                                                    130 Nev., Advance Opinion   414
                        IN THE SUPREME COURT OF THE STATE OF NEVADA

                 STEVEN C. JACOBS,                                     No. 58740
                 Appellant,
                 vs.
                 SHELDON G. ADELSON, IN HIS
                                                                            FILED
                 INDIVIDUAL AND REPRESENTATIVE                              MAY 3 0 2014
                 CAPACITIES,                                                       LI NDEMAN
                                                                                    REM E
                 Respondent.



                             Appeal from a district court order, certified as final under
                 NRCP 54(b), dismissing respondent from a defamation action. Eighth
                 Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge.
                      Reversed and remanded.

                 Pisanelli Bice, PLLC, and Todd L. Bice, Debra L. Spinelli, and Jarrod L.
                 Rickard, Las Vegas,
                 for Appellant.

                 Morris Law Group and Steve L. Morris and Ryan M. Lower, Las Vegas,
                 for Respondent.




                 BEFORE THE COURT EN BANC.'

                                                 OPINION
                 By the Court, HARDESTY, J.:
                            Appellant sued respondent's companies for wrongful
                 termination, making a number of allegations in the complaint against

                       'The Honorable Kristina Pickering, Justice, did not participate in
                 the decision of this matter.

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                respondent personally. After respondent published a response to the
                allegations in the media, appellant sued him for defamation. The district
                court dismissed the defamation claim, concluding that respondent was
                protected from a defamation suit because his statements to the media
                were made in the context of a judicial action. Although statements made
                during the course of judicial proceedings are generally considered
                absolutely privileged and cannot form the basis of a defamation claim, we
                have yet to consider whether statements made to the media regarding
                ongoing or contemplated litigation are covered by this absolute privilege.
                We adopt the majority view that communications made to the media in an
                extrajudicial setting are not absolutely privileged, at least when the media
                holds no more significant interest in the litigation than the general public.
                Thus, we reverse the order of dismissal and remand this matter to the
                district court for further proceedings.
                                                   FACTS
                            Appellant Steven C. Jacobs filed a wrongful termination
                complaint against Las Vegas Sands Corporation (LVSC) and Sands China,
                Ltd. (Sands China). LVSC is the controlling shareholder of Sands China.
                Sheldon G. Adelson is the chief executive officer and majority shareholder
                of LVSC and Jacobs' former employer. Although Adelson was not
                originally named as a defendant, Jacobs' complaint alleged that Adelson
                demanded Jacobs to engage in "illegal" activities while working for LVSC
                operations in Macau. Jacobs further alleged that his refusal to carry out
                those "illegal" demands resulted in threats by Adelson and Jacobs'
                eventual termination. The complaint also contained numerous attacks
                against Adelson personally, asserting that he made "outrageous demands"
                and referring to him as "notoriously bellicose" and "mercurial." It also
                attacked Adelson's behavior as "rude and obstreperous."
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                                  LVSC and Sands China filed a motion to dismiss the
                     complaint, which resulted in a hearing that received widespread media
                     attention. After the hearing, the Wall Street Journal published an online
                     article about the case. According to the article, Adelson provided an e-
                     mail response that allegedly said:
                                 While I have largely stayed silent on the matter to
                                 this point, the recycling of his allegations must be
                                 addressed. . . . We have a substantial list of
                                 reasons why Steve Jacobs was fired for cause and
                                 interestingly he has not refuted a single one of
                                 them. Instead, he has attempted to explain his
                                 termination by using outright lies and fabrications
                                 which seem to have their origins in delusion.
                     Jacobs subsequently amended his complaint, adding a claim for
                     defamation per se against Adelson, LVSC, and Sands China. The
                     amended complaint alleged that the statements published in the Wall
                     Street Journal were false and defamatory, unprivileged, published
                     maliciously and known to be false or in reckless disregard of the truth, and
                     necessarily injurious to Jacobs' professional reputation.
