Proposed Biden rule would try again to compel airline pricing transparency; it worked out so well last time

President Biden has his own plane.

(U.S. Mission photo by Eric Bridiers CC BY-SA 2.0 via Flickr)

The U.S. Department of Transportation (DOT) has proposed a rule to refresh pricing transparency in the airline industry.

According to a DOT press release: "Under the proposed rule, airlines and travel search websites would have to disclose upfront—the first time an airfare is displayed—any fees charged to sit with your child, for changing or cancelling your flight, and for checked or carry-on baggage." 

For me, the new rule can't happen soon enough. At the same time, I'm doubtful we'll see much change in the opacity of the airfare market.

I'm a libertarian. But in America, libertarianism is too often confused with a radically absolutist version of laissez-faire capitalism. Libertarianism rather is about the virtues of a free market. And free markets depend on conditions that don't naturally tend to exist in the real world, including a free flow of information between buyer and seller—that is, transparency. Free markets require regulation to ensure that they remain free.

The airline industry, especially since it moved to online sales, is case in point. In the online marketplace, customers are attracted by low upfront prices. Airlines found that sales improved when the upfront price was lowered by moving some of the fare, especially bag-check costs, to add-on fees later in the purchase transaction. Southwest famously resisted bag-check fees and has capitalized on its exceptionalism, though not without costs. 

In the usual purchase transaction, the low upfront price is too attractive to resist. And competitors' add-ons are not always apparent until the customer has sunken too much time and money into the booking to look back. Indeed, Delta does not even allow customers to prepay bag check, so fliers are not confronted with the bag-check add-on until the day of departure.

Dollars are not the only costs that airlines can conceal from customers doing online price comparison. Inconvenient routing with multiple and lengthy layovers can cost fliers time and money down the line. Early morning and late night flight departures and arrivals can significantly increase airport transfer costs, besides risking personal security and inducing exhaustion. Seat availability can be limited, making flying literally painful for someone six-foot-five or weak of bladder. 

Negotiating these options can be grueling for the consumer, and the market can seem ungoverned by logic. For me, it is not unusual to take days, at hours per day, sifting and testing the market to get the best deal on an air itinerary. In a recent search process, I found, not atypically, that I could fly from city A to city B to city C for less than it cost to fly from city A to city B, which was my actual destination, because direct service is more desirable. But buying the cheaper fare and leaving the airport at city B is called "skiplagging," or "hidden city ticketing," and airlines can be nasty about enforcing their prohibition on it.

On the one hand, I respect the airlines' free-market discretion to charge a higher price for a direct flight than for a less desired routing. On the other hand, there is a confounding absurdity to the idea that I would find myself at home in city B, yet be obligated to board a plane to carry on to someplace I don't want to go. Courts have been hostile to airlines' efforts to penalize skiplaggers financially. But they won't stop an airline from zeroing out a customer's frequent flier miles or even banning the flier from the line.

Like radar detector technologists with speeding enforcers, airlines have played cat and mouse with private and public regulators. Search engines have become more sophisticated in allowing customers to specify parameters, such as bag checks and connections. But the providers vary in options and their efficacy. Kayak tries to help with bag-check fees; Expedia not as much. And the mere act of online price comparison might introduce costs; despite industry denials, there is some evidence that consumers trigger price increases by repeating searches on Kayak and Google.

The search engines anyway can only sort data that the airlines provide, and they are not always forthcoming with details. Some airlines shun intermediary booking sites wholly. Airlines started gaming bag-check fees in 2008. Customer frustration finally precipitated disclosure regulation in 2011.

The regulation failed; bag-check fees are not easy to find. At Frontier and Spirit, the pricing is variable, so a shopper must enter data about a specific flight to get a number that allows price comparison. Meanwhile, bag-check fees have extended to an array of options. United is among airlines that now charge for a carry-on bag, and JetBlue charges for overhead bin space.

Add to the mix that JetBlue and Spirit announced their merger in 2022, even as JetBlue defends its partnership with behemoth American Airlines in litigation with the Justice Department (DOJ). Fewer carriers never results in improved transparency or lower prices for customers. Anti-competitive conglomeration is a natural market tendency, and healthy to a point, but it must be counterbalanced by thoughtful and vigorous antitrust regulation.

