Mass. high court nominee brings tort law experience

Justice Wolohojian
Mass.gov

Massachusetts Governor Maura Healey Wednesday announced the nomination of Massachusetts Appeals Court Justice Gabrielle R. Wolohojian to the Supreme Judicial Court. 

UPDATE, Feb. 29: The justice was confirmed

Justice Wolohojian practiced with Big Law on "product liability cases, consumer class actions, false advertising claims, and other business and consumer transactions," according to her official bio. Governor Deval Patrick appointed her to the Appeals Court in 2008. She has a Ph.D. from Oxford and a J.D. from Columbia.

For Law360 (subscription), Julie Manganis reported as well:

Outside her legal work, Justice Wolohojian is ... a violinist who has performed with the Boston Civic Symphony for 35 years, and has served as president of the organization's board. She also serves as an overseer of a radio program called "From the Top," which features children performing classical music.

Justice Wolohojian has authored several Appeals Court opinions that I've featured here on The Savory Tort, all sound.

• Motel not liable for guest's suicide, court rules, despite family warning of risk, asking for room number (Sept. 2, 2022)
• Flawed instruction on 'reasonable alternative design' requires vacatur of tobacco defense judgment (July 20, 2022)
• Gruesome bone-in-burger case: verdict remanded for reconsideration of 'reptile,' 'golden rule' arguments (Nov. 7, 2019)
• Best friend of teen struck, killed by train may claim negligence without physical injury, appeals court rules (Sept. 16, 2019)

There's been a fuss in the media over Justice Wolohojian once having been in a long-term relationship with the Governor. The relationship ended before the Governor was elected, and she is now with another partner. Governor Healey said nothing about the issue in the nomination announcement. Law360 and other media have reported that the bar and executive officials are "shrug[ging] off" the personal relationship as immaterial. I concur; Justice Wolohojian's bona fides are unimpeachable.

UPDATE, Feb. 29: 

Yesterday the justice was confirmed 6-1 by the Governor's Council. For Law360, Julie Manganis reported of the dissenting vote:

The lone member who voted against Justice Wolohojian, District 8 Councilor Tara Jacobs, said she still has "some concerns around the recusal situation," but said she was also troubled by the selection process, calling it "insular."

From an inclusion standpoint, it just felt very exclusionary in that you couldn't have a more insider nominee," said Jacobs, "and so I have concerns about that in terms of how it might dissuade people from applying who are not inside a network like that."

Jacobs also said she had another concern after meeting with Justice Wolohojian.

"My perception is she has breathed rarefied air from the time she was young, [in] her education and through her career, and my perception from that is she intellectualizes the marginalized community's struggle in a way that feels very much like a bubble of privilege and detached from the struggle itself, so I do have a concern whether justice is best represented through that lens," Jacobs said.

Mass. High Court Nominee Who Dated Gov. Confirmed 6-1 (Feb. 28, 2024) (subscription).

State AGs back Mexico in suit against gun makers

Houston gun show in 2007 (M&R Glasgow CC BY 2.0 via Flickr)

In a pattern that has become familiar, the mass shooting in Uvalde causes us to check in on the various irons in the fire on gun liabilities.

The from-right-field lawsuit that most piqued my interest in the last year was that filed by the government of Mexico against American gun manufacturers over deaths in Mexico, Estados Unidos Mexicanos v. Smith & Wesson Brands, Inc. (D. Mass. filed Aug. 4, 2021). In the culmination of a 139-page complaint, Mexico articulates causes including negligence, product liability, and nuisance.

The lawsuit is presently in briefing on defendants' motion to dismiss.

Especially interesting are Mexico's counts seven and eight, arising respectively under the Connecticut Unfair Trade Practices Act and the famously broad Massachusetts consumer protection law, chapter 93A. It was under the Connecticut law, as a claim over marketing, that courts allowed the Sandy Hook plaintiffs to work around the personal injury liability bar of the Protection of Lawful Commerce in Arms Act of 2005 (PLCAA).