                                 Adelson, LVSC, and Sands China all filed motions to dismiss
                     Jacobs' defamation claim, arguing that the statements were absolutely
                     privileged communications made in the course of judicial proceedings or,
                     in the alternative, were protected by the conditional privilege of reply.
                     Alter a hearing on the motion to dismiss, the district court determined
                     that Adelson's response to the Wall Street Journal was an absolutely
                     privileged communication relating to the litigation. Based on its ruling
                     that Adelson's statements were absolutely privileged, the district court
                     declined to consider Adelson's alternative argument that his statements
                     were covered by the conditional privilege of reply. The district court thus
                     granted the motion to dismiss and, because the dismissal resolved all
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                  claims against Adelson, certified its order as final under NRCP 54(b) for
                  purposes of this appeal.
                                                 DISCUSSION
                  Standard of review
                              We rigorously review a district court order granting an NRCP
                  12(b)(5) motion to dismiss, accepting all of the plaintiffs factual
                  allegations as true and drawing every reasonable inference in the
                  plaintiffs favor to determine whether the allegations are sufficient to state
                  a claim for relief. State ex rd. Johnson v. Reliant Energy, Inc., 128 Nev.
                     „ 289 P.3d 1186, 1189 (2012). A complaint should be dismissed for
                  failure to state a claim only "when it appears beyond a doubt that the
                  plaintiff could prove no set of facts that would entitle him or her to relief"
                  Id. We review de novo the district court's legal conclusions.      Buzz Stew,
                  L.L.C. v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008).
                  We also review de novo the applicability of an absolute privilege.
                  Cucinotta v. Deloitte & Touche, L.L.P., 129 Nev. „ 302 P.3d 1099,
                  1101 (2013). Whether a statement is sufficiently relevant to the judicial
                  proceedings to fall within the absolute privilege is a question of law for the
                  court. Circus Circus Hotels, Inc. v. Witherspoon, 99 Nev. 56, 62, 657 P.2d
                  101, 105 (1983).
                  The absolute privilege
                              Nevada has long recognized the existence of an absolute
                  privilege for defamatory statements made during the course of judicial and
                  quasi-judicial proceedings.    See, e.g., Clark Cnty. Sch. Dist. v. Virtual
                  Educ. Software, Inc. (VESA 125 Nev. 374, 382, 213 P.3d 496, 502 (2009);
                  Fink v. Oshins, 118 Nev. 428, 432-33, 49 P.3d 640, 643-44 (2002); Circus
                  Circus Hotels, 99 Nev. at 60, 657 P.2d at 104. This privilege, which acts as
                  a complete bar to defamation claims based on privileged statements,
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                  recognizes that "[c]ertain communications, although defamatory, should
                  not serve as a basis for liability in a defamation action and are entitled to
                  an absolute privilege because the public interest in having people speak
                  freely outweighs the risk that individuals will occasionally abuse the
                  privilege by making false and malicious statements." Cucinotta, 129 Nev.
                  at , 302 P.3d at 1101 (quoting Circus Circus Hotels, 99 Nev. at 61, 657
                  P.2d at 104); see also Hampe v. Foote, 118 Nev. 405, 409, 47 P.3d 438, 440
                  (2002), overruled on other grounds by Buzz Stew, L.L.C.,    124 Nev. at 228
                  n.6, 181 P.3d at 672 n.6. An absolute privilege constitutes "an immunity,
                  which protects against even the threat that a court or jury will inquire
                  into a communication." Hampe, 118 Nev. at 409, 47 P.3d at 440.
                                 In order for the absolute privilege to apply to defamatory
                  statements made in the context of a judicial or quasi-judicial proceeding,
                  "(1) a judicial proceeding must be contemplated in good faith and under
                  serious consideration, and (2) the communication must be related to the
                  litigation."   VESI, 125 Nev. at 383, 213 P.3d at 503. Therefore, the
                  privilege applies to communications made by either an attorney or a
                  nonattorney that are related to ongoing litigation or future litigation
                  contemplated in good faith. Id. When the communications are made in
                  this type of litigation setting and are in some way pertinent to the subject
                  of the controversy, the absolute privilege protects them even when the
                  motives behind them are malicious and they are made with knowledge of
                  the communications' falsity.    Id. at 382, 213 P.3d at 502; Circus Circus
                  Hotels, 99 Nev. at 60, 657 P.2d at 104. But we have also recognized that
                  'Uhl attorney's statements to someone who is not directly involved with
                  the actual or anticipated judicial proceeding will be covered by the
                  absolute privilege only if the recipient of the communication is