Even if DOJ is successful in the present antitrust litigation, the success will be a drop in the bucket of an industry that already is far too monopolized. The United States has nothing like the peanut airlines that blanket Europe. There are legitimate reasons for that deficiency, for example, our larger land mass. But there are plenty of illegitimate reasons, too, including monopoly by air carriers and monopoly in secondary markets, such as airports, baggage handling, and the transportation infrastructure that supports transfers.

The proposed rule announced by the Biden Administration is better than nothing, if it is promulgated intact. But the rule barely scratches the surface of what's needed to move the airline industry into a truly free market, in which consumers have a fighting chance. Extrapolating from past efforts to compel the disclosure of bag-check fees, it's safe to predict that the airlines already are one step ahead, and little will change for the consumer's experience.

A free market is a transparent market with manageable entry barriers. Consumers should be able to compare prices head to head for the same services. The internet should have facilitated the free market and leveled the playing field for buyers. Instead, weak regulation has let industry run amuck and obfuscate pricing. Absolutist laissez-faire capitalism is otherwise known as corporatocracy.

 —

Presently, I'm using two different modalities to try to pursue penalty fees from airlines for flight delays I experienced in the summer under European Union regulatory jurisdiction. When I have outcomes to report, I'll blog about it.

Governor's proposed pay hikes evince typical bureaucratic ignorance of how working people earn

Governor Dan McKee
(Kenneth C. Zirkel CC BY-SA 4.0 via Wikimedia)

Rhode Island Governor Dan McKee's proposal for huge increases to state administrators' pay, on the scale of revising $135,000 upward to $190,000, shows ignorance of how ordinary working people earn.

Our present condition of oppressive inflation has us all thinking a lot about pay. For ordinary working people in America, the only way to avoid an effective pay reduction over time is to change jobs. (Hat tip at my wife for putting words to that observation.) Employers demand "team" or "family" loyalty, 24/7 availability, and uncompensated overtime. But the loyal employee winds up being underpaid for overworking.

Raises don't keep up with inflation, if there are raises at all. In my own compulsorily union job, 2% raises are the contract standard. That rate tracks inflation for about the last 10 years, on average, but not for the preceding 10 years, when the union negotiated the rate, nor for the present year. The union admonishes that the university would give zero were it not for, of course, the union, so workers should be grateful for losing less badly. Then when the pandemic hit, the union asked for bigger pay cuts than the university proposed. So the union lost all credibility with me.

The "family" loyalty employers demand works only one way. At the first sign of hardship, jobs are cut; people in the lower ranks are disposable. Business cries out for relief form taxpayers, even as bottom lines bulge. Profiteering, not necessity, is pushing the present inflation, and there is no will in Washington for protection against price gouging. No wonder some workers are at last wising up to "quiet quitting," which is not quitting at all.

I make OK money, less than market rate for what I do, and less than I was promised since my employer, with union assent, reneged on an agreement, but a lot more than most Rhode Islanders. And I think I'm pretty good at what I do. You can't help but learn something with 25 years' experience.

Yet if I left my job, my employer would be pleased to replace me with someone lacking experience and paid two-thirds or less. Indeed, the norm in legal academia, in step with the private marketplace, is to prefer a 20-something lawyer out of a clerkship over a lateral candidate. At that, there would be young people lined up for my job, eager to be part of the "family," and understandably so in a market that has long forgotten what it means to negotiate terms of employment. I cannot move laterally even if I take the pay cut, because it's not just the discount price employers are after. They want a newly beholden member of the "family."

That's the reality for most American workers: employers expecting commitment and performance akin to indentured servitude from people who work cheap because they know they're easily replaceable for less.

So when I see pay raises of the kind that Governor McKee is proposing, supposedly for the purpose of recruitment and retention, I am outraged. In this New England market, there are plenty of bright, talented people right out of university, law and graduate school, some of them my former students, who are eager to test their skills in public leadership. The present $135,000 pay, double the average state salary, would be a dream offer.

That's not to say, of course, that I wouldn't rather see the market treat people fairly and reward talent and experience. I would rather that everyone in the workforce had pension security, not just public sector workers regardless of merit, willing to commit to one job and place for 20 years; that everyone had access to high-quality healthcare, not just people who let an employer walk all over them because they're afraid of dying from a recurred cancer if they change insurers; and that everyone would have the opportunity to earn a living wage in fewer than 40 hours per week.

But that's not our world. Well, not our country. So in the meantime, I don't care to see public-sector leaders privileged by terms of employment they are unable or unwilling to establish for the rest of us.

McKee's Republican opponent accused him of buying votes. I'm not sure that's true. There aren't enough state department heads to turn an election, and I doubt they have that much sway behind the curtain over the voters who work for them. 

