Plaintiff drops privacy suit that stretched to claim against UMass Medical in nationwide data breach

UMass Chan Medical School
Mass. Office of Travel & Tourism via Flickr CC BY-ND 2.0

Until six days ago, the University of Massachusetts Chan Medical School was defending a privacy suit over a data breach, though the plaintiff liability theories looked thin.

There doesn't seem to be any dispute over the fact of the data breach. UMass Chan was just one of hundreds of organizations nationwide implicated in a breach affecting tens of millions. According to electronic security firm Emsisoft (which has a commercial interest in higher numbers), the breach affected more than 2,700 organizations and the data of more than 94 millions persons (last updated Jan. 18, 2024).

The vulnerability for all of these organizations was a file transfer platform called MOVEit, a product of publicly traded, Burlington, Mass.-based Progress Software Corp. UMass Chan used MOVEit to transfer personal information to other state agencies and programs. Hackers obtained and published the data of more than 134,000 persons, including recipients of state supplemental income and elder services.

According to state officials, WBUR reported, the "exposed data varies by person, but in each case includes the person's name and at least one other piece of information like date of birth, mailing address, protected health information like diagnosis and treatment details, Social Security number, and financial account information." The commonwealth notified affected persons and offered free credit monitoring and identity theft protection.

The complaint filed in federal court in September 2023 sought class action certification. The named plaintiff blamed UMass Chan for weak security and delayed notification resulting in a fraudulent attempt to use her debit card. Wednesday last week, the plaintiff voluntarily dismissed without prejudice, meaning the case might not yet be over.

The articulated causes of action, though, were a stretch. That's not to say that the putative plaintiffs suffered no injury. The problem rather is that the law in most states, including Massachusetts, and at the federal level still fails to define data privacy wrongs in a manner on par with the law of Europe and most of the rest of the world.

There was no statutory cause of action in the UMass Chan complaint. The diversity complaint alleged counts of negligence, breach of contract, and unjust enrichment.

Negligence has not been a productive vein for privacy plaintiffs, who lack the usually prerequisite physical injury. Massachusetts cracks open the door more than most other states to negligence actions based on lesser injury claims, such as emotional distress or economic loss. But it's not a wide opening.

Privacy actions in state law meanwhile are problematic because American common law has not yet well established the nature of the plaintiff's loss according to conventional understandings of injury. Indeed, federal courts disagree over when a statutory state privacy action supplies the "injury-in-fact" standing required by the federal Constitution. 

The named plaintiff in the UMass Chan case hastened to emphasize her contractual relationship with UMass Chan as a service provider, in an effort to anchor the negligence claim within a strong relationship of duty to get through the Massachusetts doorway. She described the identity risk of the debit-card incident to establish economic loss at least.

It's not clear that the pleading could have pushed over the hurdles to negligence recovery. I have advocated for the evolution of common law tort to close the gap in recognition of privacy violations in U.S. law, similarly to how UK courts developed the "misuse of private information" tort in common law to complement transposition of EU data protection. The Massachusetts Supreme Judicial Court could do that; certification would be required here in a federal case. But the trend in American data privacy law rather has been for the courts to wait on legislators to move the ball forward.

The other liability theories were a stretch, too. In contract, the plaintiff alleged herself a third-party beneficiary of data sharing agreements between UMass Chan and its state partners. Third parties can claim rights in a contract, but the proof is stringent. Contract law also raises a damages problem. The plaintiff here was not seeking specific performance, and it's not clear that any recovery in contract law would exceed the remediation the commonwealth already offered.

The equitable claim of unjust enrichment theorized essentially that UMass Chan benefited financially by cheaping out on security. That's creative, but a plaintiff in equity usually wants back something she lost to the defendant. A differential in the cost of contract services is speculative, and it's an attenuated causal chain to allege detriment to UMass Chan clients.

Privacy plaintiffs in the United States have seen some success using laws that predate contemporary data breach. But those theories won't work here. Massachusetts once had a leading data regulatory system for its requirements of secure data management. But the law is now well worn and has not kept up with other states, California being the model. Critically, the Massachusetts regs don't provide for private enforcement.

