Filed Pleadings Protected, Private Gossip Not: Nevada Supreme Court Reaffirms Litigation Privilege as a Complete Bar at Anti‑SLAPP Prong Two and Clarifies NRS 41.637’s “Interested Audience” Requirement

Introduction

This commentary examines the Supreme Court of Nevada’s decision in Edgeworth Family Trust v. Law Office of Daniel S. Simon, No. 87649 (Aug. 28, 2025), an anti-SLAPP appeal arising from a fee dispute that spiraled into competing lawsuits between former clients and their prior counsel. The Court’s order—affirming in part, reversing in part, and remanding—draws a careful line between two sets of speech:

• Statements contained in and derived from pleadings filed in ongoing litigation, which are protected at anti-SLAPP step one and then categorically barred by Nevada’s absolute litigation privilege at step two; and
• Private, extrajudicial statements to nonparties with no interest in the case, which are not protected communications under NRS 41.637.

The case clarifies how Nevada’s anti-SLAPP framework interacts with the litigation privilege, and it reinforces the “interested audience” requirement for communications said to be “in direct connection with” issues under judicial consideration. The decision has immediate practical implications for defamation and business disparagement claims that target statements made in pleadings, as well as for litigants’ off-the-record discussions with uninvolved third parties.

Case Overview

Attorney Daniel Simon and his firm represented Brian and Angela Edgeworth (and related entities) in a product defect case without a written fee agreement. After the case settled better than expected, Simon sought a percentage of the recovery, a demand that precipitated a breakdown in the relationship. The Edgeworths retained new counsel; Simon asserted a lien against the settlement proceeds; and the Edgeworths sued Simon for conversion, breach of contract, and declaratory relief. That suit was later dismissed after a partial release of funds by Simon.

Simon, in turn, sued the Edgeworths for, among other things, defamation per se and business disparagement. The Edgeworths moved to dismiss under Nevada’s anti-SLAPP statute. The district court initially granted the motion as to all claims except defamation per se and business disparagement. On reconsideration, however, it denied the anti-SLAPP motion in full, citing a factual question about whether an agreement existed between Simon and the Edgeworths’ new lawyer before an earlier lien-litigation filing in January 2018.

Procedural Posture and Issues

On appeal, the Edgeworths sought anti-SLAPP protection for:

• Statements they made to three individual nonparties; and
• Four communications contained in their 2018 conversion complaint against Simon:
  • The assertion of an express fee agreement at the outset;
  • The assertion that they were due the full settlement proceeds;
  • The conversion claim itself; and
  • The assertion that Simon requested a contingency fee.

The Supreme Court reviewed de novo whether those statements and allegations were protected communications under NRS 41.637 (prong one) and, if so, whether Simon showed a probability of prevailing (prong two).

Summary of the Judgment

• Affirmed: The anti-SLAPP motion was properly denied as to statements the Edgeworths made to three nonparties who had no interest in the litigation. Those communications are not protected under NRS 41.637.
• Reversed: The anti-SLAPP motion should have been granted as to claims based on four communications taken from the Edgeworths’ filed conversion complaint. Those communications are protected at prong one under NRS 41.637(3), and at prong two, Simon could not show a probability of prevailing because Nevada’s absolute litigation privilege applies, providing a complete bar to defamation-based claims.
• Remanded: For proceedings consistent with these rulings. The Court declined to consider Simon’s “one-check sign over” contention because it arose from separate underlying litigation issues not squarely before the Court in this anti-SLAPP appeal.

Detailed Analysis

1) The Anti-SLAPP Framework Applied

Nevada employs a two-step analysis under NRS 41.660(3)(a)–(b):

• Prong one asks whether the suit is “based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern,” as defined in NRS 41.637.
• If prong one is satisfied, prong two asks whether the plaintiff can show, with prima facie evidence, a probability of prevailing—i.e., “minimal merit.”

Prong One: Protected Communication and Good Faith

The Court analyzed whether the challenged statements fit within NRS 41.637’s four categories of protected communications:

1. Communications aimed at procuring governmental or electoral action;
2. Complaints to government officials on matters of governmental concern;
3. Statements made in direct connection with an issue under consideration by a judicial, legislative, or executive body; and
4. Communications made in direct connection with an issue of public interest in a public place or forum.

Two outcomes emerged:

• Nonparty statements: Not protected. The communications were neither to government actors nor made in public forums, and—crucially—NRS 41.637(3) did not apply because the recipients had no interest in the litigation. The Court relied on Patin v. Ton Vinh Lee’s “interested audience” requirement for litigation-related speech. Because the Edgeworths did not carry their burden on prong one for these statements, the Court affirmed the denial of the anti-SLAPP motion as to those claims.
• Filed-pleading statements: Protected. The four specified communications came directly from the Edgeworths’ filed 2018 conversion complaint (which remained pending when Simon filed his defamation suit), fitting squarely within NRS 41.637(3). The Court also found the statements were made in good faith, satisfying prong one.

