Injured contractor finds no award in ruling spanning worker comp, premises liability, conflict of law

Roof collapsed by snow (illustrative; not this case).
Richard Allaway via Flickr CC BY 2.0

A worker hired to remedy a dangerous property condition could not rely on the known danger to recover against the landowner, the Massachusetts Appeals Court held in mid-September.

On that distinctive fact pattern, the court's thorough opinion gave textbook treatment to issues in worker compensation, conflict of law, and premises liability.

The defendant Massachusetts landowner hired a Rhode Island home improvement company to raze a garage collapsed by snow. Hired in turn by the company, the plaintiff found the garage in its dilapidated state and expressed reservations about safety. As the plaintiff inspected the structure, it further collapsed and pinned him, inflicting bilateral fractures to both legs.

The plaintiff ultimately recovered $19,000 from R.I. worker comp. For further recovery, he sued the company, the company principal, and the landowner. The Appeals Court affirmed dismissal for all defendants.

Worker compensation scope: Worker comp covers employees, not independent contractors. R.I. worker comp initially rejected plaintiff's claim on the grounds that he was an independent contractor rather than an employee. Later evidence indicated that the plaintiff might have signed a document acknowledging status as an independent contractor. Nevertheless, the plaintiff sued over the question. The worker comp system settled for $19,000.

The exclusion of independent contractors from worker comp renders a significant gap in the American social safety net. Highly regulated industries might require that independent contractors self-insure. But a legion of workers, especially in the gig economy, works in a gray area with no contingency for catastrophic loss. The situation is worsened by industry's increased reliance on, and sometimes exploitation of, independent contractors, facilitated in part by the post-pandemic upswing in remote work.

America's runaway healthcare costs and lack of universal medical insurance compound the independent contractor's woes when injury does occur. I imagine that $19,000 did not come close to covering the plaintiff's bills for such serious injury. Plaintiff's attorney fees must be accounted for as well. The plaintiff here might have acknowledged contractor status and aimed for a better settlement against an insurer, if available, for the company or homeowner. That would have been a gamble. The top takeaway for contractors or their attorneys is that self-insurance is a necessary cost of doing business.

Worker compensation bar: One who recovers in worker comp surrenders tort claims against the employer and its agents. The fundamental premise of worker comp is that it supersedes, so bars, tort claims. The plaintiff tried to augment the worker comp recovery by suing the company principal and the landowner. The plaintiff also sued the company itself upon a theory that did not pan out on the facts, that misrepresentation of the condition of the property vitiated the worker comp bar.

The plaintiff's claim necessarily failed against the company principal. The worker comp bar naturally extends to the agents of the employer, besides the company. Employers usually—though not necessarily; caution by an employee entering into the contract of employment always is advisable—indemnify their employees for negligence in the scope of employment. Plaintiffs outside the workplace usually are more interested in pursuing employers than employees, because the employer has more money and an insurer. If a plaintiff could pursue an employer's agents, the worker comp bar would be undermined.

The worker comp bar also undoes the largely historical common law "fellow servant" rule, which released an employer from responsibility for an injury inflicted on one employee by another, but thereby cleared the way for an employee to sue a co-worker. Relieving workers of the harsh consequences of that rule in the age of industry was in fact a key reason the worker comp system came about in America.

Why America has a worker comp system, why it remains narrow in scope, and how it's been diminished by reforms in recent decades are all fascinating stories in their own rights. New Zealand's unusually broad accident compensation system, which substantially supersedes tort litigation over accidents, grew out of worker comp reform in the 1970s. Suffice to say here and now, in its core scope of application, worker comp is a "grand bargain" in which employers fund the system proactively in exchange for workers' surrender of tort claims. That's good for workers in theory, but raises, again, the problem that worker compensation schedules have not kept up with the skyrocketing costs of living and healthcare.

Conflict of laws: the worker comp bar is practically universal vis-à-vis employers and their agents. The plaintiff tried as well to circumnavigate the worker comp bar upon the theory that worker compensation was paid by the company's R.I. worker comp insurer, and that the R.I. worker comp bar does not necessarily preclude tort claims in Massachusetts.

The plaintiff was right that Massachusetts law applied to the case.  Upon conflict-of-law analysis to ascertain the state with predominant interest in the matter, the court agreed that an injury in Massachusetts arising from the condition of a premises in Massachusetts drew Massachusetts substantive law to the problem.

Nevertheless, the court recognized the applicability of the R.I. worker comp bar. The Restatement (Second) of Conflict of Laws opines that a worker comp bar should apply to action in any state. And both Rhode Island and Massachusetts observe both the worker comp bar and its application to companies and their agents. Thus, Massachusetts public policy bore no hostility to importation of the R.I. rule, even to prelude tort claims under Massachusetts substantive law.

Premises liability: A landowner cannot be liable to an invitee for a known dangerous condition when the invitee was invited for the very purpose of abating the dangerous condition.  The worker comp bar does not preclude claims against third parties to the employment relationship. The third party is not part of the grand bargain. Indeed, under state law, typically, an employee or a worker comp system in subrogation may allege a third party's responsibility for loss. An employee successful in litigation might owe reimbursement to the worker comp system. Correspondingly, a worker comp system might owe excess recovery to the employee. Here, then, the worker comp bar did not preclude the plaintiff's suit against the landowner in negligence.

The defendant landowner asserted that the dangerous state of the collapsed garage was "open and obvious," thus invoking a historical common law doctrine.  The fuzzy doctrine has been said to mean many things in many scenarios. In the instant case, the defendant invoked the doctrine to say that the obvious risks of the dilapidated garage should relieve the landowner of the usual responsibility owed to a commercial invitee.

Massachusetts no longer recognizes the common law framework that applies different liability rules depending whether a plaintiff's purpose is commercial (invitee) or social (licensee). The contemporary approach is to charge the jury to consider "reasonableness under the circumstances." There might not be a stark practical difference between the old and new approaches, because the common law framework was grounded in the proposition that as a matter of ordinary practice, "reasonable" people conduct themselves differently relative to invitees and social guests, respectively.

