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Case 18-2868, Document 279, 08/09/2019, 2628231, Page27 of 37 The problem for plaintiff is that in Khalil the New York Court of Appeals held this general rule does not apply to the pre-litigation privilege. Khalil worked for a company named Front. After eight years, he resigned and began working for “EOC,” one of Front’s competitors. Front’s lawyer Kimmel sent a demand letter to Khalil alleging he had committed criminal, tortious and ethical misconduct. Kimmel sent another demand letter to EOC and others stating Khalil had conspired with EOC to breach his fiduciary duty to Front. Six months later, Front sued Khalil. Khalil brought a third-party claim against Kimmel for libel per se. The trial court dismissed the lawsuit, ruling that the letters were “absolutely privileged” under the litigation privilege “and that it therefore did not need to reach the question of malice.” 28 N.E.3d at 17 (internal quotations omitted). The Appellate Division affirmed, holding that the litigation privilege absolutely protected the letter “because they were issued in the context of prospective litigation.” Jd. at 18 (internal quotations omitted). The Court of Appeals affirmed, but altered the law on the litigation privilege. It observed, “Although it is well-settled that statements made in the course of litigation are entitled to absolute privilege, this Court has not directly addressed whether statements made by an attorney on behalf of his or her client in connection with prospective litigation are privileged.” Id. (emphasis supplied). Some Appellate Division departments had held the absolute privilege applies to statements made in connection with prospective litigation, but other departments had held such statements were entitled only to a qualified privilege. Id. The answer to whether pre-litigation statements should be absolute or qualified, the Court of Appeals held, is driven by the rationale for protecting pre-litigation statements: When litigation is anticipated, attorneys and parties should be free to communicate in order to reduce or avoid the need to actually commence litigation. Attorneys often send cease and desist letters to avoid litigation. . . . Communication during this pre-litigation phase should be encouraged and not chilled by the possibility of being the basis for a defamation suit. 22