Some plaintiffs have found success with the dated (1986) Computer Fraud and Abuse Act. But a federal CFAA claim would be leveled properly against the hacker. The alleged culpability of UMass Chan is more accident than abuse.

American privacy plaintiffs flailing to state wrongs in litigation unfortunately is common and will continue as long as the United States lacks a comprehensive approach to data protection. I wrote 10 years ago already that American expectations in data privacy had outpaced legal entitlements.

The pivotal factor in whether MOVEit breach victims find any relief is likely to be the state where they and their defendants are located. Perhaps the case will push commonwealth legislators at last to act on a bill such as the proposed Massachusetts Information Privacy and Security Act (see, e.g., Mass. Tech. Leadership Council).

The case is Suarez v. The University of Massachusetts Chan Medical School (D. Mass. filed Sept. 18, 2023).

Western myopia marginalizes war in Sudan, Ecuador

My prayers, especially over the recent holidays, have admittedly felt cliché, if not comical, being dominated by desire for "world peace."

In case Ricky Gervais is right and prayer works like a democratic election (jk; it doesn't), I've focused on the conflicts of the world that my otherwise-trusted David Muir & co., reporting on Israel and Ukraine, seem quick to forget: Sudan and Ecuador.

I've written previously about Sudan (Apr. 2023, Sept. 2023). The New York Times in December reported a death toll in excess of 10,000 and displaced persons rounding 6 million. My friend from Khartoum remains safe abroad, but it looks increasingly like there will be nothing to come home to. I just read in Christianity Today that hospitals have been targeted and destroyed by the warring generals in the unscrupulous scorched-earth struggle.

I'm the last to rush to judgment with the r-word, but is there another explanation for seeming western indifference to this ongoing tragedy?

And then there's Ecuador, which in recent weeks also has entered a chaotic kind of civil war. It's a country dear to me for personal history there, but also of professional interest for fascinating and groundbreaking developments in constitutional law in recent years.

The Daniel Noboa Administration declared war on organized crime after drug lords were broken out of prison, almost certainly with the help of corrupt insiders. As Noboa cracked down, the country was besieged by retaliatory violence, especially in the Guayaquil Canton.

Efforts to remedy the desperate situation are closely related to the social and economic prosperity Ecuador experienced in recent decades. Ecotourism, again especially in Guayaquil, an access point for the Galápagos, had been an engine of economic and social development, precipitating recognition of rights of indigenous people and of nature with which the nation's courts were experimenting.

When I was last in Guayaquil about a dozen years ago, it was safe enough to walk around, for me, at least, by day. Security and the economy were on the upswing. On January 9, 2024, in contrast, the world was horrified to see armed terrorists, some of them teenagers, holding guns to the heads of journalists in a Guayaquil news station broadcasting live. My friend Ugo Stornaiolo Silva, an Ecuadorean lawyer living and working in Poland, reports that his family in Ecuador is safe, but the hatches are battened down. Domestic travel is out of the question.

Elected only in November 2023, Noboa promised to get a grip on drug trafficking and restore the rule of law. In a sense, then, the present violence is a promising sign of a much needed reckoning. Yet it remains to be seen whether the cause is winnable. Observers predict a bloody road ahead, or maybe worse if Noboa wavers in his resolve.

Ecuador's problem is part of the wider narrative of drug trafficking and human migration through Colombia and Central America, driven by the wealth, demand, and relative opportunities of the United States. America's backyard is declining into a mega-narco-state, while neither of our only choices of political party has demonstrated the will or ability to tackle the problem even in its domestic dimension.

Say what you will about China, the PRC recognizes that stability in its neighborhood is essential to the country's own national security. The means to the ends of course are problematic, exemplified by Nauru's recent change of alignment from Taiwan to China. But that matter again demonstrates the ascendancy of Chinese foreign policy over America's apparent appetite for isolationism.

Pray for world peace, as a spiritual matter. Know that it will only happen with American commitment, as a political matter.

*     *     *

As often happens in the course of the school year, my personal blogging in the fall semester had to yield to professional workload. I have been logging matters I'm eager to share and will endeavor to catch up in the coming months.