I think it more likely that McKee has calculated that in the present political climate, his reelection as a Rhode Island Democrat is effectively a done deal. So he has the political capital to spend to shore up loyalty in an executive branch that he claimed this term by succession rather than election. (Independents such as me are barred from primary voting in Rhode Island, so I've had no say yet.)

Either way, raises for already well compensated state leaders will be an insult to taxpayers.

UK orders commission to study women's football; rising TV prices warn of commercial monopolization

Karen Carney in 2019
(James Smed CC BY 2.0 via Wikimedia Commons)

The UK has announced "an in-depth review into the future of domestic women’s football" and appointed the decorated footballer and today commentator Karen Carney MBE to chair.

In the United States, this year marked the historic equal pay settlement for the blockbuster Women's National Team (USWNT). And in the UK, England hosted and won the 13th UEFA Women's Euro 2022, delayed two years by the pandemic, in a nail-biter over Germany.

Though to say women's football is coming into its own is an assertion decades late, just as it is decades early to say that women's football has at last been afforded parity with men's in social and commercial recognition.

The UK announced three points of focus for the review:

[1] Assessing the potential audience reach and growth of the game—by considering the value and visibility of women’s and girls’ football in England, including the potential to grow the fanbase for women’s football and whether current growth still supports home-grown talent and can be achieved without overstretching infrastructure.

[2] Examining the financial health of the game and its financial sustainability for the long term. This will include exploring opportunities and ways to support the commercialisation of the women’s game, broadcast revenue opportunities and the sponsorship of women’s football.

[3] Examining the structures within women’s football. This includes the affiliation with men’s teams, prize money, the need for women’s football to adhere to the administrative requirements of the men’s game; and assessing the adequacy, quality, accessibility and prevalence of the facilities available for women’s and girls’ football for the growth and sustainability of the game.

The UK does have already a system for youth development in women's football that looks sophisticated from the U.S. vantage point. Carney is a case in point. Even in the 1990s, Carney came up through the ranks of Birmingham City since age 11. She became one of England's top capped players, scoring 32 goals for the national side from 2005 to 2019.

After three years at Arsenal, in 2009, Carney moved to the United States to play for the Chicago Red Stars, a team then affiliated with the Women's Professional Soccer league (WPS). The WPS was a short-lived installment in the fits and starts of women's pro soccer in the United States. The league collapsed after scarcely a year. Carney returned to England in 2011 to play for five years again for Birmingham City, then three years for Chelsea.

Today, Carney comments on both men's and women's football for Sky Sports and Amazon Prime. The Chicago Red Stars play today as part of the National Women's Soccer League.

Sky, like NBC in the United States, is a division of Comcast. The anti-competitive bundlings of these interrelated companies is making it unaffordable for viewers in the UK and in the United States to follow a team. I'm not sure how long UK viewers and regulators will tolerate the exploitation. Some Latin American governments have been increasingly ruffled about commercial efforts to make access to football a privilege of the elite. I've speculated that in the United States, NBC is effectively killing the goose that laid the golden egg. U.S. viewers will never commit to world-class Premier League football if they're given access only to different teams and lower priority matches week to unpredictable week.

Unfortunately, commercial development of the women's game presents the same conundrum. Commercialization in the priorities of the Carney review is presented as an undisputed good. To be sure, that's where the money is, and it will take money to bring the women's game to gender parity.

At the same time, there is evidence already in the United States that commercial success, ironically, invites audience exclusivity and, thus, narrows public appeal. USWNT television rights presently lie with ESPN and Fox Sports, both divisions of Disney. But Disney+ viewers won't find the USWNT there, nor in the Disney+/ESPN+ bundle, as "+" seems to be a number less than (ESPN)2 and (ESPN)3.

In March, US Soccer awarded USWNT and men's team rights together in an eight-year deal to HBO Max and Turner properties, all divisions of AT&T by way of WarnerMedia. An HBO subscription doesn't come cheap, and different Turner channels require subscription to different bundles.

With media empires now controlling access to football on both sides of the Atlantic, fans' budgets will be stretched thin, and appetite for allegiances to new endeavors, such as expanded women's football, might prove difficult to stir. If the women's game is to be kept from becoming a victim of its own success, the goal of commercialization should be viewed with a discerning eye, wary of monopolization.