Similarly, the contemporary approach is to reject "open and obvious" as any kind of magical incantation. Rather, the openness and obviousness of the risk also is part of what a court and jury can be expected to consider in the reasonableness analysis. Here, the court ruled accordingly that "open and obvious" is not a rule per se.

However, "open and obvious" remains important as a matter of fact. And on these facts, the openness and obviousness of the risk of the collapsed garage proved dispositive—not because of a blanket rule favoring defendants, but because of the specific reason the plaintiff was invited to the property: to abate the very same risk. The court reasoned:

The [cited] authorities encompass the commonsense recognition that a landowner who has a hazardous condition on his or her property may need to invite onto the property another person or persons to remedy that condition. The law, of course, wishes to encourage behavior that remedies hazardous conditions.... And the person engaged to remedy such a hazardous condition differs markedly from an ordinary invitee. For one thing, there usually will be little question that such a person is aware of the danger, and thus there should be no need for warning. Furthermore, such a person will have held him- or herself out as capable of remedying the condition. Under those circumstances, it is reasonable for the law to reallocate the risk of harm from the property owner to the person who has sought to take on, and to alleviate, the hazard.

The case is Ward v. Schnurr, No. 22-P-372 (Mass. App. Ct. Sept. 13, 2023). Justice John Englander wrote the unanimous opinion of a panel that also comprised Justices Henry and Desmond.

Per 'modern ethical standards,' Mass. museum surrenders $5m bronze for repatriation to Turkey

Portrait of  Lady (AD 160-180)

Public domain/Daderot via Wikimedia Commons

A story of art crime touched Massachusetts early in September, as the Worcester Art Museum let go of a bronze bust of estimated $5m worth for repatriation to Turkey.

The museum purchased Portrait of a Lady (A Daughter of Marcus Aurelius?) in 1966 from Robert E. Hecht, an antiquities dealer. If that name is familiar to American easterners, yes, Hecht was a descendant of the Hechts, 19th century Jewish immigrants from Germany who started a department store chain in Baltimore, Md., my hometown, in 1857. What became "Hecht's" had 80 or more stores in the mid-Atlantic region. When I was a kid, my maternal grandmother loved to peruse the goods at what she still called "Hecht Brothers." The company was swallowed by Macy's in 2006.

Robert Hecht had a checkered career as an antiquities dealer based in Paris. He died in 2012 at age 92. In his obituary, the N.Y. Times described Hecht as "an American expatriate antiquities dealer who skipped in and out of trouble for much of his career, weathering accusations that he trafficked in illicit artifacts." Hecht denied ever having handled stolen goods knowingly. Late in life, he was charged with trafficking in Italy, but the Italian court ruled that the statute of limitations had run.

Hecht Co., Hyattsville, Md., 1959
Library of Congress

Revelation of Portrait's illicit provenance came to the Worcester Art Museum from the office of Manhattan District Attorney Alvin L. Bragg, Jr. And if that name sounds familiar, yes, he's the one on TV charging former President Donald Trump with falsifying business records—for my money, charges of a nature that should have been pursued decades ago and always should have been the people's focus, more than recent, politically charged allegations related to the election in Georgia or insurrection in D.C.

When not on TV for a press conference about Trump charges, Bragg has become famous in the art world for his aggressive campaign to repatriate stolen works. Portrait is but one entry in an extraordinary catalog. A recent press release, for example, announced the return of Nazi-looted art to families of Holocaust victims. The work of the Antiquities Trafficking Unit is impressive, though the D.A.'s press releases read like a vanity project. Must every headline begin with "D.A. Bragg"?

I was keen to see what kind of legal documents the D.A. would file in Massachusetts to take possession of stolen antiquities. But there are no filings that I have found. The Worcester Art Museum "cooperated with the investigation" according to its press release and surrendered Portrait voluntarily.

Renaissance Court, Worcester Art Museum, 2021

Peter E via Flickr CC BY-NC-SA 2.0

The museum not only cooperated, but the press release doth protest too much, methinks, to locate the museum on the moral high ground. Upon purchase of Portrait in 1966, the museum "was provided with limited information about the object's history," the press release said. The D.A. "provided new information" in 2023. "The Museum had never previously received a claim or learned of any defect in ownership."

Colgate art history professor Elizabeth Marlowe doesn't buy it. A student of Bubon, the ancient Roman capital of Lycia, where the Bronze was found in Turkey, Marlowe told WGBH that the museum in 1966 "would have known ... that Hecht was 'a totally shady character'" who had been banned from Turkey, and that the Roman object came from Turkey. Professor of art crime at the John Jay College of Criminal Justice Erin Thompson told WGBH that the acquisition was "like Pablo Escobar giving you a big pile of white powder and claiming you had no suspicion it could be drugs."

Benin Bronze of a Portuguese soldier
at the National Museum of Nigeria, Lagos, 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

Notwithstanding its protestations, the museum acknowledged that "greater diligence" is brought to bear on acquisition today. Director Matthias Waschek said in the press release, "The ethical standards applicable to museums are much changed since the 1960s, and the Museum is committed to managing its collection consistent[ly] with modern ethical standards."

That statement rings true, and I don't blame the museum. To the contrary, current ethical standards are still in flux, and museums are caught in the middle. John Oliver lambasted museums in 2022. While I loved the Oliver segment and agree with his pro-repatriation stance in principle, I find the reality more complicated.

Oliver correctly recognized that statements from western institutions fretting about the security of antiquities if returned to their home countries feel cringeworthily patronizing and colonialist. Oliver highlighted the case of the Benin Bronzes. Nigeria has demanded that the British Museum return more than 900 bronze sculptures the British Empire looted from the Nigerian Kingdom of Benin in today's Edo State (not to be confused with the country of Benin). When I visited Nigeria in 2022, I saw replicas of missing pieces. I met Nigerian people who clearly felt a present and keen sense of injury in the absence of cherished artifacts that define tribal history, culture, and identity. Nigerians should be able to see and experience their own history in museums, just like people in Britain and America. Yet the vast majority of Nigerians will never have the resources to visit the British Museum.