Court rejects 'super tort' theory in suit alleging animal cruelty, though concurrence mentions rights of nature

Kodiak bear at Olympic Game Farm, a private zoo in Washington.
Analise Zocher via Flickr CC BY 2.0

The Animal Legal Defense Fund tried but failed in August to convince the Washington Supreme Court to treat animal cruelty as an actionable "super tort."

The nonprofit Animal Legal Defense Fund (ALDF) sued a private zoo in Washington, alleging animal cruelty under state public nuisance law. In mid-August, the Washington Supreme Court rejected the theory as beyond the scope of the statute.

It is a clever theory. Like environmentalists, animal protection organizations face high hurdles using tort law to advance their work. Animal cruelty laws often are not vigorously enforced by public authorities and provide scant mechanisms for private enforcement. Nonprofits usually have no standing to sue without a statutory authorization.

State and local governments lately have been pushing nuisance law as a potential accountability mechanism for all kinds of social ills. Nuisance is a leading theory in lawsuits against Big Oil for the impact of climate change. And some governments found success with nuisance to leverage settlements with opioid sellers.

But this "super tort," as termed by the defense bar and tort reformers, is problematic for policy reasons. Overusing the tort system to regulate business exceeds the bounds of corrective justice, threatening the free market and the organic social contract. The courts are not equipped to make policy, and it's not their function in the constitutional design of separated powers. Converting, or perverting, social problems into civil litigation thus bypasses the political branches of government, enervating democratic accountability and threatening unintended consequences.

In 2020, I wrote about this issue in the context of the Rhode Island suit (my home state) against Big Oil. I spoke about the problem to a Jagiellonian University audience via Zoom earlier that same year.

Some states, such as Washington, allow the enforcement of public nuisance law with "private attorney general," or "citizen-suit," provisions. The potential for public authorities to expand the scope of public nuisance is thus multiplied by willing and creative advocacy organizations.

ALDF theorized that animal cruelty, which the nonprofit alleged in suing the private zoo in Washington, constituted a public nuisance. That's a reach, but not irrational.

Pollution, or environmental damage, is the classic example of a public nuisance.  A die-off of fish in a public waterway might adversely affect the interests of waterside property owners, but there is no incursion on any one property such as creates a privately enforceable nuisance. Public authorities are obliged to respond to the problem as a matter of policymaking—thus, environmental protection law and regulation. Add citizen suits to the public nuisance mix, and environmentalists acquire enforcement power.

ALDF's wish to enforce animal cruelty law is a short leap through analogy in natural resource protection. Moreover, nuisance law in some states has a "per se" concept, like negligence law, by which the standard of right and wrong can be informed by statute. So ALDF bolstered its public nuisance claim by pointing to anti-cruelty statutes and wildlife conservation laws as public policy properly pronounced by the legislature.

ALDF further analogized to a peculiar but exigent strain of public nuisance law tied to morality.  In my 2020 talk, I made scant reference to this theory, in the interest of succinctness, but probably I should have given it a more respectful nod.

Historically, public nuisance law was used to shut down the likes of brothels and saloons.  Sometimes red-light businesses externalize costs to surrounding property owners that are real but difficult to quantify—consider the long-running feud between a Chicago-area strip club and next-door nuns, by which the convent alleged injury by "secondary effects" (as known in First Amendment law), such as crime and litter.  But many times, too, public nuisance laws have been invoked on the mere basis of moral objection.

In that sense, runaway public nuisance is a problem of the law's own creation.  Common law courts opened the door to nuisance in the moral abstract, untethering the concept from physical property.  ALDF just stepped through the door.  Society's intolerance of animal cruelty is a moral statement no less than condemnation of human trafficking.  As an animal advocate myself—full disclosure, I'm a founding faculty adviser of the student ALDF chapter and a past ALDF supporter—I find this theory appealing.

To be objective, though, the difficulty arises in that not everyone, least of all the legal system, embraces ALDF and my view of unequivocal morality in the area of animal cruelty.  The law permits even purely recreational hunts to kill exotic animals.  For all her worthy work, even Temple Grandin has not succeeded in making humane methods universal in food production.  Despite advancements in the recognition of human grief as a compensable loss in tort claims for injury to pets, the law continues to regard animals, for the most part, as mere chattel.