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                  'significantly interested' in the proceeding." Fink, 118 Nev. at 436, 49 P.3d
                  at 645-46 (quoting Andrews v. Elliot, 426 S.E.2d 430, 433 (N.C. Ct. App.
                  1993)).
                              Here, even though Adelson's statements mentioned ongoing
                  litigation, Jacobs argues that the district court improperly applied the
                  absolute privilege because the statements were made outside of the
                  judicial proceedings to disinterested persons, including the media and the
                  press, and are thus unrelated to the litigation. Jacobs avers that the press
                  lacks any legal interest in the outcome of this case and has no functional
                  ties to his claims or Adelson's defenses. Adelson, in contrast, contends
                  that the district court properly dismissed Jacobs' defamation claim
                  because his statements are absolutely privileged since they were made
                  during the course of this judicial proceeding and were directly related to
                  the subject of this lawsuit—Jacobs' claim for wrongful termination.
                  Adelson also argues that statements made to the media should be included
                  in the scope of Nevada's absolute privilege rule. Because we decline
                  Adelson's invitation to treat the media as "significantly interested" in the
                  litigation, we agree with Jacobs' assessment that absolute privilege does
                  not apply here.
                        Application of the absolute privilege in the media context
                              This court has not previously addressed whether the absolute
                  privilege applies when the media is the recipient of the statement. We
                  have, however, recognized that communications are not sufficiently
                  related to judicial proceedings when they are made to someone without an
                  interest in the outcome. See Fink, 118 Nev. at 436, 49 P.3d at 645-46.




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                            The majority of states have determined that the absolute
                privilege does not apply when the communications are made to the media. 2
                "Communications made to newspapers and during press conferences have
                been almost universally found to be excluded from the protection of
                absolute privilege."   Med. Informatics Eng'g, Inc. v. Orthopaedics Ne.,
                P.C., 458 F. Supp. 2d 716, 724 (N.D. Ind. 2006) (quoting Williams v.
                Kenney, 877 A.2d 277, 288 (N.J. Super Ct. App. Div. 2005)); see, e.g., Asay
                v. Hallmark Cards, Inc., 594 F.2d 692, 697 (8th Cir. 1979) ("Publication to
                the news media is not ordinarily sufficiently related to a judicial
                proceeding to constitute a privileged occasion."); Green Acres Trust v.
                London, 688 P.2d 617, 622 (Ariz. 1984) (same); Rothman v. Jackson, 57
                Cal. Rptr. 2d 284, 294-95 (Ct. App. 1996) (stating that the absolute
                privilege generally should not be extended to "litigating in the press"); see
                also Milford Power Ltd. P'ship v. New England Power Co., 918 F. Supp.
                471, 486 (D. Mass. 1996); Seidl v. Greentree Mortg. Co., 30 F. Supp. 2d
                1292 1313-14 (D. Colo. 1998); Kelley v. Bonney, 606 A.2d 693, 707 (Conn.

                      2A  few jurisdictions have held that, under certain circumstances, an
                attorney's statements to the media are absolutely privileged. See, e.g.,
                Prokop v. Cannon, 583 N.W.2d 51, 58 (Neb. Ct. App. 1998) (extending the
                privilege to statements made by an attorney to a reporter after the
                dismissal of the first lawsuit). Other jurisdictions have found exceptions
                to the majority rule based on unique circumstances. See, e.g., Johnston v.
                Cartwright, 355 F.2d 32, 37 (8th Cir. 1966) (applying absolute privilege to
                a statement to a newspaper when all signs pointed to emerging litigation
                and the newspaper was a potential party); Jones v. Clinton, 974 F. Supp.
                712, 731-32 (E.D. Ark. 1997) (applying absolute privilege to a lawyer's
                statements to the press denying allegations and questioning the plaintiffs
                motives, where the plaintiff publicly solicited a response); Helena Chem.
                Co. v. Uribe, 281 P.3d 237, 239-40 (N.M. 2012) (holding that an attorney's
                prelitigation statements to the press are absolutely privileged if a class
                action lawsuit is contemplated).