Me and an oversized jollof rice pot at the National Museum, Lagos, 2022.
Learn more at the Kitchen Butterfly.
RJ Peltz-Steele CC BY-NC-SA 4.0

At the same time, I watched in horror at the destruction of the Buddhas of Bamiyan in 2001 and the sacking of the Cairo museum in 2013, the latter of which I visited in the 20-aughts. The Antiques Coalition documents devastating losses in the 2010s at museums in Egypt, Iraq, Syria, Mali, and Yemen. Say what you will about western imperialism, and there's plenty to say, museum sackings are much less common in London and D.C. When asked by a mate of mine how Nigeria would safeguard the bronzes—the country is in civil war in the north—a museum guide said that the items should be returned along with financial support to build secure facilities. OK. But already, then, the matter becomes more complicated, revealing that there's a legitimate debate to be had about how and where we care for the world's cultural heritage.

Founded in 1896, the Worcester Art Museum has plenty to see. The property houses a 12th-century French Benedictine priory, rebuilt stone by stone in 1933. The museum's 38,000-item collection includes more than 2,000 armor pieces, acquired only in 2013 and featured in rotating displays. A special exhibition from October to March, "Freedom to Say What I Please," will feature the multimedia art of activist, artist, and author Faith Ringgold.

Armenia, Azerbaijan maintain tentative ceasefire

Yerevan, Armenia: Opera House at center.
RJ Peltz-Steele CC BY-NC-SA 4.0

At the time of this writing, an uneasy but long sought peace is holding in the Armenia-Azerbaijan conflict over the Nagorno-Karabakh region.

Reuters has a good overview of the current situation. The history of the conflict, dating to the Soviet era, defies succinct explication. Suffice to say, hard feelings run deep. It's the kind of conflict that claims the lives of soldiers who were born after it started, the kind of intractable tit for tat that has run so long, no one remembers, as if it would matter, who inflicted the first insult.

Baku, Azerbaijan: me in my happy place.
RJ Peltz-Steele CC BY-NC-SA 4.0

In an offensive last week, Azerbaijan gained control of disputed territory it had possessed on paper but not on the ground. A deal was struck to trade the surrender of separatists for the peaceable integration of ethnic Armenians into Azerbaijan. Still, the peace has been tested by skirmishes and allegations of human rights violations. Armenian and Azerbaijani authorities have traded accusations and threats. Presently, the ceasefire is holding. But ethnic Armenians untrusting of Azerbaijan's pledge or unwilling to be integrated are migrating by the thousands from the disputed region to Armenia.

Armenian flag, near Yerevan
RJ Peltz-Steele CC BY-NC-SA 4.0

I visited both Armenia and Azerbaijan in the spring. I met young veterans on both sides. Some had fared all right with lighter duties. Many had seen hot conflict and bore scars both physical and emotional.

What saddened me most was how much the vets were the same on both sides: good young people whose lives had been upended. They believed in their causes, but could scarcely cite a motivation besides a string of offenses of the other. A few even acknowledged that they saw themselves across the front lines and felt remorse for being thrust into conflict with people their own age, as foreign to the origins of the war as they were. Vets on both sides spoke of their families' fears for their safety and their own fears that if they have children, they will be drafted into the same cycle of war.

Azerbaijani flag, Baku
RJ Peltz-Steele CC BY-NC-SA 4.0

At risk of oversimplifying the conflict with an outsider's lamentation on the futility of it all, how could I not wonder at the opportunity cost in so much energy and so many lives, and at whether or why a political solution cannot be found to end the fear and sacrifice.

I enjoyed my time in both countries immensely. Both countries boast stunning sights, from Armenia's extraordinary Matenadaran, a library of ancient manuscripts in Yerevan (reminding me of my beloved Old Library at Trinity Dublin), and ancient Temple of Garni, to Azerbaijan's Ateshgah Fire Temple and towering Bibi-Heybat Mosque.

RJ Peltz-Steele
CC BY-NC-SA 4.0

In Providence, Rhode Island, this weekend—not meaning to choose sides, but seizing an opportunity—my wife and I went to Armenia Fest RI, where the ex-pat and ethnic Armenian community put on a fabulous celebration of food, music, and culture. The event, on Armenia Street aside the Sts. Vartanantz Armenian Apostolic Church, was well attended despite a pouring rain. Here are some images (RJ Peltz-Steele CC BY-NC-SA 4.0), savory and sweet.

War rages in Sudan; lives lost top 14,000 in North Africa

The sad news just keeps coming from the African continent: this morning, heartbreaking images of Khartoum's Greater Nile Petroleum (GNP) Tower engulfed in flames (embed below from Al Arabiya English on X; left: my photo of the tower in 2020, CC BY-NC-SA 4.0).

I've written previously about Sudan: before civil war erupted, its promising economic prosperity and a friend's nascent tourism business. At last check, that friend at least was safe with family away from Khartoum.

Watch: Sudan’s iconic Greater Nile Petroleum tower in Khartoum is engulfed in flames as the war between rival forces enters sixth month. It is yet unclear what caused the fire through the tower.#Sudan #Khartoum

Read more: https://t.co/Kmbnzv4YI8 pic.twitter.com/iAt8x62fez

— Al Arabiya English (@AlArabiya_Eng) September 18, 2023

The location of the GNP Tower makes its loss all the more troubling. The tower sits on a small peninsula, jutting out into the confluence of the Blue Nile and White Nile Rivers. The peninsula is the site of office buildings for oil companies, banks, and the government's Ministry of Investment. Those aren't military targets. The area, which I walked through in 2020 (right: my photo from the water, at the river confluence, CC BY-NC-SA 4.0), had been under the control of the Sudanese Armed Forces (SAF, which is fighting the Rapid Support Forces, RSF).