Such was the tone of the Washington Supreme Court's response to the ALDF claim.  ALDF could not articulate a conventional nuisance theory, in the way of interference with peace and enjoyment of land, and the court refused to engage with ALDF's theory as a matter of policy indicated by the animal cruelty or wildlife conservation laws.

"While ALDF cites to some cases that identify wildlife as a public resource," the court opined, "it cites no cases or statutes indicating that the public has a right to use that resource as it sees fit or has any individual, personal property rights in wildlife."

ALDF pointed to a seeming precedent to no avail. ALDF prevailed in a claim against a Wisconsin private zoo in federal court last year, winning a permanent injunction on a citizen-suit nuisance theory. However, the defendant had given up the fight partway through and allowed a default judgment to be entered. The Washington Supreme Court observed that the federal trial court in the case made no ultimate finding of fact that the private zoo was a nuisance.

In concurrence, Chief Justice Steven C. González left the door open, just a crack, and made a shout out, remarkably, to the theory of the rights of nature (RoN), if not by name.  Though agreeing with the holding, the chief opined (selective citations omitted; links added):

[T]he world has changed much since the days when King Henry II, Kukulkan, and the Great Khan were young. Now, the private use of land has profound potential to harm our ecosystem and the various species we share it with. It may well be time to heed Justice Douglas's call to consider whether those places and things threatened with environmental catastrophe should have standing in court to sue for their own injuries. See Sierra Club v. Morton ... (U.S. 1972) (Douglas, J., dissenting) (citing Christopher D. Stone, Should Trees Have Standing?—Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972)). Thus, I am wary of fully endorsing the majority’s sweeping conclusion that "[w]here the statutory framework and case law do not support a claim, none exists."

I'm all for ALDF's objectives, just like I'm gravely concerned about the impact of the opioid crisis. And I value the chief's assessment of common law evolution, an important capacity of American tort law that often is marginalized or forgotten in contemporary practice.  I have hastened to recognize the potential of common law evolution to reflect, not make, social policy in areas such as privacy and data protection.

But I worry, too, about misuse of the courts to make social policy; what the public will to do so tells us about possibly catastrophic dysfunction in the political branches; and what that means for the fabric of our democracy.

The case is Animal Legal Defense Fund v. Olympic Game Farm, Inc., No. 101264-1 (Wash. Aug. 17, 2023) (ALDF commentary).  Associate Chief Justice Charles W. Johnson wrote the opinion of the court.

Libro estudia poder de corte constitucional ecuatoriana

El abogado Ugo Stornaiolo Silva ha publicado un libro, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Amazon). (English below.)

Stornaiolo es un abogado ecuatoriano y estudiante de LL.M. Nos conocimos cuando él era estudiante mío en el Programa de Derecho Americano de la Universidad Católica de América en la Universidad Jagellónica de Cracovia, Polonia. Visitó generosamente mi clase de Derecho Comparado en UMass, a través de Zoom en la primavera, para hablar sobre derecho constitucional comparado, especialmente a la luz de notables decisiones recientes de los tribunales ecuatorianos con respecto a los derechos indígenas y los derechos de la naturaleza.

Aquí está el resumen del libro nuevo.

Por lo dispuesto en la Constitución actualmente vigente, la Corte Constitucional ecuatoriana es una de las instituciones más importantes del diseño constitucional ecuatoriano, y sus extensos poderes, sin contrapesos o fiscalización, podrían sugerir que es un ente soberano dentro de nuestro país frente a una institucionalidad de poderes separados que no puede ejercer sus funciones fuera de su control.

Sin embargo, la soberanía de la Corte Constitucional no es un fenómeno expreso, por lo que demostrar su condición soberana podría significar un cambio de paradigma en el entendimiento crítico de nuestro propio ordenamiento político y jurídico.

Stornaiolo escribe para el websitio, The Libertarian Catholic (El Católico Libertario). Para conocer una muestra en inglés de su trabajo sobre el constitucionalismo ecuatoriano, consulte su artículo de 2021,  "Originalism and Textualism Are Not Enough Against Constitutional Lawfare" ("El Originalismo y el Textualismo No Son Suficientes Contra la Guerra Jurídica Constitucional").

