This section contains the nature of the case and procedural background.

P and Susan Fontana were equal owners and co-presidents of a corporation called Totally Italian.com, Inc. By December 2002, they were embroiled in disputes regarding the management of the business. Fontana retained the services of D and his law firm. D drafted a letter to P outlining Fontana's grievances and proposing a process that would allow one owner to buy out the other. In the letter, D advised P that he understood 'that disputes have arisen between you and [Fontana],' and that he had 'serious concerns about the propriety and legality' of P's actions. D enumerated a long list of concerns and stated: 'It seems abundantly clear to me that you cannot continue in business together.' D proposed a detailed process 'designed to result in one of you buying out the other at a fair price.' D warned that if P was not 'willing to deal with [Fontana] reasonably and fairly,' Fontana would have to 'consider taking appropriate legal action to protect her interest in the corporation.' D issued a deadline by the close of business on January 13, 2003. D closed by declaring that 'this letter is for settlement purposes only' and 'is inadmissible in any legal proceeding.' On December 27, 2002, before sending the letter to P, D emailed Fontana a draft for her review. He also sent a copy of the email to a businessman named Chaim Kalfon. Earlier that month, Fontana had sent P an email 'to introduce' Kalfon and to authorize him 'to negotiate an amicable settlement for our partnership.' On December 31, 2002, D sent the letter to P. P filed suit charging D and his law firm with defamation. P alleged libel per se, because it imputed 'unfitness to perform and/or the lack of integrity of performance of the duties of the job that [P] was designated to perform for the business enterprise.' D filed a motion to dismiss and/or for summary judgment, claiming they were absolutely protected by the judicial proceedings privilege. The district court ruled that Ds were protected from P's defamation claim by the judicial proceedings privilege and granted summary judgment. P appealed.

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