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                 1992); Kennedy v. Zimmermann,         601 N.W.2d 61, 64-65 (Iowa 1999);
                 Kennedy v. Cannon, 182 A.2d 54, 58 (Md. 1962).
                             These courts have concluded that the policy considerations
                 underlying the absolute privilege rule are not applicable to statements
                 made to the media. Statements made to the media "do little, if anything,
                 to promote the truth finding process in a judicial proceeding. . . . [They] do
                 not generally encourage open and honest discussion between the parties
                 and their counsel in order to resolve disputes; indeed, such statements
                 often do just the opposite." Pratt v. Nelson, 164 P.3d 366, 381 (Utah 2007).
                 And allowing defamation claims for statements made to the media will not
                 generally hinder investigations or the detailing of claims. Milford Power,
                 918 F. Supp. at 486; see also Asay, 594 F.2d at 698. Thus, the need for
                 absolute privilege evaporates.      Milford Power, 918 F. Supp. at 486.
                 Because the privilege's purpose is not to protect those making defamatory
                 comments but "to lessen the chilling effect on those who seek to utilize the
                 judicial process to seek relief," these courts have declined to extend the
                 privilege in this context.   Kirschstein v. Haynes, 788 P.2d 941, 952-53
                 (Okla. 1990).
                             Based on the policy considerations underlying the absolute
                 privilege, we adopt the majority view that statements made to the media
                 are not subject to absolute privilege. Extension of the absolute privilege to
                 cover statements to the media, when the media are not a party to the
                 lawsuit or inextricably intertwined with the lawsuit, would not further the
                 policy underlying the absolute privilege. This position is also in line with
                 our previous caselaw acknowledging that the privilege was created in part
                 because the public interest in free speech during litigation outweighs the
                 possibility of abuse of the privilege through the making of false and

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                      malicious statements. See Cucinotta, 129 Nev. at        , 302 P.3d at 1101;
                      Circus Circus Hotels, 99 Nev. at 61, 657 P.2d at 104. However, protecting
                      speech made during a judicial proceeding does not warrant allowing the
                      dissemination of defamatory communications outside of the judicial
                      proceedings. See Kelley, 606 A.2d at 707; Asay, 594 F.2d at 697.
                                  Here, there has been no cogent argument that the Wall Street
                      Journal has any other interest than that of an observer in the litigation
                      such that the communications were made outside the judicial proceedings.
                      While Adelson's statements were connected to the litigation in that they
                      addressed Jacobs' contentions, we "draw the line between bona fide
                      litigation activities and a public relations campaign" as it concerns the
                      absolute privilege. Williams v. Kenney, 877 A.2d 277, 290-91 (N.J. Super.
                      Ct. App. Div. 2005). The dissent argues that the extensive media coverage
                      of the underlying judicial proceedings in this case has resulted in both the
                      media and the public becoming "significantly interested" in the
                      proceedings, thus triggering the absolute privilegeS to Adelson's contested
                      statements. We cannot agree.
                                  As the dissent points out, we have previously determined that
                      the absolute privilege only covers statements made to those without direct
                      involvement in the judicial proceeding if the recipients of the
                      communication are "significantly interested in the proceeding."      Fink v.
                      Oshins, 118 Nev. 428, 436, 49 P.3d 640, 645-46 (2002) (internal quotations
                      omitted). 3 While we have yet to examine what constitutes a "significant


                            3 0ther jurisdictions do not have this requirement. See, e.g., Helena
                      Chem., 281 P.3d at 242 ("[P]ublishing a statement to a person with a
                      direct interest in the judicial proceeding is not an independent element in
                      the absolute privilege analysis." (internal quotation omitted)).

