Facebook shields records from Mass. AG inquiry

The Massachusetts Supreme Judicial Court today ruled on efforts by Facebook to resist disclosures arising from an internal investigation into application development.  The disclosures are sought by the commonwealth attorney general, which is investigating allegations of consumer data misuse.

AG Healey
(Zgreenblatt CC BY-SA 3.0)

The court's ruling is mixed, but, overall, Facebook gained ground.  The court allowed Facebook more latitude than it won in the lower court to resist disclosure on grounds of attorney work product.  On remand, the lower court will have to scrutinize the records to separate attorney opinion, which is protected, from mere facts, which are not.  The SJC agreed with the lower court that one set of records was within attorney-client privilege, and Facebook will have to produce a privilege log.

Facebook seems to be taking seriously the investigation by the office of Attorney General Maura Healey, and it should.  The company hired fixer-firm Gibson Dunn to handle its internal investigation and is represented by Wilmer Hale in the Massachusetts investigation.  Massachusetts data protection regulation is antiquated relative to the latest generation of regulations in Europe and California, but the law has been on the books for more than a decade.  The AG was represented in the SJC by attorney Sara Cable, whose appointment last year as the office's first chief of data privacy and security signaled an intent to ramp up data protection.  Massachusetts consumer protection law, "93A," the basis of the AG investigation here, is famously expansive, often displacing common law tort in private enforcement and affording generous damages.

Justice Scott Kafker wrote the lengthy opinion for the court in Attorney General v. Facebook, No. SJC-12946 (Mass. Mar. 24, 2021).  Justice Kafker is on a tear of late, having written the court's opinion in a sea change in tort law in late February and the court's unanimous ruling against Gordon College in a First Amendment religious freedom case on March 5.

EU sustainability reg reaches companies in U.S., world

A sustainability regulation from the EU promises to be the next big compliance hurdle deployed on the continent to affect transnational businesses based in the United States and around the world.

The regulation is the subject of a lecture today by my friend and co-author Gaspar Kot in the 2020-21 lecture series, "Contemporary Challenges in Global and American Law," from the Faculty of Law and Administration at Jagiellonian University (JU) in Kraków, Poland, and the Columbus School of Law at the Catholic University of America (CUA) in Washington, D.C.

Gaspar Kot

Kot speaks today on "Sustainable Investment – The New Heart of EU Financial Market Regulation."  His lecture will be published in the CUA YouTube playlist [now available & below].  Here is the abstract.

With increasing concern for global climate change and following the 2015 Paris Agreement obligations, the European Union adopted the Regulation [2019/2088] on Sustainability-Related Disclosures in the Financial Services Sector (SFDR), which took effect beginning March 10, 2021. The SFDR, along with draft regulatory technical standards and the EU’s Taxonomy Regulation, require financial market participants to incorporate sustainability considerations in their governance frameworks, as well as to prepare disclosures and reporting to investors about environmental, social, and governance factors. The EU sustainable investment regime reaches US entities offering investment funds and financial services to European clients. The EU General Data Protection Regulation sent shock waves across the Atlantic and required many US lawyers and businesses quickly to become expert in GDPR requirements. The EU’s ESG requirements are likely to have a similar dramatic border-crossing impact.

Kot is a markets, products, and structuring lawyer for UBS, the Swiss investment bank and financial services company with worldwide offices including more than 5,000 employees in Poland. He heads the asset management stream of the legal department in the UBS Kraków office.

When I last wrote about the winter-spring line-up for the lecture series, the following spring offerings were yet to be announced.  It's not too late now to sign up for four more programs.

• April 14 – Katarzyna Wolska-Wrona, "Approaches to Combating Gender-Based Violence: The Council of Europe Istanbul Convention and a US Perspective"
• April 27 – Mary Graw Leary, "#MeToo and #Black Lives Matter: Conflicting Objectives or Opportunities for Advancement of Shared Priorities?"
• May 12 – Regina T. Jefferson, "Examining United States Retirement Savings Policy through the Lens of International Human Rights Principles"
• June 2 – Wictor Furman, "European and US Perspectives on Investment Fund Regulation"

My students in comparative law especially might be interested in the April 14 program by attorney Wolska-Wrona, an expert with the EU Agency for Fundamental Rights.  Our class looked at eastern European skepticism of the Istanbul Convention as part of our examination of contemporary issues in EU law.  The matter remains timely; Turkey's withdrawal triggered protests just two days ago and was condemned by the Biden Administration.  I also look forward especially to the presentation of Professor Jefferson, who is a gem of a scholar and colleague.

[UPDATED, March 26, with video, below.]

Covid-era eviction elicits ancient injunction plea

Clameur de Haro was invoked to block the burial of William the Conqueror in 1087.

Image from Amable Tastu, La Normandie Historique (1858).

We've all seen the strain of the pandemic on our socioeconomic fabric and the rule of law.

Last week came the alarming news that a federal district judge in Texas ruled unconstitutional the eviction moratorium issued by the Centers for Disease Control.  Judge Campbell Barker held in Terkel v. CDC that the moratorium exceeded the federal power that the CDC could exercise on behalf of Congress under the Article I Commerce Clause and Necessary and Proper Clause of the U.S. Constitution.

A friend and colleague on Jersey, a Crown dependency close to France, sent along this fascinating item from the Jersey Evening Post.  A Jersey resident who was served with eviction papers after being unable to pay the mortgage invoked "an ancient legal right" called "the Clameur de Haro."  The Post explained:

To enact the Clameur the aggrieved party must go down on one knee in the location of the offence and then, with hands in the air and in the presence at least two witnesses, must call out: "Haro! Haro! Haro! A l'aide, mon Prince, on me fait tort." This translates as: "Hear me! Hear me! Hear me! Come to my aid, my Prince, for someone does me wrong." The offending activity must cease. The individual then needs to put the grievance down in writing and lodge it with the Judicial Greffe within 24 hours.

Jersey
(image of ESA Copernicus Sentinel-2 CC BY-SA 3.0 IGO)

Jersey is a fascinating study in comparative law.  One might expect the island to be legally indistinguishable from the UK, but that is not the case at all.  Jersey has its own parliament and legal system.  Unlike the UK, Jersey is not a member of the Hague Convention on the enforcement of foreign civil and commercial judgments, so a foreign entity wishing to enforce there must seek to register the judgment through a domestic legal process.

Collas Crill, "an offshore law firm that never stands still," wrote an explainer in 2018 on the Clameur de Haro in neighboring Channel Island Guernsey, where the process seems to be the same.  The explainer added, "After the cry, both the Lord's prayer and a Grace must be recited by the complainant in French."

Quartz reported how a woman in Guernsey stopped construction on a road improvement project in 2018 by invoking the Clameur de Haro.  According to Quartz, "[t]he clameur was first recorded in Norman law in the 13th century. Its use is believed to have originated in the 10th century as an appeal to Rollo, Viking founder of the Norman dynasty, according to a 2008 article in the Jersey and Guernsey Law Review by lawyer and legal historian Andrew Bridgeford."

Collas Crill lawyers further explained, "Arguably the main reason for the continued use of the Clameur is the immediacy of its effect, although in modern times an additional perceived benefit is the publicity it can draw to your cause."