A call for evidence in support of the Carney review is expected from the UK Football Association in the coming weeks. HT @ lawyer Paul Maalo, writing for the Wiggin digital commerce team in London.

In 'Operation L,' Polish Special Forces rescued women judges, lawyers from Afghanistan amid chaotic U.S. exit

In an operation little known until recently, Polish Special Forces evacuated female judges and lawyers from Afghanistan in the wake of the chaotic U.S. exit in 2021.

I continue to discover stories of tribulation, heroism, and heartbreak emerging from last summer's debacle. The most haunting report remains one published at the time, though I caught up to it some months later, This American Life's nail-biting Prologue and Act One of "Getting Out."

In an action only recently come to light, Polish Special Forces within the NATO mission carried out "Operation L." As the Taliban took control of Kabul, female public officials, judges, and lawyers received threats of violence and murder. Prompted by the efforts of an Afghan judge and Polish lawyer, the Polish government deployed special forces.

Besides more than 1,000 other persons who escaped Afghanistan on flights organized by Polish authorities, soldiers evacuated to Poland a group of nearly 90 persons comprising women judges, lawyers, prosecutors, and their families.

In collaboration with the Kosciuszko Foundation and the American Bar Association (ABA), the Jagiellonian Law Society (JLS) held a panel presentation and discussion in May, now published on YouTube at KosciuszkoTV, on Operation L. Remarks included those of Judge Anisa Rasooli. In 2018, she was the first woman nominated to the Afghan Supreme Court, though her candidacy was narrowly defeated in the parliament.

Within the ABA, the International Law Section (ILS), Women's Interest Network, and International Human Rights Committee co-sponsored. I'm pleased to be affiliated with the JLS and ABA ILS.

Land dispute implicates 'second element of second path of second stage' of anti-SLAPP analysis, and we're all supposed to pretend the world's better for it

The Supreme Judicial Court studies its anti-SLAPP framework.
Argonne National Laboratory CC BY-NC-SA 2.0 via Flickr

Anti-SLAPP analysis in Massachusetts has become a Rube Goldberg machine disguising little more than an "I know it when I see it" test—

—so I contend, and I offer a Massachusetts Appeals Court case decided Tuesday as evidence.

I've written many times about anti-SLAPP, including my contention that the device can be used meritoriously, but is as often deployed to contrary ends, a sword for Goliath to strike down David; the legion dysfunctions of tort law that anti-SLAPP amplifies; and the possible better solution to be found in process torts and similar related mechanisms of accountability in law practice and procedure.

As Massachusetts courts have struggled to differentiate meritorious actions from SLAPPs under the Commonwealth's characteristically convoluted statute, I ultimately gave up trying to keep up with the ever more complicated thicket of rules and procedures leaching out from appellate decisions. So The Savory Tort should not be your first stop if you're trying to get a granular grip on the current landscape here.

Yet I can't help but write about this most recent appellate opinion. To my reading, the court poorly disguised its doubts about burgeoning and burdensome anti-SLAPP process, and whether time, money, and justice can all be saved at the same time.

The underlying dispute was a land matter. The plaintiff, seeking quiet title and adverse possession, was partially successful in a somewhat protracted litigation. Later, if before the expiry of a three-year limitations period, the respondent from the land action filed the present case, alleging abuse of process and intentional infliction of emotional distress by way of the earlier case. The land plaintiff from the earlier case, now the process and IIED defendant, raised the Massachusetts anti-SLAPP statute in defense.

First, I take the occurrence here of abuse of process as evidence in support of my position that anti-SLAPP is often really about process wrongs. Though here the anti-SLAPP movant is the one accused of abuse of process, it is typical in process tort cases for accusations of misconduct to fly simultaneously in both directions. Regardless of whether a jurisdiction recognizes abuse of process as a cause of action per se, courts have the power to manage process objections with a range of existing tools. I wrote about abuse of process appearing as a defensive mechanism, essentially a better tailored anti-SLAPP device, in South Africa. And my 1L torts class just yesterday read Lee Tat Development, a well reasoned 2018 opinion, included in my casebook, in which the Singapore Court of Appeals both rejected the abuse of process as a tort action and thoroughly discussed alternatives.

The Massachusetts Appeals court devoted a dense 10 pages to the blow by blow between the parties in the instant case. I won't retell it here. What's compelling is what the court had to say about its job in reviewing the Superior Court's anti-SLAPP ruling. Quoting the Supreme Judicial Court (SJC) in the Exxon case, which I reported recently, the Appeals Court's opening line oozes disrelish:

"This case involves yet another example of the 'ever-increasing complexity of the anti-SLAPP case law,' and the 'difficult and time consuming' resolution of special motions to dismiss pursuant to the 'anti-SLAPP' statute."