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                interest" in judicial proceedings, drawing from our analysis in Fink, the
                policy underlying the absolute privilege, and other relevant caselaw, we
                conclude that assessing the significant interest of the recipient requires
                review of the recipient's legal relationship to the litigation, not their
                interest as an observer.     See id. at 436, 49 P.3d at 645-46; cf. Hall v.
                Smith, 152 P.3d 1192, 1197 (Ariz. Ct. App. 2007) (stating that resolution
                of the judicial privilege issue pivots on relationship of recipient to the legal
                proceedings).
                            A nonparty recipient must have a relevant interest in, or a
                connection to, the outcome of the proceeding          See, e.g., Kanengiser v.
                Kanengiser, 590 A.2d 1223, 1237 (N.J. Super. Ct. Law Div. 1991)
                (establishing that trustees and beneficiaries of a trust had a significant
                interest in potential litigation regarding the trust); DeVivo v. Ascher, 550
                A.2d 163, 168 (N.J. Super. Ct. App. Div. 1988) (indicating that nonparty
                recipient was significantly interested because the records sought in the
                litigation were relevant to the amount owed to the recipient and the
                recipient "could properly have been joined as a party"); cf. Theiss v.
                Scherer, 396 F.2d 646, 648 (6th Cir. 1968) (noting that letter written by
                attorney was absolutely privileged because it was addressed to an
                attorney who represented a party with a financial interest in the
                proceeding, and copies were sent to individuals with direct financial
                interests in proceeding). Moreover, the nature of the recipient's interest in
                or connection to the litigation is a "case-specific, fact-intensive inquiry"
                that must focus on and balance the underlying principles of the privilege.
                Hall, 152 P.3d at 1199.
                            Looking then at the relationship between the Wall Street
                Journal and the underlying district court proceedings in this case, we

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                 conclude that the newspaper does not have a direct interest in, or
                 connection to, the outcome of the proceedings, other than as a spectator.
                 See Fink, 118 Nev. at 436, 49 P.3d at 646; Green Acres Trust, 688 P.2d at
                 623; Hall, 152 P.3d at 1197. As explained by the Arizona Supreme Court
                 in Green Acres Trust v. London, generally, "reporterisl play{ I no role in
                 the actual litigation other than that of a concerned observer." 688 P.2d
                 617, 623 (Ariz. 1984). Accordingly, we conclude that the Wall Street
                 Journal does not have any legal or financial interest in the underlying
                 litigation, and thus, it is not significantly interested in the litigation for
                 purposes of the absolute privilege. Essentially, because Adelson's
                 statements were published to a disinterested party, they are not
                 sufficiently connected to the judicial proceedings to warrant application of
                 the absolute privilege.
                 The conditional privilege of reply
                             Adelson also argues that this court should affirm the district
                 court's decision because he had a privileged right to reply to the
                 defamatory allegations made by Jacobs. Adelson contends that his
                 statements were directly responsive, proportionate, and relevant to
                 Jacobs' defamatory statements made against him in the complaint.
                 Jacobs responds by arguing that questions of qualified privilege cannot be
                 determined at this point, as this affirmative defense turns on facts and a
                 record that has not yet been developed.
                             The common law conditional privilege of reply "grants those
                 who are attacked with defamatory statements a limited right to reply."
                 State v. Eighth Judicial Dist. Court (Anzalone), 118 Nev. 140, 149, 42 P.3d
                 233, 239 (2002). To illustrate the conditional privilege of reply, this court
                 has previously explained that "[iljf I am attacked in a newspaper, I may
                 write to that paper to rebut the charges, and I may at the same time retort
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                 upon my assailant, when such retort is a necessary part of my defense, or
                 fairly arises out of the charges he has made against me.' Id. at 149, 42
                 P.3d at 239 (quoting Foretich v. Capital Cities I ABC, Inc., 37 F.3d 1541,
                 1559 (4th Cir. 1994)). This privilege is not absolute, however. It may be
                 lost "if the reply: (1) includes substantial defamatory matter that is
                 irrelevant or non-responsive to the initial statement; (2) includes
                 substantial defamatory material that is disproportionate to the initial
                 statement; (3) is excessively publicized; or (4) is made with malice in the
                 sense of actual spite or ill will." Anzalone, 118 Nev. at 149-50, 42 P.3d at
                 239.
                             The conditional privilege's application is generally a question
                 of law for the court. Anzalone, 118 Nev. at 149, 42 P.3d at 239 (citing
                 Lubin v. Kunin, 117 Nev. 107, 115, 17 P.3d 422, 428 (2001)). Although
                 Adelson argued that the conditional privilege of reply applied to his
                 statement, the district court specifically declined to consider these
                 arguments. The factual record has not yet been developed, and we decline
                 to address the applicability of the conditional privilege for the first time on
                 appea1. 4 See Lubin, 117 Nev. at 115, 17 P.3d at 428 (declining to