Though to be clear, Mexico's starting position is that the PLCAA doesn't apply anyway extraterritorially. In February, 14 state attorneys general, led by Massachusetts AG Maura Healey, briefed the district court on their agreement with that position (CNN), seeking to expose the gun-maker defendants to liability.

Gun maker Smith & Wesson, the named defendant in the case, was based in Springfield, Massachusetts, since 1852. In September 2021, Smith & Wesson announced plans to leave Massachusetts, amid pending legislation to limit the manufacture of assault weapons, for the friendlier venue of Tennessee (WCVB).

Court denies Exxon anti-SLAPP relief in Mass. climate claims; European court bemoans Russian SLAPP

AG Maura Healey

The Massachusetts anti-SLAPP statute does not work in defense of Attorney General enforcement actions, the Supreme Judicial Court decided in May in climate change litigation against Exxon Mobil Corp. Europe and the UK, meanwhile, are working out their approaches to anti-SLAPP.

I am in general anti anti-SLAPP, because the statutes are drawn too broadly. I recited my lamentations in April 2021. I support anti-SLAPP in principle when it works the way it was intended, but broadly drawn anti-SLAPP statutes create innumerable headaches and are used to protect Goliath from David as often as the other way around. Exxon's attempted reliance on the law fits the mold.

With the usual American MO, anti-SLAPP statutes try to slap an ill-fitting patchwork fix on a systemic problem, which is transaction costs in civil litigation, declaring the problem solved while in fact it festers, rotting social and political institutions from the inside out. Only when a bridge collapses does everybody momentarily notice, and then we move on.

The Massachusetts Supreme Judicial Court narrowly saved the bridge from collapse this time by rejecting Exxon Mobil's invocation of the commonwealth's typically broad anti-SLAPP statute. Exxon is defending itself against Attorney General Maura Healey. The AG accuses Exxon of deceptive statements that concealed what Big Oil knew about the climate risk of fossil fuel extraction, thus, responsibility for climate change. 

State and locality climate change lawsuits against Big Oil are proliferating in the United States and the world right now, as governments try to figure out where they will get the money to bolster infrastructure against rising sea levels and tempestuous weather events. In the context of "super torts," I wrote in November 2020 about the lawsuit against Big Oil by my home state of Rhode Island. By focusing on claims in state law, public plaintiffs such as my childhood hometown of Baltimore have managed to steer their claims into state court, evading the impact of a U.S. Supreme Court inclination to see the claims in federal court, as Big Oil defendants would prefer.

Accordingly, AG Healey is pursuing the commonwealth claim under Massachusetts's expansive unfair and deceptive practices act, chapter 93A. The powerful law affords double and treble damages and attorney fees in cases of willful and knowing violations, and it can be used as a private or public enforcement mechanism.

Exxon attempted to use the commonwealth's anti-SLAPP statute in its defense. The essence of Exxon's public statements about the environmental safety fossil fuels constituted participation in the public marketplace of ideas, Exxon asserts, so the AG's persecution is just the sort of action that anti-SLAPP should head off.

One limitation, thankfully, in the Massachusetts anti-SLAPP law is that it hinges on petition activity, not merely free speech. There is some margin around the word "petition," as the statute draws in public statements "reasonably likely to encourage consideration or review of an issue" by government. But the anti-SLAPP statute cannot be triggered simply because whatever civil wrong the defendant is accused of was accomplished by way of communication.

The AG objected to Exxon's invocation of anti-SLAPP on this distinction, because Big Oil made plenty of problematic statements to the public. I think she's right. But the court did not get that far. Rather, the court held in favor of the AG on her alternative argument, that the anti-SLAPP statute simply does not apply to public enforcement actions by the AG.