---

Attorney Ugo Stornaiolo Silva has published a book, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Judges as Sovereigns: A Legal-Political Exploration of the Supreme Power of the Ecuadorian Constitutional Court) (Amazon).

Stornaiolo is an Ecuadorean lawyer and LL.M. student. We met when he was a student in my class in the American Law Program of The Catholic University of America at Jagiellonian University in Kraków, Poland. He generously visited my Comparative Law class at UMass, via Zoom in the spring, to talk about comparative constitutional law, especially in light of recent noteworthy decisions by Ecuadorian courts regarding indigenous rights and the rights of nature.

Here is the précis of the book (my translation).

Based on constitutional law as presently in force, the Ecuadorian Constitutional Court is one of the most important institutions in the Ecuadorian constitutional design, and its extensive powers, without checks or oversight, could suggest that it is a sovereign entity within our country, in opposition to the separation-of-powers framework, by which one cannot exercise power beyond the scope of authority.

However, the sovereignty of the Constitutional Court is not an explicit phenomenon, so demonstrating its sovereign condition could mean a paradigm shift in the critical understanding of our own political and juridical order.

Stornaiolo writes for the website, The Libertarian Catholic. For a taste in English of his work on Ecuadorian constitutionalism, check out his 2021, paper,   "Originalism and Textualism Are Not Enough Against Constitutional Lawfare."

German court protects political satire in 'fake interview'

Katrin Göring-Eckardt
Heinrich-Böll-Stiftung CC BY-SA 2.0

In August 2022, a German court rejected a politician's claim that a satiric "fake interview" violated her rights.

Attorney Roman Brtka reported on the case for Bird & Bird Munich, and I rely on his report at Media Writes. The case is compelling because the fact scenario, and usually the same outcome, arises periodically in American law from the likes of an Onion "exclusive interview."

The plaintiff in the German case was Katrin Göring-Eckardt of the German Green Party. The defendant was Tichys Einblick (TE), a wide-ranging opinion magazine sometimes identified with right-wing populism. The content at issue was a wholly fictitious interview that mocked Göring-Eckardt's liberal position on pronouns. TE flagged the piece expressly headlined, "Achtung Satire" ("Attention Satire").

Brtka provided a helpful explanation of pronouns in the German language and how they play out in hot-button gender identity politics. The interview employed "extremely exaggerated ... gender-neutral language" to mock Göring-Eckardt.

The plaintiff invoked the German constitutional "right of personality," an outgrowth of broad European privacy law and close cousin of data protection. In this context, the right comes perhaps closest in American tort law to false light invasion of privacy. A better analogy would be a marriage of the right of personal autonomy, as known to medical decision-making in American constitutional law, to the interest of anti-disparagement, as known to trademark law.

The Hamburg regional court concluded, according to Brtka, "that the unbiased and reasonable audience could ... recognise, from the hyperbolic use of gender forms and the exaggerated demands mentioned in the article, that these were not actual statements made by the plaintiff. The mere fact that individual readers might come to a different understanding did not change this." Without any asserted truth, there could be no misrepresentation of the plaintiff's person, so no infringement of the plaintiff's personality right.

Brtka commented that "[i]t remains to be seen" whether the courts would protect satire that is not so plainly labeled, such that the satiric nature must be inferred from the content itself.

TE also reported the outcome of the case.

Unlike TE, The Onion, "America's Finest News Source," is satire through and through, even as it has been sold between media companies with other properties. The Onion's non-satirical supplement The AV Club was always branded distinctively and spun off in 2012. Taken in context, it's very difficult to mistake Onion content as true, though people sometimes infamously do. 

Like the German regional court, American courts, heeding the First Amendment, cut a wide berth for satire, likewise employing objective reasonableness to examine both content and context. Without an assertion susceptible of being proved true or false, there can be no winning claim of false light or defamation.

For satirists, closely related legal problems can arise from real interviews under pretenses the interviewee alleges were false: think Rudy Giuliani in Borat Subsequent Moviefilm. The Borat films and media enterprises such as The Daily Show use releases to help protect themselves. Even a well worded release is not ironclad against a claim that acquiescence was procured through fraud. But whether upon the release or lack of falsity, claims are almost invariably dismissed. The practical problem for plaintiffs is that what the camera captures is true, and the judgment that frames it is merely opinion.

