading argument has already been expressly rejected by our

Appellate Court—on multiple occasions. See, e.g., Tyler v. Tatoian, 164 Conn. App. 82

(2016); Perugini v. Giuliano, 148 Conn. App. 861, 874 (2014). The overwhelming,

controlling authority makes clear that the litigation privilege applies to claims for tortious

interference and violation of CUTPA—the causes of action actually pled by the Bank—

where, as here, such claims are premised on past litigation. The Court should,

accordingly, dismiss the Bank’s Complaint in its entirety, or, at least, strike the offending

portions.

I. Brief Factual Background

Although replete with blatant misrepresentations and mischaracterizations,1 the

Bank’s “factual” background only further highlights the applicability of the litigation

1 The Bank’s gratuitous ad hominem attacks on the Viks are especially insincere given
Deutsche Bank’s unclean hands and hypocrisy. For example, the Bank operates an
offshore bank; see Deutsche Bank Channel Islands, http://www.db-ci.com/index.php;
and has faced numerous criminal investigations of its offshore dealings; see, e.g., Karen
Matussek, Deutsche Bank Panama Papers Probe Leads to More German Raids,
Bloomberg (May 15, 2019), https://bloom.bg/2RVNi7s. More broadly, Deutsche Bank is
alleged to have been “enveloped in scandals related to money laundering, tax evasion,
manipulating interest rates, manipulating the prices of precious metals, manipulating the
currency markets, bribing foreign officials, accounting fraud, violating international
sanctions, ripping off customers, and ripping off the German, British, and United States

1
privilege. The Bank points to purported findings from the English Court that Mr. Vik “told

lies” in court submissions and offered manufactured evidence; Obj. at 4; and further

contends that Mr. Vik directed others to commence and maintain meritless litigation and

to manufacture evidence; Obj. at 6. As a result of this alleged conduct, the Bank claims

to have been harmed. Id.2 These are the very types of claims that the litigation privilege

was designed to prevent. See Rioux v. Barry, 283 Conn. 338 (2007); Tyler v. Tatoian,

164 Conn. App. 82 (2016).

II. Legal Analysis

A. The Litigation Privilege Encompasses the Conduct of
Commencing a Lawsuit

The relevant decisional law belies the Bank’s claim that the litigation privilege

does not apply to the act of commencing a lawsuit. In Field v. Kearns, 43 Conn. App.

265 (1996), the Connecticut Appellate Court held explicitly that absolute immunity

encompasses the actual filing of the grievance complaint, and not just the allegations

made during the grievance hearing. Id. at 273. Cf. Cohen v. King, 189 Conn. App. 85,

92 (2019) (“We note that Field held not only that statements made in a grievance

governments.” See David Enrich, Dark Towers, p. 9 (2020). See also Matthew
Goldstein and David Enrich, Deutsche Bank Will Pay $125 Million Over Bribery
Violations, New York Times, available at
https://www.nytimes.com/2021/01/08/business/deutsche-bank-bribery-charges.html
(Jan. 8, 2021) (describing the Bank’s agreement to pay more than $125 million in fines
and penalties to avoid a criminal prosecution on charges it participated in a foreign
bribery scheme and describing past penalties resulting from the Bank’s criminal activity
and violations of international sanctions). Clearly, the Bank is not the friendly,
neighborhood bank nor a good corporate citizen, but nonetheless it is shamelessly
trying to claim the moral high ground in this case.
2 While not the subject of this Motion, the Bank’s refrain that ithas been damaged is
speculative at best. The reality is that the Bank has lost nothing, and in fact it previously
argued to Norway officials that they should accept the sale price of Confirmit. For it to
now argue that the Viks somehow damaged the Bank is not believable.

2
proceeding were shielded by absolute immunity, but also that the act of filing a

grievance was protected.”). Likewise, in Perugini v. Giuliano, 148 Conn. App. 861

(2014), the Appellate Court affirmed a trial court decision dismissing an action for

infliction of emotional distress in which the plaintiff alleged that certain proceedings were

initiated by the defendant rather than by her client for the improper purpose of

benefitting the defendant. In reaching its decision, the Court specifically rejected the

plaintiff’s argument that the litigation privilege did not apply to its claim that the

defendant had commenced litigation for an improper purpose. Id. at 874.3

These express holdings from the Appellate Court are consistent with the public

policy behind the litigation privilege. As our Supreme Court has explained, the privilege

is “rooted in the public policy that “a judge in dealing with the matter before him, a party

in preparing or resisting a legal proceeding, [or] a witness in giving evidence in a

court of justice, shall do so with his mind uninfluenced by the fear of an action for

defamation or a prosecution for libel.” Simms v. Seaman, 308 Conn. 523, 538 (2013).