The two sides blame each other for starting the tower fire. Either way, extension of the destruction into this finance zone is yet another sign that little of Khartoum's civilian infrastructure will survive the war. Observers have said that the city will not be fit to remain the capital when the conflict ends. The SAF already has indicated its intention to relocate the government to Port Sudan, on the Red Sea. Accordingly, and alarmingly, the war is reaching out to both ends of the country.

Meanwhile, in North Africa, Libya and Morocco continue to cope with the devastation of natural disasters.

I've not been to Libya; ABC's Ian Pannell is there now. I have seen Morocco's scenic Ourika River valley, which is in the earthquake zone (N.Y. Times). Homes perched on hillsides and single-path footbridges suspended across the river ordinarily are what makes the area picturesque. But those conditions are not primed for earthquake resistance.

Here are some photos from the Ourika River valley in better times (all 2016, RJ Peltz-Steele CC BY-NC-SA 4.0; latter, me with travel mates from Mauritius).

My prayers are for all of the people suffering in these disaster zones.

Patents 'sound less NASA and more Starfleet,' attorney says; is sci-fi's 'anti-gravity' already in the works?

Artist conception of Gravity Probe B and space-time.
NASA Universe via Flickr CC BY 2.0

A number of U.S. patent filings over the last decade point to the development of "anti-gravity" and might evidence the reverse engineering of alien technology in government possession, L.A. attorney Puya Partow-Navid wrote for Seyfarth late last month.

British astronomer Chris Impey cataloged for PBS News Hour the "flurry of activity over the past few years" fueling speculation about "unidentified anomalous phenomena" (UAP), also known as unidentified flying objects (UFOs), including congressional hearings in July. NASA released a report Thursday concluding that "we do not presently have the body of data needed to make definitive, scientific conclusions about UAP," but calling for more and better study.

In his article for Seyfarth, Partow-Navid listed four patent applications from 2016 to 2022 that suggest the inevitable invention of a gravitational propulsion system. Such a system could counterpose gravitational waves and the vacuum of space to move a spacecraft without propellant. A couple of the inventions "sound less NASA and more Starfleet," Partow-Navid wrote, thus evoking the connection to aliens. 

Mastery of gravity is a device of science fiction as old as the genre itself. Artificial gravity is essential to make human life in space plausible. Arthur C. Clarke in 2001 described ships that rotated around an axis to simulate gravity with centrifugal force. That's a scientifically sound method, if we can engineer and build the thing. When science fiction came to film and television in the 20th century, the zero-gravity special effects of Interstellar were either impossible or impossibly expensive, so artificial-gravity technology usually was just assumed.

"I was progressing in great leaps and bounds."
Illustration from H.G. Wells,
First Men on the Moon (1901)
Public domain via Internet Archive

If we can create gravity, we can cancel it out, futurists figure. H.G. Wells imagined a shield that would negate gravity as early as his 1901 First Men on the Moon. In the 1960s, Star Trek imagined anti-gravity to move heavy objects with minimal effort and even build cloud cities (a few years before (or "a long time" after) Lando Calrissian called one home). (See generally the Lawrence M. Krauss classic, The Physics of Star Trek (1995).) Gravity cancellation, though, was a solid venture into the hypothetical; there is no shortcut such as centrifugal force to get there. Fortunately for science fiction film and TV, anti-gravity is the easier deception.

Nevertheless, and the possible infusion of alien know-how notwithstanding, anti-gravity has been a subject of serious science and concerted military investigation on and off since World War II. Einstein's theory of general relativity was key, because if gravity is a force relative to mass and motion, then we might be able to manipulate it similarly. The door would be open not only to gravitational propulsion; even "warp drive" would be on the table: travel to a distant destination without actually crossing the space in between.

The patent applications that Partow-Navid cites are really not so far off the leading edge of human science. Claims of gravity manipulation have been floating around the scientific peer review space for three decades now. Even if no effort has come to verifiable fruition, the experiments are striking out in a direction promising enough to be credible and tantalizing.

That's not to discount that alien tech could offer a welcome assist. Pessimists, or realists?, who pooh-pooh warp drive point out that if it were so readily achievable that we would get there in the cosmically brief era of human scientific development, then some of the statistically probable prevalence of alien civilizations in the universe should be already in orbit around our planet.

Maybe they are.

The article is Puya Partow-Navid, Unraveling the UAP Enigma: Are Patents the Gateway to Alien Tech?, Seyfarth (Aug. 29, 2023).

£5.41m reg fine over energy traders' WhatsApps cautions attorneys also on retention, spoliation, FOI

Electrical pylons on the Leeds-Liverpool Canal, England.
Mr T via Geograph CC BY-SA 2.0

The British gas and electric regulatory authority (Ofgem) fined investment bank Morgan Stanley £5.41m in late August for failure to record and retain traders' messages on WhatsApp.

News of the fine has shaken up the British compliance sector. The case should grab the attention of compliance attorneys, of course, but also corporate counsel and government attorneys throughout the Anglo-American legal system.

Wholesale energy traders discussed market transactions on WhatsApp on their personal devices. Rules on market manipulation and insider trading require that communications "relevant" to trading be documented and retained for Ofgem review; the messages were not.

The enforcement action therefore represents a wake-up call, but not a new standard. The case probably resonated for two reasons. First, employee use of personal devices for communication is increasingly common, if not expected, and it's difficult to police. Second, WhatsApp is known for its end-to-end encryption, a feature that makes it appealing to users, but incompatible with regulatory transparency.

I'm not a fin reg wonk, but it was those characteristics of the case that caught my attention. The enforcement action should remind corporate counsel that record retention requirements cut across devices and applications and can even follow employees home. Moreover, when records might be perceived reasonably to have potential relevance in future litigation, the cost of non-retention in spoliation can be steep.

Similarly, the enforcement action should remind government authorities that neither non-public location nor software-driven encryption countermands record retention and freedom-of-information laws. Transparency law was once vexed by problems such as proprietary access and private location; it is no longer. Just ask Hillary Clinton about her State Department emails or Donald Trump about his bathtub war plans.