There is a questionable logic to Exxon's theory that petitioning must be protected against attack when the attacker is the petition-ee, government. A petitioner might be expected instead to make a First Amendment retaliation claim, if the attack theory holds up. Also, the anti-SLAPP statute, in a second provision, authorizes intervention by the AG on behalf of anti-SLAPP movants. So the legislature knew how to say "attorney general" when it wanted to, and the AG isn't mentioned anywhere else.

More importantly, the Supreme Judicial Court held, defense against a public enforcement action is not consistent with the legislative purpose of the anti-SLAPP statute: "The legislative history makes clear that the motivation for the anti-SLAPP statute was vexatious, private lawsuits, especially ones filed by developers to prevent local opposition to zoning approval." That's the paradigmatic case that gave birth to anti-SLAPP in 1988.

The court observed that its holding accords with one other jurisdiction that has considered the same problem. The Supreme Judicial Court of Maine declined to apply its anti-SLAPP statute in a municipal enforcement action for a zoning violation, despite the would-be movant's assertion of victimization.

Curious, though, that mass-media-Goliath defense against defamation and privacy lawsuits didn't get a mention in the court's main text. In a telling footnote, the court opined:

Although originally drafted with a particular purpose in mind—that is, the prevention of lawsuits used by developers to punish and dissuade those objecting to their projects in the permitting process—the anti-SLAPP statute's broadly drafted provisions, particularly its wide-ranging definition of petitioning activity, have led to a significant expansion of its application.... The ever-increasing complexity of the anti-SLAPP case law has also made resolution of these cases difficult and time consuming.... We recognize that this case law may require further reconsideration and simplification to ensure that the statutory purposes of the anti-SLAPP statute are accomplished and the orderly resolution of these cases is not disrupted.... We also note that other States have defined petitioning activity more narrowly and that bills have been filed in our Legislature to do the same....

I don't want to be an I-told-you-so, but.... 

Europe and the UK might ought take heed.

The UK invited public comment in a consultation in the spring as it ponders anti-SLAPP, and the European Commission is working out legislation now for the European Union.

In a March judgment, the European Court of Human Rights (ECtHR) recognized SLAPPs as a human rights problem. The court held that a regional Russian government had violated free speech rights with a civil defamation action against an online media outlet critical of officials. 

Of course, the Massachusetts and Maine cases should only aggravate the European court's worry, because it was a public authority that was the complainant in Russia. What if AG Healey were on a crusade against news outlets, using the deceptive practices law to persecute newspapers critical of the commonwealth government? (Is that how Exxon sees itself, victimized?) Would anti-SLAPP not be an apt defense?

The problem did not wholly escape the court's notice. The court struggled to distinguish an earlier Massachusetts case, Hanover, in which the applicability of anti-SLAPP in public enforcement simply had not been challenged when a town sued a union in a row over procurement. In a final footnote, the court wrote: "We note that the union in Hanover was not seeking to employ the anti-SLAPP statute to prevent local government enforcement of laws. As the issue was not raised in that case, and is not raised here, we need not decide whether any or all local government enforcement actions are beyond the scope of the anti-SLAPP statute."

So while the court lamented the burgeoning complexity of anti-SLAPP with one breath, it opened the door to more confusion with the next.

Hanover was characterized as an abuse-of-process suit, and therein lies a suggestion, I believe and have written before, of a better way to manage SLAPPs.

The Massachusetts case is Commonwealth v. Exxon Mobil, No. SJC-13211 (Mass. May 24, 2022). Justice Scott Kafker wrote the unanimous opinion. Track the case at the Climate Change Litigation Database.

The ECtHR case is OOO Memo v. Russia, No. 2840/10 (Eur. Ct. Hum. Rts. Mar. 15, 2022).

Judge delays decision again on Mass. right to repair, cites need to study SCOTUS climate change ruling

pix4free

Last week, in West Virginia v. Environmental Protection Agency, the U.S. Supreme Court dealt a major blow to federal regulators on the climate change front, and the case has stalled, again, release of the trial court decision over the right-to-repair law in Massachusetts.