The rationale for such a policy is that “the 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. . . . Put simply, absolute

immunity furthers the public policy of encouraging participation and candor in

3 Perugini is discussed at length in the Viks’ principal brief at pp. 10-11. The Bank’s
halfhearted attempt in Footnote 3 of its Objection to distinguish Perugini is baseless.
There is no authority that states that attorneys and parties are treated differently with
respect to the litigation privilege. In fact, the relevant law dictates otherwise. See
Tyler v. Tatoian, 164 Conn. App. 82, 93 (2016) (“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.”). See also Ngo v. Wirtes,
HHDCV195057252S, 2019 WL 4322666, at *5 (Noble, J.) (Aug. 20, 2019) (“The
litigation privilege clearly applies to parties such as [defendant] and the action
against her is also dismissed.”).

3
judicial and quasi-judicial proceedings. . . . As a result, 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, 283 Conn. at 343–44 (“The doctrine of absolute immunity as

applied to statements made in the context of judicial and quasi-judicial proceedings is

rooted in the public policy of encouraging witnesses, both complaining and

testimonial, to come forward and testify in either criminal or civil actions.”).

The decisional law upon which the Bank relies is inapposite and does nothing to

further the Bank’s cause. The defendants in Fiondella v. Meriden, 186 Conn. App. 552

(2018), cert. denied, 330 Conn. 961 (2019), did more than bring a lawsuit: They fixed

the outcome of a declaratory judgment action by “purposefully conceal[ing] [its]

existence” by, among other things, filing suit in New Haven instead of Meriden “where

the subdivision [was] located and the parties reside[d]” and intentionally failing to give

notice to the plaintiffs. Id. at 559-60. The Fiondella Court, accordingly, found that the

fraud the plaintiffs had alleged against the defendants did not occur during a judicial

proceeding.4

By contrast here, the Bank’s claims are directly related to the past litigations

themselves. These claims necessarily require an assessment of the statements made

during judicial proceedings. The Court could not possibly assess the merit of a litigation

without assessing the statements in the Complaint or in other pleadings, and

communications made during hearings or in preparation of and in connection with the

4 Not only do the unusual facts of Fiondella limit its value, but so does the fact that the
defendants' “brief on appeal. . . failed to address squarely the litigation privilege. . .
[and] raised arguments. . . not pertinent to an analysis of the trial court's subject
matter jurisdiction.” Fiondella, 186 Conn. App. at 563 n. 9.

4
litigation. The conduct associated with the decision to commence litigation, on the one

hand, and the communications relevant to the litigation, on the other hand, is a

distinction without a difference. The actual conduct of filing of the lawsuit does not weigh

on its merit, it is the content of the lawsuit that would control this determination.

MacDermid, Inc. v. Leonetti, 310 Conn. 616 (2013) does not say otherwise.

Relying on cherry-picked language from that case—that the privilege does not apply to

claims that seek “to impose liability upon a litigant for his improper use of the judicial

system itself”—the Bank argues that its claims that the Viks commenced meritless

litigation does not fall within the litigation privilege. Obj. at 10. In making this argument,

the Bank misconstrues MacDermid’s holding. The narrow and novel issue in

MacDermid was whether absolute immunity applies to a cause of action brought under

General Statutes § 31–290a. In holding that it does not, the MacDermid Court

conducted an analysis akin to the analyses conducted by the Simms and Rioux Courts

to determine whether General Statutes § 31-290a was more analogous to a claim for

defamation or to claims of abuse of process and vexatious litigation. Ultimately, the

Court determined that General Statutes § 31–290a was more analogous to a claim of

abuse of process and thus the litigation privilege did not apply.

Based on this limited holding from MacDermid, the Bank appears to believe that

it can avoid application of the litigation privilege by masquerading its CUTPA and

tortious interference claims as “abuse of process” claims. See Obj. at 2, 3, 10, 15

5
(describing its tortious interference and CUTPA claims as alleging abuse of process).

Perugini v. Giuliani and Tyler v. Tatoian make clear that it cannot.5

In Tyler, the plaintiffs were brothers who brought an action alleging fraud and a

violation of CUTPA against the trustee of their mother’s trust. The alleged

mismanagement of the trust by the defendant was the subject of a prior litigation

between the parties. The defendant moved to dismiss, asserting the litigation privilege,

and the court dismissed the action. The plaintiffs appealed, arguing that their claims fell

under an exception to the litigation privilege for causes of action alleging an improper

use of the judicial system.