Prong Two: Probability of Prevailing and the Litigation Privilege

At prong two, Simon had to show “minimal merit” that he could prevail on his defamation-type claims. He could not, because Nevada’s absolute litigation privilege applied. The privilege:

• Applies to statements made during the course of judicial or quasi-judicial proceedings;
• Requires that the proceeding be contemplated in good faith and under serious consideration; and
• Requires that the communication be related to the litigation.

Applying Jacobs v. Adelson and Williams v. Lazer, the Court held that the litigation privilege operates at anti-SLAPP prong two: if the privilege applies, a plaintiff cannot demonstrate a probability of prevailing. The Court expressly concluded that the statements at issue—those in the 2018 conversion complaint, and related allegations such as blackmail/extortion, mishandling of funds, and feeling threatened or scared—are covered by the privilege, which is a complete bar to defamation claims based on privileged statements. Consequently, the district court erred by denying the anti-SLAPP motion as to claims predicated on those communications.

2) Precedents Cited and Their Influence

• Smith v. Zilverberg, 137 Nev. 65, 481 P.3d 1222 (2021): De novo standard of review; clarifies “minimal merit” at prong two. The Court used Smith to frame both the standard of review and the evidentiary threshold for the plaintiff.
• Stark v. Lackey, 136 Nev. 38, 458 P.3d 342 (2020): Reiterated the two-prong anti-SLAPP analysis under NRS 41.660(3)(a)-(b). The Court followed Stark’s structure.
• Rosen v. Tarkanian, 135 Nev. 436, 453 P.3d 1220 (2019): Clarified that prong one entails identifying a protected communication and assessing good faith. The Court adopted Rosen’s parsing of prong one.
• Shapiro v. Welt, 133 Nev. 35, 389 P.3d 262 (2017): Explained that “good faith” does not operate independently of the statute; it is embedded within the categories. The Court cited Shapiro to cabin the analysis.
• Spirtos v. Yemenidjian, 137 Nev. 711, 499 P.3d 611 (2021): If the moving party fails prong one, the court need not reach prong two. This guided the affirmance as to nonparty statements.
• Patin v. Ton Vinh Lee, 134 Nev. 722, 429 P.3d 1248 (2018): NRS 41.637(3) covers litigation-related communications only when made to someone with an interest in the case. Patin was decisive in rejecting protection for the Edgeworths’ statements to disinterested nonparties.
• Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 245 P.3d 1198 (2010): Appellate courts may affirm for the right result even if on a different rationale. Used to sustain the district court’s ruling on the nonparty statements.
• Abrams v. Sanson, 136 Nev. 83, 458 P.3d 1062 (2020): Elaborated the “minimal merit” standard at prong two. Reinforced the limited burden on plaintiffs—but one they cannot meet when a privilege applies.
• Williams v. Lazer, 137 Nev. 437, 495 P.3d 93 (2021): Confirmed that the absolute litigation privilege is evaluated at anti-SLAPP prong two and, if applicable, precludes a probability of prevailing.
• Jacobs v. Adelson, 130 Nev. 408, 325 P.3d 1282 (2014): Set the modern Nevada test for the absolute litigation privilege and recognized it as a complete bar to defamation claims. The Court applied Jacobs to the pleadings-based statements.
• McClintock v. West, 162 Cal. Rptr. 3d 61 (Ct. App. 2013): Cited to note California’s broader application of the litigation privilege to most torts except malicious prosecution. The Court underscored that Nevada has not extended the privilege beyond defamation; however, the privilege still resolved this case because the claims at issue included defamation per se and business disparagement grounded in the protected pleadings.

3) The Court’s Legal Reasoning

• Sorting the speech: The Court categorized the challenged speech into (a) communications to uninterested nonparties and (b) statements embedded in a filed pleading in ongoing litigation.
• Applying NRS 41.637:
  • Nonparty statements failed to qualify as protected under subsections (1), (2), or (4), and—under Patin—also failed to qualify under subsection (3) because they were not directed to someone with an interest in the case.
  • Pleadings-derived statements fell within NRS 41.637(3) as written or oral statements made “in direct connection with” an issue under judicial consideration.
• Good faith: The pleadings-derived communications were made in good faith, satisfying prong one.
• Privilege at prong two: Once the Court identified the pleadings-based statements, it applied the litigation privilege, which defeated Simon’s ability to show a probability of prevailing on defamation-type claims. The privileged status operated as a complete bar.
• Irrelevance of collateral factual disputes: The district court’s stated reason for denying the anti-SLAPP motion on reconsideration—a factual dispute about whether there was an agreement between Simon and the Edgeworths’ new attorney—did not alter the legal effect of the privilege or the statutory protections for the communications drawn from the filed complaint.

