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The Settlement Privilege and the Threat of Legal Action

By Stanley S. Arkin and Lisa C. Solbakken

Is there a time when extortionate threats of meritless litigation become a criminal act that should be exempt from the settlement privilege?

Some time ago, one of these authors observed that nearly all manner of communication is apt to contain the seedlings of a threat at one time or another. See Stanley S. Arkin, “Blackmail and the Practice of Law,” N.Y.L.J. (Feb. 7, 1995). Whether this be a communication between a parent and child (“Eat your vegetables or else!”) or a TV commercial, the practice in our discourse of imposing a consequence to coerce a concession, achieve an economic or political end, or resolve a dispute is so commonplace that it may proceed without care or notice, much less analysis. Of course, the laws and regulations designed to punish extortion and blackmail are notable exceptions to this. Our society rejects these efforts to exploit others by virtue of fear-invoking threats that are designed to achieve wrongful objectives.

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