The Appellate Court affirmed the dismissal of the plaintiffs’ suit. Rejecting the

plaintiffs’ argument that their claim fell within an exception to absolute immunity, the

Court reasoned that “the exception elucidated in MacDermid, Inc., does not apply in this

case. The plaintiffs here have alleged fraud, and even though they claim that that fraud

constituted an abuse of the legal system, they have not brought a claim against the

defendant for abuse of process. . . .The 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 announced in MacDermid, Inc.”

Id. at 93 (emphasis added). The Court then applied the same rationale to the plaintiffs’

CUTPA claim. Id. at 94.

The Perugini Court reached the same conclusion. There, the Court explained

We recognize that the plaintiff alleged that certain
proceedings at issue were not brought for a proper purpose,
. . . These allegations may have properly formed the basis

5 It is worth repeating that no Court has determined that any action involving the Viks
was frivolous, vexatious, or abusive.

6
for an abuse of process action, where “a legal process [is
used] against another primarily to accomplish a purpose for
which it is not designed”; and absolute immunity does not
necessarily attach. Nonetheless, the allegation that certain
judicial proceedings were not brought for a proper
purpose does not in itself remove immunity for
attorneys in negligent infliction of emotional distress
actions.

Perugini, 148 Conn. App. at 874 (emphasis added). See also Proxysoft, LLC et al. v.

Robert D. Russo, Ex'r of the Estate of Thomas Thornton et al. Additional Party Names:

Home Dental Care, Inc., Katherine Thornton, Laura Thornton, Thornton Int'l,Inc., No.

FSTCV186034808S, 2020 WL 8130208, at *10 (Ozalis, J.) (Nov. 30, 2020) (granting

motion to dismiss pursuant to the litigation privilege and noting that plaintiffs had not

asserted a claim for abuse of process); Dorfman v. Smith, No. HHDCV156062649S,

2019 WL 3406611, at *4 (Noble, J.) (June 11, 2019) (rejecting argument that litigation

privilege does not protect conduct that is “the functional equivalent of vexatious

litigation,” because “the plaintiff's claims unambiguously do not assert liability for

vexatious litigation.”). Cf. Simms v. Seaman, 308 Conn. 523, 566–67 (2013) (“One

objective of expanding the privilege has been “to prevent plaintiffs from subverting the

purposes of the defamation privilege by bringing actions on other legal theories”). These

cases reveal that the law draws a clear, bright line around malicious prosecution,

vexatious litigation and abuse of process—for good reasons, and being “closely akin” to

them is not good enough. See Simms, 308 Conn. at 541-43 (describing rationale for the

exceptions to the privilege and describing why that rationale does not apply to a tortious

interference claim).

Here, the Bank has not pled an abuse of process cause of action. The Bank has

sued the Viks for tortious interference and a violation of CUTPA. The Connecticut

7
Supreme Court has already determined that these causes of action are subject to the

litigation privilege when predicated on past litigation. See Rioux v. Barry, 283 Conn. 338

(2007); Tyler v. Tatoian, 164 Conn. App. 82 (2016).6 The Bank’s attempt to avoid

dismissal by describing its causes of action as something else—alleging a pattern of

abuse of process, without pleading a cause of action for abuse of process—is

insufficient to invoke the limited exception of MacDermid.

B. The Bank’s Allegations are Relevant to the Subject Matter of
Past Litigations

Perhaps recognizing the futility in its argument, the Bank further argues that even

if the litigation privilege does apply, that not all of its allegations fall within the privilege.

While the Viks maintain their position that the entire Complaint should be dismissed,

assuming, arguendo, that not every allegation falls within the privilege, the Court has

the discretion to strike offending provisions. See Dorfman v. Smith, No.

HHDCV156062649S, 2019 WL 3406611, at *5 (Noble, J.) (June 11, 2019) (court has

authority to dismiss portions of the complaint). The Bank acknowledges the Court’s

authority to strike allegations. Obj. at 17-18.

6 The two Superior Court decisions cited by the Bank on p. 16 of its Objection for the
proposition that some Connecticut courts have refused to apply the litigation
privilege to tortious interference and CUTPA claims are completely inapposite. See
Kramer v. Sierra, No. HHDCV186098422S, 2019 WL 4322463, at *1 (Noble, J.)
(Aug. 19, 2019) (fee dispute between successor and prior counsel did not implicate
litigation privilege because the fee dispute was not directed to achieving the object of
the proceeding, the prosecution of the client's claim, the actual object of the
proceeding, or conduct in the course of legal representation); Mandell v. Dolloff, No.
HHDCV195059374S, 2019 WL 4014903, at *5 (Shapiro, J.) (Aug. 5, 2019) (claims
relating to a sale of property did not implicate litigation privilege where the property
was sold in accordance with a judicially sanctioned bid contest in the probate court).