The enforcement action is Ofgem, Penalty Notice: Finding That Morgan Stanley & Co. International PLC Has Breached Regulation 8 of the Electricity and Gas (Market Integrity and Transparency) (Enforcement etc.) Regulations 2013 (the REMIT Enforcement Regulations) (Aug. 23, 2023).

U.S. Soccer, FIFA lose antitrust appeal; defense shows short-sighted strategy to develop soccer in America

Cristiano Ronaldo plays for Real Madrid against Barcelona in 2011.
Jan S0L0 via Flickr CC BY-SA 2.0

U.S. Soccer and the Fédération Internationale de Football Association (FIFA) will have to defend an antitrust action in federal court for refusing to permit a Spanish La Liga match on U.S. soil, the Second Circuit ruled in March. 

In 2017, world famous football (soccer) clubs Real Madrid and Barcelona faced off in an exhibition game in Miami. The match was fabulously lucrative for the commercial interests behind it, including organizer Relevant Sports, LLC, based in New York.

World sport likes the United States, because our infrastructure practically prints money. Americans, especially the top echelons of the wealthy, have been habitualized by our unregulated and often subsidized sport-and-entertainment monopolists to pay more than people elsewhere in the world to see live events, both directly for seats and indirectly in media rights.

Incidentally, that's the principal reason that bringing the FIFA (men's) World Cup back to North America in 2026 was not really a hard sell, notwithstanding modest public enthusiasm and the theater of the global bidding process. The 2026 co-hosts, the United States, Canada, and Mexico, likely did not even have to pay the half-billion dollars that Qatar apparently spent, mostly to FIFA executive committee members, in, uh, let's say, "incentives," in siting the 2022 World Cup (about my World-Cup-2022-contemporaneous lecture; Qatar on this blog): check out the investigative exclusive by Armin Rosen for Tablet (link from inset), published late last month, using U.S. court records in collateral matters.

Understandably, then, Relevant Sports wanted to maintain the momentum of the 2017 exhibition match. The company proposed that the Spanish La Liga subsequently might site a regular-season, full-stakes match in the United States. 

However, FIFA rules say that a match cannot be held in a country foreign to both sides without the approval of the football federation in the host country. U.S. Soccer said no.

Relevant sued, alleging that the rule improperly protects domestic football from being overshadowed, and therefore diminished in interest and income, by high-profile competitors. U.S. Soccer and FIFA defend the system on the merits under antitrust law, and, saliently in this intermediate disposition, argued that the FIFA "rule" is not really a rule, because FIFA doesn't make the decision for U.S. Soccer or La Liga. They're free to make their own decisions, notwithstanding potential adverse consequences, such as exclusion from international competition for players, teams, or federations that don't play ball.

The instant Second Circuit decision is limited. The court remanded the antitrust claim to proceed, recognizing that FIFA's rule is rule enough to represent the kind of concerted action in violation of antitrust law that Relevant alleges.

Earlier this week, I wrote about Cory Doctorow's enthusiasm, which I share, for the federal government's antitrust agenda—including the Justice Department investigation of Google. (I canceled my Google Nest Aware subscription upon the 25% rate hike. Google's not the only game in town. Yet.) U.S. Soccer's loss in the Second Circuit represents a judicial step in the same right direction.

I'm not an antitrust expert. But to my relatively lay eyes, the fact that the federal district court dismissed the case in 2021 on the faint theory that U.S. Soccer was not formally bound by FIFA's command demonstrates how appallingly far U.S. antitrust law has strayed from basic fair-market principles. Or maybe the court just didn't understand the governance system in world sport and its facility for subverting the laws of nations.

USWNT celebrates in times happier than this year's World Cup.
rachael.c.king via Flickr CC BY 2.0

The U.S. Soccer position in the litigation to me demonstrates furthermore a fundamental misunderstanding of what it will take to make football successful in America. American soccer advocates often wonder aloud why the sport seems to stall again and again, even after the men's World Cup in the United States in 1994 and the astonishing run of the U.S. Women's team in an unprecedented four World Cup titles.

To be sure, there are many, many reasons for the frustrating cycle of revving and stalling. But equally surely, one of those many reasons is the short-term greed of commercial actors that works a detriment to long-term development. 

I've written previously about this problem in the context of media rights. When NBC acquired the rights to English Premier League football, the broadcaster divvied up matches among its many media properties based on the popular appeal of each. NBC's strategy was to leverage interest in the league to sell separate subscriptions to multiple services: NBC, NBC Sports, (at one time, "NBC Gold,") Peacock, USA, Telemundo, Universo.

The network either didn't consider or doesn't care what that model looks like from the customer's perspective. Football in a place such as its home U.K. (at least before U.K. media companies such as Sky started merging with U.S. media giants and took sport away from the publicly minded BBC; that's another story) maintains a multi-generational foothold because supporters follow their teams.  

Divvying up the matches makes it impossible in the United States for a viewer to follow a team. Each week, one gets whatever match a selected service happens to carry, based on its level of market appeal.  If you subscribe to a middle-tier service and your team starts to lose, you might get more matches. If your team starts winning, and you start becoming more engaged, you find yourself suddenly deprived of matches.

That market behavior doesn't build a fan base. For American football or basketball, maybe there are enough viewers who will watch any game because they love the sport. But Americans don't yet love soccer that much. Sport-market development requires fostering two interrelated conditions at the same time: public enthusiasm for the sport, and public enthusiasm for a team. Neither can thrive without the other.

U.S. Soccer's refusal to permit La Liga to play a match on U.S. soil also is self-defeating, if for the converse strategic blindness. Both media rights usurpers and U.S. Soccer, focused on short-term profits, are dampening American enthusiasm by impeding U.S. viewers' access to the highest level of play in the world, in the Premier League and La Liga. While NBC's strategy deprives Americans of the opportunity to root for a team, the U.S. Soccer strategy deprives Americans of the opportunity to root for the sport.

Again, neither can thrive without the other.  U.S. Soccer is trying to protect Major League Soccer and the federation's underage and lower divisions. The federation reasons coldly that someone who buys a $500 La Liga ticket will skip five or ten $48 Tampa Bay Mutiny matches.