Evidencing American courts' deference to hyperbole, Fox News prevailed in a 2020 lawsuit in part upon the theory that reasonable viewers did not regard the recently newsworthy Tucker Carlson as a source of facts. In 2022, the Sixth Circuit denied recovery to a man who satirized the Facebook page of his local police, and then was charged with and acquitted of a crime. Police were entitled to qualified immunity from the man's civil rights claim, the court concluded. The U.S. Supreme Court denied review amid a set of engaging amicus briefs, including one from The Onion.

Since the E. Jean Carroll verdict against former President Donald Trump, there has been a flurry of commentary suggesting that defamation law is the way out of the misinformation quagmire. It's really not, for a bunch of reasons that are beyond the scope of this post. Relevant here, the understandable thirst for accountability in the misinformation age might push against the traditionally wide berth of protection for satire. Let's hope the courts resist that push, because satire itself is a vital accountability mechanism.

Expert explains Ecuadorean constitutional law

Ugo Stornaiolo Silva
(via Mises Institute)

An Ecuadorean lawyer and LL.M. candidate, Ugo Stornaiolo Silva thinks deeply about constitutional law and social and economic organization. Today he'll speak to my Comparative Law class.

The Constitutional Court of Ecuador has been garnering headlines in recent years with landmark rulings in areas such as indigenous rights, animal rights, and the rights of nature. I wrote here last summer about the successful habeas petition of a woolly monkey. That case followed a decision in which the court compelled the government to hear from indigenous people in the Amazon before authorizing extraction projects (before decision).

Last year Stornaiolo wrote a piece for The Libertarian Catholic (other work there) comparing the U.S. Supreme Court with the Constitutional Court of Ecuador. While the Ecuadorean court often appears to the world as a monolithic bastion of progressivism, the court in fact has an ideological divide that is analogous to, though different from, the conservative-liberal divide of the U.S. Supreme Court, Stornaiolo explained. He wrote,

[f]or instance, the Ecuadorian Constitutional Court textualist faction would be composed by President Salgado, and judges Nuques, Herrería Bonnet, Corral, with both Salgado and Corral filling in for Clarence Thomas position as the often-dissenting originalist in the Court, and Herrería Bonnet as more moderate, and its so-called "garantist" and "progressive" faction would consist of judges Grijalva, Ávila, Lozada, Salazar and Andrade, with Ávila and  Salazar filling in for Sonia Sotomayor’s position as the most activist judges, considering they have drafted some of the most controversial majority opinions of the Court in cases such that ruled on the constitutionality of cannabis recreational use, same-sex marriage, abortion and the criminality of teenage consensual sexual relations.

Stornaiolo's other work has examined comparative constitutional interpretation and the public-private divide. In the United States, Stornaiolo has been an academy fellow for the Heritage Foundation and a research fellow for the libertarian Mises Institute. I was fortunate to have Stornaiolo as a student in my American Tort Law class in fall 2022 at Jagiellonian University in Kraków, Poland, where he is studying for his LL.M. in a joint program with The Catholic University of America in Washington, D.C.

On Monday, March 20, Stornaiolo will join my Comparative Law class via Zoom to talk about the Constitutional Court of Ecuador and comparative constitutionalism in Latin America more broadly.

With fascinating developments in constitutional law afoot in Latin America and the Ecuador Constitutional Court driving the trends, Stornaiolo is a lawyer to watch.

Habeas petition for woolly monkey was valid, Ecuadorian court rules, recognizing right of nature

A silvery woolly monkey at the Louisville Zoo
(Ltshears CC BY-SA 3.0 via Wikimedia Commons)

The Constitutional Court of Ecuador entered a landmark ruling on the rights of nature in January when it recognized the legitimacy of a habeas petition on behalf of a woolly monkey named Estrellita.

Estrellita was removed from the wild illegally almost two decades ago. Fortunately she came to be in the care of a librarian and effectively became part of the family for 18 years. But when Estrellita suffered a respiratory emergency, and the family sought medical treatment, authorities seized her for commitment to a zoo. Fearful of the profound distress that must have afflicted Estrellita, besides her ailment, the family filed a habeas petition. Estrellita died, but the petition persisted in the courts.

