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Case 18-2868, Document 276, 08/09/2019, 2628224, Page40 of 77 trafficking. Viewing the July 2015 statement from the perspective of these reporters and journalists—the only persons who received the July 2015 statement—presents a different landscape in the “fact versus opinion” analysis. Applying the third factor with the benefit of the Rule 56 records compels a conclusion different from the one this Court reached on the barren Rule 12(b)(6) record. For example, this Court did not consider that the media-recipients of the July 2015 statement would have understood the statement in precisely the way Mr. Barden intended: Based on a comparison of dramatic differences between her “original” and “new” allegations, Ms. Giuffre is a teller of falsehoods—is a liar—and cannot be trusted, and her new CVRA joint-motion allegations, which deviated so substantially from her originally allegations, are falsehoods—proven false by her increasingly provocative and lurid versions of her story of “victimhood.” See generally Exhibit J. Ill. The pre-litigation privilege bars this action. Statements pertinent to a good faith anticipated litigation made by attorneys (or their agents under their direction’’) before the commencement of litigation are privileged and “no cause of action for defamation can be based on those statements,” Front, Inc. v. Khalil, 28 N.E.3d 15, 16 (N.Y. 2015). So long as there was “a good faith basis to anticipate litigation,” a statement concerning either “actual litigation or prelitigation matters” is subject to an “absolute privilege.” Flomenhaft v. Finkelstein, 8 N.Y.S.3d 161, 164 n.2 (App. Div. 2015) (emphasis supplied); accord Kirk v. Heppt, 532 F. Supp. 2d 586, 593 (S.D.N.Y. 2008). The privilege covers statements made in connection with “pending or “contemplated litigation.” Goldstein v. Cogswell, No. 85 CIV. 9256 (KMW), 1992 WL 131723, at *27 n.32 (S.D.N.Y. June 1, 1992) It covers statements made outside court, including in written °7See Chambers v. Wells Fargo Bank, N.A., No. 2016 WL 3533998, at *8 (D.N.J. June 28, 2016); see generally Hawkins v. Harris, 661 A.2d 284, 289-91 (N.J. 1995). 33