The partial quotes read like the court is feigning innocent pleading to the Supremes, "These are your words. We're just repeating them."

In analyzing the instant case according to the painstaking legal framework that the SJC has eked out of case experience, the Appeals Court located the present dispute in "the second element of the second path of the second stage."

What is the second element of the second path of the second stage, you ask?

Well, it's that the "judge must 'assess the "totality of the circumstances pertinent to the nonmoving party's asserted primary purpose in bringing its claim," and ... determine whether the nonmoving party's claim constitutes a SLAPP suit.'"

Isn't that the whole game?

I humbly propose that the good ship Commonsense has already sailed when we start talking about a second element of a second path of a second stage.

The Appeals Court divulged a tone somewhere between surprise and pride when it concluded "that the [Superior Court] judge followed the augmented framework sequentially, assiduously, and judiciously." Adjectives "comprehensive" and "thoughtful" followed.

Then, around page 27, the court hints at deeper problems.

The [landowners'] arguments demonstrate some of the difficulties associated with the application of the augmented framework. On one hand, the present action presents as a typical SLAPP case in that a supposedly wealthy developer sued abutters of supposedly modest means for petitioning in court to challenge a development project.... On the other hand, the [landowners] averred that far from being wealthy and powerful developers, they were a real estate broker and part-time bookkeeper attempting to develop a single-family residential property, while the [anti-SLAPP movants] were not the "individual citizens of modest means" contemplated by the anti-SLAPP law. The parties contested each other's motivations and representations. There is an inherent difficulty and, in some cases, prematurity in requiring a judge to make credibility determinations and discern a party's primary motivation predicated on affidavits, pleadings, and proffers, and not on a more complete evidentiary record scrutinized through cross-examination.

Some pages later, the court returned more directly but cautiously to the question of anti-SLAPP efficacy:

In this regard, as we have noted, the [landowners] insist that the present action cries out for a jury trial as the only appropriate way to resolve critical credibility disputes and determine the parties' true motivations. This argument has some force in that there are obvious difficulties in ... requiring judges to be fairly assured that the challenged claim is not a SLAPP suit, absent full discovery and testimony tested through cross-examination. Yet, the special motion to dismiss remedy exists, in large part, to avoid costly litigation and trial.... In any event, it is for the Supreme Judicial Court or the Legislature to address and resolve these concerns should they so choose.

At the tail end of a 34-page appellate opinion on meta-litigation over a small land matter and a lot of bad blood, one might wonder how much "costly litigation" was avoided.

The problem is with anti-SLAPP itself. The court is being asked to adjudge the motives of a litigant in the absence of evidence for the very purpose of avoiding the cost of collecting evidence.

We don't have a SLAPP problem. We have a transaction costs problem. Slapping a bandage on it with anti-SLAPP only invites perverse results. And the harder one tries to get right a call about evidence without the evidence, the more costly and perverse the results will be.

The case is Nyberg v. Wheltle, No. 21-P-791 (Mass. App. Ct. Sept. 13, 2022) (temporary court posting). Judge Eric Neyman wrote the opinion for a unanimous panel.

UPDATE, Sept. 16: Notwithstanding the ill wisdom of anti-SLAPP, the fad flourishes. Europe and the UK continue their headlong advances toward legislation, and a new bill in the U.S. Congress seeks to bring anti-SLAPP to U.S. federal courts. Enjoy, judges! I don't expect that the extinction of the defamation cause of action will do much to remedy our problems with misinformation and vitriolic divisiveness, but that seems to be the experiment we're determined to carry out.

FTC finally notices abuse of customers, shady business practices by car rental industry

In an omnibus resolution late last week, the Federal Trade Commission (FTC) green-lighted investigation of the car rental industry.

Earlier this year, I wrote about the "new lows" of our car rental oligopoly in the United States, including my own experiences with the misleading Hertz "loyalty" program and the manipulation of pickup and drop-off times to draw overage fees.

The resolution broadly compels investigation "[t]o determine whether any persons, partnerships, corporations, or others have engaged or are engaging in deceptive or unfair acts or practices in or affecting commerce in the advertising, marketing, promotion, sale, tracking, or distribution of rental cars."