8
However, the Bank stillseeks to avoid application of the privilege to allegations

that are clearly relevant to past litigations. See Obj. at 17 (“the litigation privilege does

not apply to . . . the conduct described in Categories Two through Five”).7 In making this

argument, the Bank apparently fails to recognize that “our law provides for a very

generous test for relevance.” Bruno v. Travelers Companies, 172 Conn. App. 717, 727

(2017). See also Priore v. Haig, 196 Conn. App. 675, 692–93 (2020) (“a court faced with

determining whether absolute litigation immunity applies to statements made during a

judicial or quasi-judicial proceeding should apply the immunity generously.”); Gallo v.

Barile, 284 Conn. 459, 467 (2007) (“The test for relevancy is generous”).

A statement is relevant to the subject of a controversy when “the communication

has some reference to the subject matter of the proposed or pending litigation, although

it need not be strictly relevant to any issue involved in it.” Alexandru v. Dowd, 79 Conn.

App. 434, 439 (2003). “[T]he test is not one of legal relevance, but rather whether the

statement has some relation to the judicial proceeding.” Priore, 196 Conn. App. at 707.

Connecticut courts have expanded the doctrine of absolute immunity to include

preparatory communications through the final disposition of litigation. See Hopkins v.

O'Connor, 282 Conn. 821, 832 (2007) (“[t]he scope of privileged communication

extends not merely to those made directly to a tribunal, but also to those preparatory

communications that may be directed to the goal of the proceeding”).

7 “Categories Two through Five” describe Alexander Vik’s alleged “plan to deplete
Confirmit’s assets,” conduct in connection with the execution lien and conduct in
connection with the ROFR. Obj. at 6. As described on pp. 11-12, 14-17 of the Viks’
principal motion, these categories all fall within the broad protections of the litigation
privilege.

9
In the present case, the Bank has alleged that the Viks commenced “frivolous

actions” and filed “meritless appeals”, even though no Court has ever made that

determination. These allegations strike at the very of heart of communications and

actions before the Oslo Enforcement Court in Norway, the Borgarting Court of Appeals,

the Supreme Court of Norway, and the United States District Court for the District of

Connecticut. The Bank’s claims fall well-within the expansive protection of the litigation

privilege. 8

III. Conclusion

The Viks respectfully request that this Court grant their motion to dismiss on the

grounds of the litigation privilege by dismissing the case in its entirety or, at the least,

dismissing all of the offending allegations.

THE DEFENDANTS
CAROLINE VIK AND ALEXANDER VIK

By: /s/ Monte E. Frank
Monte E. Frank
Adam S. Mocciolo
Johanna S. Katz
Pullman & Comley, LLC
850 Main Street P.O. Box 7006
Bridgeport, CT 06601-7006
Juris No. 47892
Telephone 203 330 2000
Facsimile 203 576 8888
Their Attorneys

8 In stark contrast to the Bank’s description of the privilege as a “narrow doctrine;” Obj.
at 2; Connecticut courts have continuously expanded the scope of the privilege citing
the public policy of encouraging “participation and candor in judicial and quasi-
judicial proceedings.” MacDermid, 310 Conn. at 627.

10
CERTIFICATION

I certify that a copy of the above was or will immediately be mailed or delivered
electronically or non-electronically on January 29, 2021, to all counsel and self-
represented parties of record and that written consent for electronic delivery was
received from all counsel and self-represented parties of record who were or will
immediately be electronically served.

Day Pitney LLP
One Stamford Plaza
263 Tresser Boulevard
Stamford, CT 06901-13236

Cahill Gordon & Reindel
32 Old Slip
New York, NY 10005
David G. Januszewski, Esq.
PHV Brian T. Markley
PHV Sheila C. Ramesh

/s/ Monte E. Frank
Monte E. Frank

11
ACTIVE/81751.1/JKATZ/9240716v1

Case Info

Judge

Sheila A. Ozalis Track Judge’s New Case

Case No.

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Document Filed Date

January 29, 2021

Case Filing Date

June 09, 2020

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Motion,Ex Parte: DEUTSCHE BANK AG v. VIK, CAROLINE Et Al

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