         UNITED STATES COURT OF APPEALS
                  FIFTH CIRCUIT

                  ____________

                  No. 96-11289
                  ____________


HUGH L TOLLACK, II


     Plaintiff - Appellant-Cross-Appellee,

versus


ALLIANZ AKTIENGESELLSCHAFT HOLDING; ALLIANZ OF
AMERICA INCORPORATED; ALLIANZ LIFE INSURANCE
COMPANY OF NORTH AMERICA; FIREMAN’S FUND
INSURANCE   COMPANY;   ALLIANZ    OF   AMERICA
CORPORATION


     Defendants - Appellees-Cross-Appellants



Appeals from the United States District Court
      For the Northern District of Texas
               (3:94-CV-2434-P)



                  ____________

                  No. 96-50582
                  ____________


HUGH L TOLLACK, II


     Plaintiff

versus


ALLIANZ AKTIENGESELLSCHAFT HOLDING; ALLIANZ OF
AMERICA INCORPORATED; ALLIANZ OF AMERICA
          CORPORATION; ALLIANZ LIFE INSURANCE COMPANY OF
          NORTH   AMERICA;  FIREMAN’S   FUND   INSURANCE
          COMPANY


               Defendants - Appellants
          versus

          DOW JONES & COMPANY; MICHAEL TOTTY


               Movants - Appellees


          Appeals from the United States District Court
                For the Western District of Texas
                          (A-96-cv-278)


                        November 10, 1997

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Hugh L. Tollack, II (“Tollack”) appeals the district court’s

grant of summary judgment in favor of Allianz Aktiengesellschaft

Holding, Allianz of America, Incorporated,   Allianz Life Insurance

Company of North America, and Fireman’s Fund Insurance Company

(collectively “Allianz”) on his state-law defamation, intentional

infliction of emotional distress, and civil conspiracy claims in

appeal number 96-11289.    Allianz cross-appeals the denial of

discovery of the notes of reporter Michael Totty in appeal number

96-50582. Allianz made three allegedly defamatory statements about


     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                               -2-
Tollack. The district court found that even if the statements were

defamatory, the first two statements were absolutely privileged

from being the basis for a defamation suit because they were issued

in connection with an on-going judicial proceeding and all three

were absolutely privileged because Tollack consented to Allianz

making the statements.

     Another lawsuit between Tollack and Allianz was proceeding in

Texas state court when Allianz made the first two statements.

Although the Texas district court had granted summary judgment in

favor of Allianz and the Texas court of appeals had affirmed

summary judgment when the first two statements were made, a writ of

error was pending in the Texas Supreme Court.1    Under Texas law,

statements made by potential witnesses that are related to an on-

going judicial proceeding are absolutely privileged from serving as

the basis for a defamation suit.     See James v. Brown, 637 S.W.2d

914, 916-17 (Tex. 1982).     The first two statements concerned

Allianz’s position in the previous lawsuit in state court and were

made by potential witnesses to that proceeding.     Accordingly, we

conclude that those statements were made in relation to a judicial

     1
          The Texas Supreme Court had denied the writ of error
before the third statement was made, but the time for filing a
petition of certiorari to the United States Supreme Court had not
yet elapsed when that statement was made. The district court found
that the third statement did not relate to the suit because the
suit had already been terminated. In light of our conclusion that
Tollack consented to all three statements, we decline to decide
whether the possibility of filing a petition for certiorari meant
that the suit was still proceeding when the third statement was
made.

                               -3-
proceeding and therefore were absolutely privileged.

     The district court also found that Tollack had impliedly

consented    to   Allianz    making    all   three   statements     because   he

initiated the contact with the media and Allianz’s customers and

informed them of allegations of impropriety by Allianz. Consent is

an absolute privilege to a defamation action, regardless of whether

the speaker acted with malice.           See Smith v. Holley, 827 S.W.2d

433, 436, 38 (Tex. App. 1992, writ denied).               “[I]f the publication

of which the plaintiff complains was consented to, authorized,

invited or    procured      by   the   plaintiff,    he    cannot   recover   for

injuries sustained by reason of the publication.”               Lyle v. Waddle,

188 S.W.2d 770, 772 (Tex. 1945).             Consent may be implied with

respect to publications that can be reasonably foreseen by the

person giving consent, in light of the language and circumstances

that create the consent. Smith, 827 S.W.2d at 439.              As the district

court correctly noted, Allianz’s statements accurately, albeit

briefly, summarized its position in the earlier state court suit.

Therefore, no material question of fact exists as to whether

Tollack impliedly consented to all three statements because Tollack

should have reasonably foreseen how Allianz would respond when he

contacted the media and Allianz’s customers.                  Accordingly, the

district court appropriately granted summary judgment in favor of

Allianz on the basis of Tollack’s consent to all three statements.

     For the foregoing reasons, the grant of summary judgment by


                                       -4-
the district court in appeal number 96-11289 is AFFIRMED.   Appeal

number 96-50582 is DISMISSED AS MOOT.




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