4) Impact and Practical Implications

• Robust protection for pleadings: Litigants have reinforced assurance that statements contained in filed pleadings in a case under judicial consideration are protected communications at prong one and categorically privileged at prong two for defamation-type claims. This promotes candid advocacy within court filings.
• Sharp limits on extrajudicial “gossip”: Private statements to individuals unconnected to the litigation are not covered by NRS 41.637(3). If not made in a public forum or to government, such statements will likely fail prong one and remain actionable.
• Early disposition tool: When a defamation or business disparagement suit targets statements pulled from pleadings, defendants now have a clear roadmap for early dismissal via anti-SLAPP coupled with the litigation privilege.
• Trade libel/business disparagement: While Nevada has not explicitly extended the litigation privilege beyond defamation, this order indicates that defamation-adjacent claims premised on privileged statements face the same prong-two barrier if the theory is functionally a defamation claim targeting the content of pleadings. Plaintiffs should anticipate dismissal where their claims attack privileged litigation allegations.
• Audience matters: For practitioners, the “interested audience” requirement is critical. Communications about ongoing litigation should be channeled to participants with a legitimate stake (parties, counsel, witnesses, insurers, experts) if protection under NRS 41.637(3) is desired.
• Remand considerations: On remand, only claims anchored in the nonparty statements survive the anti-SLAPP motion. The district court will proceed consistent with the Supreme Court’s order, and may need to address anti-SLAPP remedies for the partially prevailing movants under NRS 41.670 (e.g., fees and costs) as appropriate.

Complex Concepts Simplified

• Anti-SLAPP: Short for “Strategic Lawsuit Against Public Participation.” Nevada’s anti-SLAPP law lets defendants seek early dismissal of lawsuits that target protected speech or petitioning activity.
• Two-prong test:
  • Prong one asks whether the defendant’s speech fits within statutorily protected categories (NRS 41.637) and was made in good faith.
  • Prong two asks whether the plaintiff has enough evidence to show a probability of success—“minimal merit.” If a privilege applies, the plaintiff cannot meet this burden.
• NRS 41.637(3): Protects statements made “in direct connection with” an issue under consideration by a court or other official body. Nevada courts require the recipient to have an interest in the litigation for this protection to apply to extrajudicial communications about the case.
• Litigation privilege: An “absolute” privilege shielding statements made in the course of judicial or quasi-judicial proceedings, provided the proceedings were contemplated in good faith and the statements relate to the litigation. In Nevada, it is a complete bar to defamation claims based on such statements.
• Interested audience: For litigation-related speech outside the four corners of a filing, the recipient must have a stake in the case (e.g., parties, counsel, witnesses). Gossiping to friends or uninvolved third parties typically does not qualify.
• De novo review: The Supreme Court gives no deference to the district court’s legal conclusions, instead applying the law anew to the facts.

What Happens Next (Remand)

• The district court will proceed with claims predicated on the nonparty statements, which remain outside anti-SLAPP protection under this order.
• Claims predicated on the four pleadings-derived communications must be dismissed under anti-SLAPP because the litigation privilege defeats any probability of prevailing.
• The district court may need to address anti-SLAPP remedies, including fees and costs for partially prevailing defendants, consistent with NRS 41.670 and the scope of the Supreme Court’s partial reversal.

Key Takeaways

• Pleadings-based statements are doubly protected: they qualify as protected communications at anti-SLAPP prong one and are categorically barred by the absolute litigation privilege at prong two for defamation-type claims.
• Private statements to people with no stake in the case are not protected by NRS 41.637(3), and if they are not otherwise made to government or in a public forum, the anti-SLAPP motion will fail at prong one.
• The “interested audience” requirement from Patin v. Ton Vinh Lee remains a decisive gatekeeper for litigation-connected speech outside the courtroom.
• Litigants and lawyers should keep allegations about a dispute inside the litigation channels (pleadings, court filings, communications with participants) if they want the benefit of Nevada’s robust protections. Off-the-record commentary to uninvolved third parties risks exposure.
• Nevada continues to recognize California’s broader privilege jurisprudence but has not formally extended the absolute litigation privilege beyond defamation; nonetheless, defamation-adjacent theories aimed at pleading content will struggle at prong two.

Conclusion

Edgeworth v. Simon provides a clear, structured application of Nevada’s anti-SLAPP statute and litigation privilege. The Court reaffirms a bright-line protection for statements contained in filed pleadings within ongoing litigation, while drawing an equally clear boundary around extrajudicial statements to uninvolved individuals. The decision ensures that court filings remain a safe harbor for vigorous advocacy by coupling anti-SLAPP’s early-dismissal mechanism with the absolute litigation privilege’s complete bar. At the same time, it cautions parties against airing accusations to audiences without a legitimate interest in the dispute. In Nevada’s defamation and business disparagement landscape, this order will guide both plaintiffs and defendants in evaluating which speech is insulated—and which remains exposed—when litigation and reputation collide.