                        4Adelson also claims that his statements areS not actionable because
                 only factual assertions, not mere opinions, may sustain a defamation
                 claim. 'While Adelson raised this issue in the district court, the district
                 court resolved the motion to dismiss solely based on absolute privilege.
                 Because this is an assessment for the fact-finder, we decline to address it
                 here. Adelson may raise this issue on remand to the district court. See
                 State v. Eighth Judicial Dist. Court (Anzalone), 118 Nev. 140, 150-51, 42
                 P.3d 233, 240 (2002); Wynn v. Smith, 117 Nev. 6, 18, 16 P.3d 424, 431
                 (2001).

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                 determine whether a conditional privilege applied because, at the motion
                 to dismiss stage, the defendants had not yet "alleged the privilege by
                 answer, let alone established facts to show that the privilege applies").
                              For the foregoing reasons, we vacate the district court's
                 dismissal order, and we remand this case to the district court for further
                 proceedings consistent with this opinion.


                                                             S
                                                      Hardesty
                                                                 et..t du;         , J.

                 We concur:


                                                 J.
                 Douglas


                                                 J.
                 Saitta


                                                 D.J.
                 Montero




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                CHERRY, J., with whom GIBBONS, C.J., and PARRAGUIRRE, J., agree,
                dissenting:
                              I would affirm the district court's decision to apply the
                absolute privilege to Adelson's statement and would conclude that the
                privilege extends to statements made to the media. See Prokop v. Cannon,
                583 N.W.2d 51, 58 (Neb. Ct. App. 1998).
                              As the majority acknowledges, the absolute privilege was
                created to protect certain types of communications "because 'the public
                interest in having people speak freely outweighs the risk that individuals
                will occasionally abuse the privilege by making false and malicious
                statements." Cucinotta v. Deloitte & Touche, L.L.P., 129 Nev. ,
                302 P.3d 1099, 1101 (2013) (quoting Circus Circus Hotels, Inc. v.
                Witherspoon, 99 Nev. 56, 61, 657 P.2d 101, 104 (1983)). To effectuate the
                underlying policy behind the absolute privilege, it must be applied to
                statements made to the media during the judicial process.
                              The now-pervasive media coverage of judicial proceedings has
                resulted in the media and the public becoming significantly interested in
                the proceedings    See Fink v. Oshins, 118 Nev. 428, 436, 49 P.3d 640, 645-
                46 (2002) (requiring that the recipient of the communication be either
                directly involved or significantly interested in the proceeding) In this era
                of the unrelenting 24-hour news cycle, the public interest would be served
                by hearing both sides of a legal dispute. When the media is covering a
                case, replies to allegations should be allowed as a right and should not
                subject the declarant to having to prove that he or she was acting in self-
                defense. People are often judged not on the outcome of their case, but on
                the media's portrayal of them during the proceedings To tie their hands
                would unduly subject parties to restrictions on their personal and/or

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                professional need for freedom of speech at a time when the world is
                watching.
                            Through the media's access to the judicial process, Jacobs was
                allowed to tell his side of the story with impunity. To say that Adelson
                must wait to respond through a legal channel is absurd. There is no
                reason to constrain Adelson's response to future legal briefs and motions.
                It makes no difference if Adelson's statements were made in his legal
                briefs or directly to the media—the result is the same, widespread
                dissemination to the public. Adelson should not be subject to defamation
                claims in this instance merely based on the platform that he used.
                            As recognized in the election context, "it is our law and our
                tradition that more speech, not less, is the governing rule."        Citizens
                United v. Fed. Election Comm'n, 558 U.S. 310, 361 (2010). Because of this,
                I would decline to limit the scope of the absolute privilege rule in Nevada.
                The natural avenue of response to the allegations covered in media is
                likewise through the media. Accordingly, I would conclude that Adelson's
                statement is absolutely privileged because it was made during the course
                of this judicial proceeding and directly relates to the subject of this
                lawsuit.




                Pariaguirre


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