For context, Frankfurt Kurnit's Jeff Greenbaum wrote in Advertising Law Updates that commissioners ordered similar investigations in July 2021 into "areas such as COVID-19, healthcare, and technology platforms," and in September 2021 into services targeting veterans and children, "algorithmic and biometric bias, deceptive and manipulative conduct online, repair restrictions, and abuse of intellectual property."

The FTC didn't detail the buzz in its bonnet, but they likely heard lawmakers in the spring frowning on Hertz's misreporting of stolen cars. Senator Richard Blumenthal (D-Conn.) wrote Hertz a nasty-gram in March. Forty-seven customers filed suit for false arrest in July, CNN reported (via ABC 7 L.A.), and they're not the only ones.

I documented my rental return this summer in Thunder Bay, Ontario.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

I've started taking the advice of The Points Guy's Summer Hull to take pictures and videos of my rental cars when I pick them up and when I return them. One Mile at a Time advises the same. 

But I'm doubting the utility of it. I'm not sure you can see scratches or dents in the images, especially in dark garages. And, as Hull herself reported, she was called out for alleged damage to the roof, which she had not climbed up to photograph. I wonder whether I should crawl under the car to photograph the undercarriage.

Lately rental companies have presented me with an up-sell option for tire and window insurance, threatening that they're not covered even if a buy the CDW. And don't get me started on involuntary "upgrades" to fuel-inefficient trucks. Even the sedan pictured here, which I rented this summer in Thunder Bay, Ontario, was what I got when I reserved an SUV to tackle unpaved roads.

Meanwhile, my budding occupation as car portraitist is eating into my travel time and my hard drive space.

It seems to me that when customers start having systematically to video-record their interactions with industry to protect themselves against fraud, the problem might be with the industry and not with the customer.

Oh, FTC ... 🤙

Motel not liable for guest's suicide, court rules, despite family warning of risk, asking for room number

CC0 1.0 via Wikimedia Commons

The Massachusetts Appeals Court yesterday rejected Motel 6 liability for the suicide of a guest.

The September 1 decision broke no new ground, but reiterated the interrelationship of duty doctrines in negligence and Massachusetts repudiation of the common law "suicide rule."

Decedent Michael C. Bonafini took his own life in a room of the Motel 6 in Chicopee, Massachusetts, just north of Springfield in 2015. The mother and wife of the decedent blamed the motel because they went there in the night and morning trying to reach him, and motel staff would not reveal his room number. In the morning, the mother told the motel clerk that the decedent was at risk of suicide. The clerk called the room, but the decedent answered and immediately hung up. He was found dead when the motel manager entered the room at noon checkout time.

The case implicates potentially conflicting duty relationships in the common law of negligence. The reputed "suicide rule" of historical common law held that there can be no liability for a suicide. At the same time, common law recognizes an affirmative duty of an innkeeper to a guest, and the Massachusetts Supreme Judicial Court has recognized a duty to prevent suicide in some circumstances.

Historically, courts were loath to impose accident liability for an intentional act of self-harm on an earlier-in-time actor, especially when the intentional act was an attempt to commit suicide. The conclusion could be reached either by ruling that there was no duty to prevent another from intentional self-harm, which usually was criminalized, or by reasoning that the abrupt, violent, and intentional act of suicide dispositively interrupted the requisite chain of proximate causation.

It's arguable that there never was a "suicide rule," per se, rather a doctrine of duty and causation that was informed by social norms. Norms change. Suicide is less often today regarded as a matter for criminal justice, even if criminal laws remain on the books to justify the intervention of authorities. The trend in tort law is to employ the usual doctrines of duty and causation to analyze the facts of each case. That said, the "suicide rule" still holds sway, because the doctrines of duty and causation still disfavor the imposition of an affirmative duty to prevent injury and disfavor negligence liability for causal actors earlier in time than intentional injurers (this blog, Feb. 9, 2021).

On the question of duty, the instant case is complicated in two respects, one on the law and one on the facts. First, an innkeeper-guest relationship is one in which common law historically does impose an affirmative duty, on the innkeeper for the protection of the guest. Second, insofar as an affirmative duty might exist, it can be predicated on knowledge of risk, which the decedent's mother gave to the motel clerk.

The innkeeper-guest relationship did not get the plaintiffs to the finish line. The purpose of the common law duty is to oblige an innkeeper, like a landlord, to protect the guest from risks the innkeeper might know about, and the guest does not, in the vein of premises liability; or, at the extreme, risks of any nature that an innkeeper might be better positioned to mitigate than a guest can.