I wrote in December about the Ecuadorian court's landmark ruling on indigenous rights. As I wrote then, the decision implicitly recognized the right of nature in tandem with indigenous peoples' conservation of natural resources. The Estrellita case makes explicit the judicial recognition of Ecuador's constitutional right of nature, independent of human rights.

Elizabeth Gamillo wrote about the case for Smithsonian in April. Her story linked to a certified translation of the final judgment in the case, "Estrellita Monkey," No. 253-20-JH/22 (Rights of Nature and animals as subjects of rights) (Ct. Const. Ecuador Jan. 27, 2022).

Gamillo added: "Other countries, like Canada and New Zealand as well as several cities in the United States, have treaties or local laws that give wild animals some protection. In November 2021, the United Kingdom recognized several invertebrates, including lobsters, octopuses and crabs, as sentient beings. However, these rights have not been applied at the constitutional level, Science Alert reports."

'Civil death,' denial of tort claims, violates prisoners' right of access to courts, R.I. high court holds

N.C. State Archives public domain photo via Wikimedia Commons

The Rhode Island Supreme Court in March struck down the state "civil death" statute, which disallowed civil claims by inmates imprisoned for life.

The statute at issue states:

Every person imprisoned in the adult correctional institutions for life shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction. However, the bond of matrimony shall not be dissolved, nor shall the rights to property or other rights of the husband or wife of the imprisoned person be terminated or impaired, except on the entry of a lawfully obtained decree for divorce.

Alleging negligent maintenance, one plaintiff-inmate complained "that his arm was severely burned and permanently disfigured when he made contact with an exposed hot water pipe at the [prison]." Another alleged negligence when he slipped and fell after being compelled "to walk across an icy walkway at the [prison]." The trial court rejected both claims as barred by the "civil death" statute.

I was shocked to read of this case in my home state's Providence Journal; I never had heard of a "civil death" statute. The R.I. ACLU provided some background:

Rhode Island was apparently the only state in the country still enforcing a law like this, whose origins date back to ancient English common law. As far back as 1976, a court struck down Missouri's civil death statute, noting that "the concept of civil death has been condemned by virtually every court and commentator to study it over the last thirty years." The court observed that such laws had been characterized even before then as "archaic," "outmoded," "an outdated and inscrutable common law precept," and "a medieval fiction in a modern world." In 1937, when 18 states still had civil death laws, a law review article called the concept "outworn."

Applying the 1843 state constitution (article 1, section 5), a four-justice majority of the Rhode Island Supreme Court had little trouble reaching the conclusion that I thought was obvious, that the law violates the fundamental due process right of access to the courts.

Justice Lynch Prata
(via Ballotpedia)

Employing strict scrutiny, the court acknowledged that "civil death"

functions as an additional sanction imposed upon some of the state's worst criminals and furthers the goals of punishment and deterrence. This Court has recognized that "[t]he loss of civil status as a form of punishment is a principle that dates back to ancient societies." .... However, it is our opinion that this particular additional punishment is not a compelling reason to override the right of access to the courts that is textually guaranteed by the Rhode Island Constitution.

Justice Goldberg
(via Ballotpedia)

Even were the statute supported by a compelling state interest, it is not narrowly drawn, the court further opined, as it fails to distinguish between prisoners based on their eligibility for parole.

Justice Maureen McKenna Goldberg dissented. "Prison inmates, especially life prisoners, are not entitled to the same degree of constitutional rights as are members of society at large," she wrote, "and that includes the right to bring tort claims against the warden for a slip and fall or a burned hand." She would have narrowed the question to the plaintiffs' negligence claims and upheld the statute.

"In my more than two decades of service on this Court, I cannot recall ever having declared a statute to be unconstitutional," Justice Goldberg opined. "[T]his should not be the first case with such a drastic result in light of our longstanding jurisprudence."

The case is Zab v. R.I. Department of Corrections, No. 2019-459-Appeal (R.I. Mar. 2, 2022). Justice Erin Lynch Prata wrote the majority opinion.