They're wrong. One of my U.S.-based family is a card-carrying member of the Toon Army, a dedicated supporter of Newcastle (U.K.) United FC. He traveled domestically to see Newcastle play an exhibition match in the United States this summer. Being a Newcastle supporter has made him a more, not less, enthusiastic supporter of his nearby D.C. United and the U.S. men's and women's national teams. With access to the matches of each, live and on TV, he's more likely to spend money on all of them.

Antitrust law is not a device to make commercial actors prioritize long-term interests over short. To the contrary, if NBC and U.S. Soccer put themselves out of business, that's a healthy outcome for the free market. But if antitrust inadvertently compels U.S. Soccer to up its game and compete for eyeballs by actually developing the sport, rather than constraining consumer choice, then that's an outcome I can get behind.

The case is Relevant Sports, LLC v. U.S. Soccer Federation, Inc. (2d Cir. Mar. 7, 2023). U.S. Circuit Judge Raymond J. Lohier, Jr.., wrote the opinion of the unanimous panel that also comprised Chief Judge Livingston and Judge Lynch. In 2017's "El Clásico Miami," Barcelona bettered Real Madrid 3-2.

Big Ag plays Goliath in film about GMO-seed litigation

A worthwhile movie you might have missed during the pandemic is Percy vs. Goliath (2020), starring Christopher Walken and Zach Braff, involving Canadian lawsuits over GMO seed contamination.

I caught up with the film last weekend. As the title suggests, it's a David vs. Goliath story about a workaday Canadian farmer, Percy Schmeiser (Walken) sued by agriculture giant Monsanto when Roundup-resistant canola strains turned up in the farmer's fields in Saskatchewan. Schmeiser countersued for libel and trespass.

The real-life case is Monsanto Canada Inc. v. Schmeiser (Can. 2004). The real-life Percy died in 2020 soon after the film was completed. There have been several documentaries about the case, besides this fictionalization.

Spoilers ahead.

Something I liked and had not expected in the film is the depiction of Percy's visit to India. The filmmakers do a good job conveying the fact that GMO seed drift and patent exclusivity is a worldwide problem. The film doesn't directly tackle the unknown risks of GMOs, both to human health and in global monoculture, but they're implicit in Percy's reasons for resisting GMO tech.

The film also doesn't tackle the separate problem of Roundup toxicity, which fueled mass tort litigation in the United States only later, in the 2010s. But the repeated mention of the product can't help but bring the issue to mind with the benefit of hindsight. (Certainly it brings the issue to my mind, remembering my summer work as a landscape laborer, Roundup streaming down my arms. Though that's nothing compared with soaked workers I saw on Central American fruit plantations in the 1990s.) Bayer acquired Monsanto in 2018 and agreed to settlements over Roundup in 2020. 

Percy mostly won in the end, in that Monsanto could not prove deliberate appropriation. But the court did find patent infringement and required Percy to surrender his seeds to Monsanto.

In the United States, the Supreme Court in 2013 ruled in favor of Monsanto in a seed case with different facts, Bowman v. Monsanto Co. An Indiana farmer had replanted seeds that Monsanto clients had sold to a grain elevator in violation of Monsanto's license, which prohibited downstream reuse. The later buyer infringed the patent, the court concluded.

In a U.S. case closer to Schmeiser but with a different procedural history, a broad farming coalition sought to nullify Monsanto patents to head off infringement claims they saw as an inevitable result of genetic drift. The court rejected the suit in Organic Seed Growers and Trade Association v. Monsanto Co. (Fed. Cir. 2013) for lack of controversy. Monsanto thereafter announced that it would not pursue infringement claims against non-client farmers for Roundup-resistant strains as long as they didn't use Roundup.

Informative for comparative law class, the film, Percy, includes a short courtroom scene toward the end in which Percy's solo lawyer Jackson Weaver (Braff) argues against the Big Ag sharks in the Canadian high court. Christina Ricci turned in an enjoyable supporting performance as environmental activist lawyer Rebecca Salcau. I recall that Ricci delightfully played scrappy attorney Liza Bump in the final season of Ally McBeal.

Weaver's and Salcau's resource limitations in facing off against Big Ag brought to mind A Civil Action (1998), and Percy overall is reminiscent of Dark Waters (2019) (on this blog). Percy's quiet tribulation is not the stuff of blockbusters, but it's surely worth the watch for anyone interested in the broad range of issues it raises in environmentalism, agriculture, food supply, civil litigation, product liability, intellectual property, and corporatocracy.

Though it was not a policy point in the film, I found compelling attorney Weaver's warning to Percy that losing the case would mean not only compensation on the merits to Monsanto, but liability to Monsanto for hundreds of thousands of dollars in fees for the very Big Ag attorneys who rendered the litigation playing field so unlevel as might, circularly, precipitate the loss.

Such is the rule for attorney fees in Canada and most of the world, and, alarmingly to me, more and more, by statute, in the United States. Civil rights advocates and the plaintiff bar herald attorney-fee shifting as vital to facilitate access to the courts for injured persons. But when the burn works both ways and a corporate Goliath prevails, the result should give us pause before wholeheartedly chucking out the pay-your-own-way rule of American common law. Writ small, this precisely is one of my objections to anti-SLAPP laws that place genuinely victimized individual plaintiffs at risk of having to pay outrageous fee awards to compensate corporate mass media defense attorneys.

I watched Percy vs. Goliath on the Roku Channel with ads. The film is available for less than $4 on many streaming platforms.

'Fisk' is the civil-practice lawyer you've been looking for

If you're looking to fill that Netflix queue as the writers' strike drags on, check out the Australian sitcom, Fisk.

When I put together a church message on ethics recently, I was looking to fill out a line about civil practice attorneys and coming up short. I wanted to make the point that when someone says "personal injury lawyer," we are quick to think of iconic unethical characters, and it's harder to conjure up the ethical ones. I didn't at first realize how much harder.