The court summarized past cases in which Massachusetts courts recognized an innkeeper-to-guest duty: failure to prevent stabbing by intruder for want of an adequate security system; failure to protect guest from fire set by arsonist; and failure to prevent battery by another guest. All three examples implicate an intermediate intentional, and tortious or criminal actor. But in the first two cases, the causal risks relate to the premises: a security system and fire response. There is no intermediately causal premises risk in the instant case.

The battery case seems more on point, and the court here did not make the distinction plain. But on the facts of that case, the plaintiff was stabbed at an event for which the defendant innkeeper had hired security guards. The case is best understood as a duty voluntarily undertaken by the defendant, and then executed negligently. In one count based on innkeeper-guest duty and one count based on ordinary negligence, the plaintiff complained that the security guards had negligently failed to restrain a drunken patron. The jury returned a generalized plaintiff's verdict that the court concluded was supported by the evidence.

So the problem for the plaintiff-representative in the instant case is that the decedent was not injured by the premises, and the defendant motel voluntarily undertook no duty to protect the decedent beyond the usual duties of an innkeeper. In fact, the innkeeper-guest duty arguably cuts against the plaintiff's position. Were a clerk to violate a guest's privacy by revealing the room number to a requester concealing ill intentions, the motel could be held liable for injury inflicted on the guest by the requester-intruder.

That said, the decedent's mother and wife were understandably frustrated with the clerk's stubbornness, under the circumstances, and their fears were vindicated tragically. The plaintiff's best strategy was to tie the alleged misconduct of the defendant to the responsibilities of an innkeeper, moving the causal focus away from the decedent's intentional act and changing the conversation from negligent failure to act to negligent action. In this vein, the plaintiff alleged not that the clerk necessarily should have revealed the room number, but that, instead of telephoning and giving up, the clerk should have summoned police to conduct a wellness check.

The court did not indulge the plaintiff's theory long enough to parse the details. But the basic problem even with the plaintiff's best gloss on the case is that the mother and wife could have called the police, too, and did not. Indeed, the court, fairly or not, faulted the family for being coy in characterizing the risk: "Indeed, all that is alleged is that [the] mother and wife informed motel employees that [decedent] was at risk of suicide, and asked for his room number so they could assist him. They did not tell the employees that [he] had stated an intention or plan to commit suicide or that he had recently attempted suicide." Perhaps the family feared negative repercussions of police intervention.

The plaintiff's case was buoyed modestly if insufficiently by Massachusetts high court holdings that a university may be held liable for a student's suicide. In 2018, the Supreme Judicial Court ruled that MIT did not owe a duty to a student who committed suicide on the facts of the case (this blog, May 7, 2018). But the court left the door open to a different analysis on different facts, and, the next year, the court allowed a case to go forward against Harvard (this blog, Sept. 30, 2019).

The Appeals Court distinguished the instant case from the Harvard case because the motel did not have enough information to ground an affirmative duty. In the Harvard case, the court looked to "stated plans or intentions to commit suicide." Here, again, the mother and daughter were coy as to the severity of the risk. And, the court added, there was no evidence that anything the decedent said or did suggested suicidal intentions to motel staff. Indeed, while a university knows a lot about its students, sometimes even affirmatively providing mental healthcare, innkeepers, the court opined, "usually are unlikely to know much—if anything—about their guests."

Incidentally, criminal liability for another person's suicide is a different problem. I mention it only because Massachusetts is the state in which Michelle Carter was convicted of involuntary manslaughter in the suicide death of Conrad Roy. A civil case was settled in 2019. Just a couple of weeks ago, I watched The Girl from Plainville (2022), a serial dramatization, and I don't recommend it. Maybe too soon to be reminded that the matter was a tragedy for everyone involved.

The instant case in the Appeals Court is Bonafini v. G6 Hospitality, LLC, No. 20-P-1409 (Sept. 1, 2022) (temporary court posting). Justice Gabrielle R. Wolohojian wrote the opinion of the unanimous panel.

Shoe on other foot as US claims sovereign immunity in foreign court for firing Malaysian embassy worker

The U.S. Embassy in KL commemorates flight MH17 in 2014.
(Embassy photo, public domain, via Flickr)

Malaysian courts have been wrestling with the big bear of foreign sovereign immunity in an ursa minor case arising from the dismissal of a security guard from the U.S. Embassy in Kuala Lumpur.