First, a word on West Virginia, in which the Court struck down climate change-combative regulations for being born of a breadth not sufficiently specifically authorized by Congress. Others will comment more ably than I on the constitutional law of it all, but from where I sit, the case was correctly decided. Before you throw your rotten tomatoes at me for composting, at least absorb my two cents on the matter: 

We have too long been under the rule of administrative fiat in the United States, rather than democratic lawmaking, because our dysfunctional Congress long ago abdicated its role as a co-equal branch of government. Early in the 20th century, the Court unwisely allowed the non-delegation doctrine to slip away, and with it went the checks and balances of the constitutional separation of powers itself. So we're overdue for a correction.

You don't want to hear it from me, but the same problem pertains in the Roe/Dobbs debacle, where the administrative fiats on privacy have been coming from the Court rather than the administrative state, but certainly not from Congress: same difference. People, especially people ill schooled in the separation of powers—wherefore the sorry state of K12?—look to monolithic government for answers to their problems. They don't much care which public office provides the answer. So they fail to distinguish a Supreme Court decision—West Virginia or Dobbs—that says not our job from one that says simply not. Protestors picketing the Supreme Court building in recent weeks were on the wrong side of the street.

Abdication is a win-win for lawmakers, who can rake in the dough from corporations for the small price of doing nothing while blaming other branches of government for failing to offer a fix. Lawmakers sat on their hands on privacy and women's rights for decades in the wake of Griswold and Roe, content to let the Court struggle to map fine lines. Now they pantomime outrage and aspersion when Roe goes away and there is no statutory civil rights framework to replace it, nor even a framework to protect interstate travel rights, which is well within congressional authority.

Anyway, the angle on West Virginia that interests me is that on July 1, the U.S. District Judge Douglas P. Woodlock again delayed his decision in automakers' challenge to the Massachusetts right-to-repair initiative, saying that he would have to study the impact, if any, of West Virginia on his rationale. (E.g., Repair Driven News.)

Issuance of the decision in the case has been delayed time and again this calendar year, and the case has spurred occasional fireworks. Chris Villani for Law 360 wrote in February how "[a]n exasperated federal judge said ... he was close to a verdict in a suit challenging Massachusetts' revised 'right to repair' law, yet he pressed attorneys for a group of manufacturers about why they didn't tell him that new Subaru and Kia vehicles complied with rules they claimed are impossible to follow."

It was not clear, later, whether Subaru and Kia had actually complied, or just turned off the offending telematic features in new cars to be sold in Massachusetts. Turning off an otherwise functional mechanism does not, Massachusetts AG Maura Healey opined, and I agree, comply with the consumer data access law.

Though the omission that aggravated the judge was explainable, the incident is demonstrative nonetheless of automakers' obfuscating foot-dragging in their conduct of the case overall. They threw every kitchen-sink theory and procedural roadblock at the Massachusetts law, because every day of noncompliance is money in the bank, never mind the merits, nor the defense cost to taxpayers.

Automakers' problem is less with telematics regulation and more with being regulated state by state, rather than by federal standards. Federal regulation, rather than state regulation, has two powerful advantages for industry. First, federal regulations are universal, rather than 50+ in number, which vastly reduces compliance costs. More efficiency in compliance costs is good for consumers, too. So that's fair.

Second, federal regulations come from a grinding rule-making process that is almost irretrievably contaminated by the mostly lawful if deeply lamentable corruption of the industry-state complex. So manufacturers can lobby their way free of meaningful burdens that would benefit consumers and protect social and economic rights. Less fair.

It is not clear why Judge Woodlock thinks that West Virginia might affect his ruling. I might be able to say if I followed the Massachusetts case more closely. Absent a study, my guess is that the issue has to do with preemption. One of the automakers' kitchen-sink challenges alleged that Massachusetts could not regulate telematics because federal regulation of the auto industry impliedly preempts state right-to-repair regulation. If the judge thought that the vitality of that theory depended on the breadth of the federal regulations, and the permissible breadth of federal regulations, when ambiguous, is necessarily narrowed by West Virginia, then maybe it's less likely that the federal regulations can be said impliedly to preclude state regulation.