I ran the thought experiment on myself first. Even for me, a torts prof, it's hard, first, to filter out criminal lawyers. When I work the problem chronologically, the first character lawyer I remember adoring in my youth is Star Trek's Samuel T. Cogley (Elisha Cook), who defended Captain Kirk in a court-martial: criminal. The first civil selection that comes to mind is Boston Legal's Alan Shore (James Spader). But even he first appeared on The Practice, a criminal-law show.

Solidly on the civil side, unethical characters do come to mind quickly. For the message, I settled on My Cousin Vinny's Vinny Gambini (Joe Pesci), who was a civil-practice attorney out of his depth in a criminal-law storyline, and, to cross generations, Breaking Bad and Better Call Saul's Jimmy McGill/Saul Goodman (Bob Odenkirk). 

Then the ethical characters....  There are plenty in criminal, both prosecution and defense. Jack McCoy (Sam Waterston) is most often cited as admired when I survey 1L students. Ben Matlock (Andy Griffith) and Atticus Finch are classics.

Civil? Alas, so few people remember Alan Shore. I briefly considered Victor Sifuentes (Jimmy Smits). But on close inspection, nobody on L.A. Law holds up well as memorable and consistently ethically. There was Ally McBeal (Calista Flockhart), but she had a lot of balls (and dancing babies) in the air besides law practice. I interrogated the staff of The West Wing; none of the leads was a lawyer. I'm fond of Madam Secretary's Mike B. (Kevin Rahm), but he was as often as not a devil's advocate to test Elizabeth McCord's righteousness. Erin Brockvich? Real-life hero, but, to be technical, paralegal and consultant, not lawyer. Maybe Ralph Nader, though then it gets political.

John Calvin (1509-1564)
Public domain via Wikimedia Commons

For the church message, I settled on the real-life John Calvin, the 16th-century French theologian. He trained as a lawyer before he got caught up in the Reformation. It's a reach, I know.  But the bench is not deep, and Calvin was a stalwart for his faith.

So I come back around to Fisk, the title character of which is lawyer Helen Tudor-Fisk, created and played by comedian Kitty Flanagan. Tudor-Fisk was a high-powered corporate lawyer in Sydney until a bitter divorce and a workplace meltdown prompted her to upend her career and move to Melbourne. There she struggled to find a bed and a job, landing as a temporary fill-in for a suspended trusts-and-estates lawyer at a scrappy two-partner shop.

Fisk is not about law or legal ethics. The show, and its comedy, derive from Flanagan's delightfully dry-witted character as she navigates the ups and downs of her shattered life. The law practice is setting and background. But then—I don't think it's a big spoiler to say—her quiet diligence in her new job suddenly and gratifyingly comes to the fore in the finale of the six-episode season 1.

When I finished Fisk s1 last week, my own biases were laid bare. I had tried to think of what an ethical civil-practice attorney looks like. I pictured a renowned, tough-as-nails civil litigator, a silver-haired Matlock analog, dazzling jurors in the courtroom in "ripped from the headlines" cases.

Forget all that. Helen is the real deal.

I fell for Fisk.

Season 1 of Fisk is streaming now on Netflix. Season 2 ran on Australian Broadcasting last year; to my knowledge, it has not yet been licensed to stream in America.

UPDATE Oct. 22, 2023: Fisk s2 is now available to purchase in America from services including Amazon Prime.

Gladstone, Doctorow game out tech reg quagmire

Cory Doctorow
Houari B. via Flickr CC BY-NC-SA 2.0

On the Media's Brooke Gladstone talked to Cory Doctorow, author, internet activist, etc., on September 1 about, well, everything, and it's a breathtaking hour of must-listen radio.

The conversation wrapped up every issue I care about in technology and society today into a neat and intelligible bundle of the utter mess that it is: intellectual property, antitrust, privacy and data protection, politics and corruption, and the corporatocracy that's incinerating democracy. Doctorow is more optimistic than I that human civilization can yet be saved, so the program is not even a downer in the end.

I feel like I'm someone who knows a fair bit about this stuff, so I was humbled by how much I learned. I want to spill it all here, but I ought not be a spoiler. I'll share just a tidbit.

You know that thing when videos go viral and some average joe or jane inspires another generation of youth to plot a career as a social media sensation?

Yeah, not a thing.  At least not always an organic thing. Companies such as TikTok "twiddle" or "heat up"—terms of art—selected content to make it "viral," even while users think that they collectively are driving virality by demand.

Why? It's a "giant teddy bear" strategy, Doctorow explained. The carney at the fair lets an early player on one of those unwinnable-by-design games "win" the giant teddy bear, knowing that that customer will carry it around all night, inadvertently advertising the game to everyone else. The viral video maker thinks that a million people just loved that nutty dance and doesn't even realize that she or he is a tool, carrying the giant teddy bear around.

How do the companies get away with telling us one thing and doing something else? Because they change the rules whenever they like, Doctorow said. There are no rules about how they can change the rules.

Huzaifa abedeen via Wikimedia Commons CC BY-SA 4.0

And don't even get me started on the plethora of legal mechanisms that protect this monstrous Big Tech monopolization. Dare to start asking questions, and you'll find yourself on the business end of demand letters citing the DMCA, the Computer Fraud and Abuse Act, and patent and trademark law, just to get the ball rolling.

Yes, I realize that I am writing on a Google platform right now. What's a writer to do? I confess, I made a conscious decision at one point simply to surrender to Google. I have a Nest doorbell, a Pixel phone, and a Google Drive. But, you see, this is what Doctorow is talking about. It's next to impossible to get along in the virtual world today without surrendering.  Try buying diapers from Diapers.com instead of Amazon.

Doctorow is a big fan of Lina Khan and the example she's setting with the Federal Trade Commission's sudden scrutiny of the tech sector. Unfortunately, Doctorow said, it's easier to stop monopoly from happening than to dismantle it after it's taken hold. If you're my age, you'll remember how long AT&T reigned supreme before the feds came a-knockin'. Better late than never. I'll be interested to see if Khan-ology persists, or corporate power in Washington is now too big to break.

The podcast is How Big Tech Went to Sh*t, from WNYC's On the Media (Sept. 1, 2023).