As a torts and comparative law teacher, I'm interested in how courts manage foreign sovereign immunity. But most of the cases I read are about foreign-state respondents in U.S. courts. I suppose the inverse, the United States as respondent in a foreign court, happens often. But it doesn't often make my newsfeed.

Well, this story did. The shoe is on the other foot with the United States seeking to evade the hearing of an employment grievance in Malaysian courts.

Consistently with international norms, in the United States, the Foreign Sovereign Immunities Act (FSIA) (on this blog) generally codifies sovereign immunity for foreign states in U.S. courts. But an exception pertains for "commercial activity." 

The commercial exception, also consistent with international norms, only makes sense. When a foreign country is acting like any other commercial actor, say, buying toilet paper for the mission restroom, it should not be able to claim sovereign immunity to override its obligation to pay for the toilet paper (contract), nor to escape liability for its fraud in the transaction (tort). Sovereign immunity is rather reserved for when a state acts as a state, doing things only states can do, such as signing treaties and, however unfortunately, waging war—usually.

The exception is easier understood in the abstract than in application. In a case bouncing around the Second Circuit, and reaching the U.S. Supreme Court in 2018 on a related but different question, Chinese vitamin makers claim immunity from U.S. antitrust law. The respondent makers say that they are agents of the Chinese state insofar as they are compelled by Chinese economic regulations to fix prices. U.S. competitors see the cut-rate pricing as none other than anti-competitive commercial activity. The question arises under trade treaty, but the problem is analogous to the FSIA distinction.

Also regarding China, the commercial activity exception was one of the ways that state lawsuits against the People's Republic over the coronavirus pandemic tried to thread the needle on sovereign immunity. In the lawsuit filed in 2020 by the State of Missouri against the PRC filed in 2020, the Missouri Attorney General characterized the Chinese lab in Wuhan as a commercial healthcare enterprise. The district court disagreed in July, and the AG is appealing.

In the Malaysian case, according to the allegations, the U.S. Embassy gave no reason when it terminated a security guard in 2008 after about a decade's service. The security guard probably would not be owed any explanation under U.S. law. But the Malaysian Industrial Relations Act is not so permissive, authorizing complaints to the labor authority upon dismissal "without just cause or excuse."

The opinion of the Malaysian Court of Appeal in the case hints at some bad blood in the workplace and a bad taste left in the mouth of the dismissed guard: "He said he had been victimised by another staff named Rama who had tried to tarnish his good record as he had raised the matter of unreasonable management of the security post.... He said he could not believe that the US Embassy that is recognised the world over as the champion of human rights could have done this to a security guard like him."

Inexplicably, "a long languishing silence lasting some 10 years" followed the administrative complaint, the Court of Appeal observed. "Nobody involved and interested in this case heard anything from anyone. It is always difficult to interpret silence. That silence was broken with a letter from the DGIR [labor authority] calling for a conciliation meeting [in] September 2018.... There was no settlement reached.

"Unbeknown to the workman, the Embassy had [in] March 2019 sent a representation to the DGIR arguing that sovereign immunity applied and that the matter should not be referred at all to the Industrial Court." The United States thereafter succeeded in having the case removed to the Malaysian high court, a general-jurisdiction trial court.

The high court dismissed the case on grounds of U.S. foreign sovereign immunity. The Court of Appeal reversed, holding that the case should not have been removed. The Court of Appeal remanded to the Industrial Court, a specialized labor court, to take evidence on the immunity question. The Malaysian Federal Court recently affirmed the remand, lawyers of Gan Partnership in Kuala Lumpur have reported (Lexology subscription).

Like the FSIA, Malaysian law on foreign sovereign immunity distinguishes commercial activity, jure gestionis, from state action, jure imperii. The dismissed guard argues that his was a simple employment contract, so the United States was acting in a commercial capacity and is not entitled to sovereign immunity. The United States argues that the security of its embassy is a diplomatic matter entitled to the exercise of sovereign discretion.

The case in the Court of Appeal was Letchimanan v. United States (May 18, 2021). Gan Khong Aik and Lee (Ashley) Sze Ching reported the Federal Court affirmance to the International Law Section of the American Bar Association for Lexology on August 30 (subscription). Khong Aik and Sze Ching wrote about the Court of Appeal decision, United States v. Menteri Sumber Manusia (Minister of Human Resources) Malaysia, in July 2021 (Lexology subscription), and with Foo Yuen Wah, they wrote about the high court decision in August 2020 (Lexology subscription).