I'm now piling supposition upon supposition, but if I'm right, the likelihood is that the trial court was going to rule in favor of industry, and it's possible but unlikely that West Virginia would change that. I put money on industry on this one back in the winter, too, in part because I supposed that the judge's exasperation was evoked by a seeming deception on the part of the soon-to-be-announced prevailing side, and in part because I'm a pessimist. Or, I like to think, a realist.

My will for public policy, though, if not my bet, is on the side of AG Healey. Previously, I've written favorably about right to repair as a bulwark of consumer protection, and I support the Massachusetts initiative.

The Massachusetts case is Alliance for Automotive Innovation v. Healey (D. Mass. filed Nov. 20, 2020).

Facebook shields records from Mass. AG inquiry

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

AG Healey
(Zgreenblatt CC BY-SA 3.0)

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

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

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

Mass. high court supports AG in climate change investigation of Exxon Mobil

I'm not a civ pro cognoscente, but a ruling of the Massachusetts high court on long-arm jurisdiction today caught my attention because it relates to the effort to hold Big Oil accountable for climate change.  The case is Exxon Mobil Corp. v. Attorney General, No. SJC-12376 (Mass. Apr. 13, 2018).

Mass. A.G. Maura Healey
(Edahlpr CC BY-SA 4.0)

Since 2016, Massachusetts Attorney General Maura Healey has been investigating Exxon Mobil Corp. under the state consumer protection law--the same Mass. Gen. L. chapter 93A that powerfully enhances conventional civil actions in tort in the commonwealth.  The AG tracks the investigation blow by blow online.  The AG opened the investigation after the 2015 revelation that Exxon might have known about the risk of climate change as early as the 1970s, as reported by Scientific American.

As part of the investigation, "the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon's knowledge of and activities related to climate change."  Exxon resisted the CID on personal jurisdiction grounds.  Exxon simultaneously sought declaratory relief in federal court in Texas (No. 4:16-CV-469).  A year ago the case was transferred to New York (No. 1:17-cv-02301), and two weeks ago, Healy prevailed (S.D.N.Y. Mar. 29, 2018).  Exxon is incorporated in New Jersey and headquartered in Texas.

The analysis for specific personal jurisdiction in an investigation is not the same as in a lawsuit, the court explained.  Exxon denied "suit-related" activity in Massachusetts.  But "the investigatory context requires that we broaden our analysis," the court wrote, to consider the scope of investigation regardless of whether any wrongdoing has yet been uncovered.

Exxon franchise in Durham, N.C.
(Ildar Sagdejev CC BY-SA 4.0)

"The Attorney General's investigation concerns climate change caused by manmade greenhouse gas emissions--a distinctly modern threat that grows more serious with time, and the effects of which are already being felt in Massachusetts."  More than 300 Exxon and Mobil franchises operate in Massachusetts.  Considering the corporation's close supervision of franchisees, the fuel stations "represent[] Exxon's 'purposeful and successful solicitation of business from residents of the Commonwealth.'"  The franchise agreements moreover require Exxon sign-off of advertising, so the court rejected Exxon's efforts to distance the corporation from consumer sales.

The Exxon investigation in Massachusetts unfolds against a backdrop of burgeoning legal attacks across the country.  The much-watched Juliana v. United States (Children's Trust) persists in the District of Oregon upon a favorable ruling in the Ninth Circuit in March (884 F.3d 830).  If state attorneys general make any headway under consumer protection law, I hope that any settlement serves more clearly to remedy climate change than the tobacco master settlement agreement has served to combat smoking-related health effects (see, e.g., Jones & Silvestri, 2010).

In re United States, 884 F.3d 830 (9th Cir. 2018)

884 F.3d 830

In re United States, 884 F.3d 830 (9th Cir. 2018)