Ark. Gov swings again at state FOIA

Arkansas Governor Sarah Huckabee Sanders has proposed a bill to undercut the highly regarded transparency regime of that state's Freedom of Information Act.

I was at the Arkansas Capitol when a veritable mob of citizen opposition stopped an anti-transparency reform bill in the spring. Try, try again must be the Governor's m.o.

My friend and colleague Professor Robert Steinbuch testified effectively against the spring reform bill. Here he is telling Conduit News Arkansas why the newest incarnation is no good either.

UPDATE, Sept. 16. My understanding is that the bill was gutted this week. A substantially narrowed enacted version applies only to secret information about the governor's security detail. The matter was discussed on Arkansas Week.

Ethics problems in law, education inform message on Christian ethics in biblical story of widow's offering

Last Sunday, it was my privilege to deliver a message on "Christian ethics," arising from Mark 12:41-44, at my local church in Barrington, R.I.

The service is posted on the church website. The message begins at about 31 minutes and runs about 24 minutes in duration.

I used two problems in conventional ethics as jumping off points: one, from legal ethics, a lawyer's unintentional acquisition of privileged records produced mistakenly in discovery; and two, from higher education, a student's unintended acquisition of an unfair academic advantage.

I used the term "doing ethics," which I borrow from, though it is not unique to, the work of Bob Steele (no relation), Jay Black, and Ralph Barney, with a powerful assist by Lou Hodges, in journalism ethics in the 1990s. I was privileged to have a front-row seat when they worked out the revised code of ethics for the Society of Professional Journalists at that time, especially the game-changing "Minimize Harm" principle.

In crafting the church message, I am indebted especially to mentors Eric D'Agostino and Scotty Neasbitt, who helped me navigate the research; and to my church leadership, including Dan Harrington, who writes thought provokingly for the ProJo; and, always, to my wife, an unflinching editor.

I note that, as always, this blog is personal and not affiliated with nor controlled by my employer. Sometimes content on this blog serves both to inform the public and to educate my students about the law. This posting, however, concerns religious belief and is exclusively personal in nature. No public resources nor on-the-job time was used in the work of the above-described message, nor in the production of this blog post. At the same time, of course, readers of any and every religious tradition and belief system are welcome on this page and at The Savory Tort, just as all students are welcome and encouraged in my classroom.

Unforeseeability precludes lessor liability for saloon shooting, but court fails to mention 'scope of liability'

Jernej Furman CC BY 2.0 via Flickr

A property owner could not be held liable for the fatal shooting of a musician at a lessee nightclub, the Massachusetts Supreme Judicial Court held in August.

The court applied conventional principles of foreseeability, but made no mention of recently adopted "scope of liability" analysis.

In the tragic conclusion of a personal feud, 23-year-old musician Drake Scott was shot multiple times and killed at the City Limits Saloon in Boston in February 2016. Gregory Wright was found guilty of first-degree murder in the incident in 2019 and, at age 39, sentenced to life without possibility of parole. (E.g., CBS News.)

In subsequent civil litigation, Scott's mother sued UTP Realty, LLC, alleging negligent failure to prevent the shooting with better security or lighting. UTP had acquired the property, and with it the saloon's lease, in November 2015. The plaintiff said that past incidents of violence at the saloon should have put UTP on notice of the risk. UTP's principal denied any actual knowledge of the history.

Massachusetts does not recognize the common law invitee-licensee distinction in premises liability, rather observing a unitary standard of reasonableness—though that probably would not have mattered here. The older common law framework might have been less forgiving of UTP, as property owners owe a duty of reasonable investigation to discover risks. Still, the duty is merely one of reasonableness; it does not follow necessarily that even a diligent UTP investigation would have discovered the risk that resulted in Scott's murder.

More importantly, the court determined that Scott's murder was not reasonably foreseeable. Accordingly, UTP simply owed no duty to Scott, and by extension in wrongful death, his mother.

"The word 'foreseeable' has been used to define both the limits of a duty of care and the limits of proximate cause," the court quoted its own precedent citing legal treatises. "As a practical matter, in deciding the foreseeability question, it seems not important whether one defines a duty as limited to guarding against reasonably foreseeable risks of harm or whether one defines the necessary causal connection between a breach of duty and some harm as one in which the harm was a reasonably foreseeable consequence of the breach of duty."

UTP's property ownership was brief and at arm's length; Wright's act was sudden and brutal. In causal terms, an intervening cause in the person of an intentional criminal actor, especially in case of a violent offense, more often than not becomes a superseding cause, absolving an earlier negligent actor, such as a property owner, of legal responsibility. Upon that rule, the conclusion here is noteworthy, but not surprising. The same goes for the court's recognition that duty and legal causation offer alternative expressions of reasonable foreseeability.

The court's reasoning surprising, however, in the context of the court's recognition, amid what appeared to be a heated disagreement, of the Third Restatement approach to duty and causation in 2021, in Doull v. Foster, which I wrote about at the time.  Acknowledging the overlap between duty and legal causation, the Third Restatement sought to relocate policy-driven analysis to a more straightforward new element, "scope of liability."

Moreover, the Third Restatement eschewed the superseding causation approach as a way of solving the problem of multiple actors. Once the scope-of-liability hurdle is overcome, the Third Restatement favored instead the recognition of a question of fact as to the apportionment of liability between multiple culpable actors, even if one was merely negligent and the other committed an intentional crime.

Neither scope of liability nor apportionment, nor the Third Restatement nor Doull, for that matter, earned a mention in the instant case: a sound conclusion, in my opinion, but evidence in support of my skepticism of Doull's eagerness to embrace reform,

On the one hand, if it ain't broke, don't fix it. On the other hand, litigators and trial judges fairly might wonder when to Doull and when not.

The case is Hill-Junious v. UTP Realty, LLC, No. SJC-13380 (Mass. Aug. 16, 2023). Justice Serge Georges, Jr., wrote the unanimous court opinion. Justice Georges had just been appointed in December 2020 and did not participate in Doull.