A former state senator Judge Prata was nominated to the court by Governor Gina Raimondo in December 2020, just three months before she left office to become the U.S. Secretary of Commerce. Justice Lynch Prata is 2000 graduate of Catholic Law, for which I periodically teach as a visitor. Judge Goldberg is the senior-most justice on the court, having served since her appointment in 1997.

Should mass media audiences have right to know whether content is fact or opinion?

Political protestor in 2012
(photo by Gabriel Saldaña CC BY-SA 2.0 via Flickr)

To protect the civil rights of the audience, radio and television providers in Mexico may be compelled to distinguish between fact and opinion, a minister of the First Chamber of the Supreme Court of Justice ruled in November 2021.

The decision by Minister Juan Luis González Alcántara Carrancá struck down a federal telecommunication reform that repealed the fact-opinion distinction, holding that the repeal violated the right of the audience to know the nature of the content it is receiving. (More at Observacom en español.)

It remains to be seen whether the minister's opinion will hold up, or how enforcement might work going forward. But the opinion points to some intriguing considerations as all liberal democracies debate their responses to the problems of misinformation and scarce objectivity in news media.

Approaching misinformation as a problem of audience rights rather than speaker rights is a compelling spin.

The approach is not unknown in U.S. telecommunication regulation, which is justified in part with reference to public ownership of the airwaves. As television transitioned from broadcast to cable, the public right to receive gained ground alongside the property rationale. Though these days, the whole enterprise of balkanized media regulation is constitutionally questionable.

Detaching the audience right from the medium to ground a general right to receive accurate information from mass media, apart from speaker rights, is, anyway, a bold further step. The debate in American free speech law over anonymity and compelled source disclosure in campaign finance, though, comes to mind.

The idea that fact and opinion can be distinguished, or should be distinguished, is an additionally intriguing idea.

It would be easy to conclude that the distinction is too hazardous to contemplate, chilling the practice of journalism for fear of perceived slant, invading the province of ethics, and threatening the vital tradition of the editorial page. The fuzzy identity of advocacy documentary puts the problem in focus, whether the subject to be tested is Hillary: The Movie (2008), the film at the heart of Citizens United, or the latest Michael Moore project.

At the same time, the "fact-opinion dichotomy" is an extant feature of our defamation law. We have developed tools to make the distinction, and we expose assertions of fact to greater potential liability than we do opinions.

Indeed, the Mexican fact-opinion distinction is not grounded in an effort to combat misinformation; rather, the notion grows out of advertising regulation, where the concept is familiar to American jurisprudence, too. Mexican regulators sought to protect consumers against surreptitious advertising strategies such as product placements and paid endorsements. The U.S. First Amendment similarly tolerates heightened government regulation of commercial speech in the interest of consumer protection.

In commentary on the Mexican case, Daniel Villanueva-Plasencia at Baker Mackenzie wonders at the implications if the fact-opinion regulatory distinction were to escape the confines of telecommunication and find its way to the internet, where social media influencers, among other content creators, would come within its purview.

I do not mean to suggest that compulsory fact-opinion labeling is constitutionally unproblematic, or even viable, in U.S. First Amendment law. I do suggest that an approach to the misinformation problem beginning with audience rights and compelled disclosure, that is, with more information rather than less, is a good starting point for discussion.

The case is Centro Litigio Estratégico para la Defensa de los Derechos Humanos v. Presidente de la República, No. 1031/2019 (Sup. Ct. J. Nación 2021) (excerpt of opinion).

Communication policy figures as factor in U.S.-India business development after pandemic

From the Summit newsletter, with me at lower left

As promised, on February 24, I joined a panel of "INBUSH ERA World Summit 2022," an international business and policy conference organized by Amity University, India, through its flagship campus at Noida, Uttar Pradesh, near Delhi.

I delivered remarks arising from my paper, "Communication Policy as a Factor in Post-Pandemic U.S.-India Business Development," available on SSRN. Here is the abstract.

For better and worse, we live in the age of the transnational corporation. That corporate landscape is dominated by a very few actors, namely the five-trillion-U.S.-dollar oligopoly of Amazon, Apple, Meta/Facebook, Alphabet/Google, and Microsoft. That market dominance has proven to be counterproductive to countless priorities, including social and economic development, civil rights, and environmental sustainability. And the problem of Big Tech’s market dominance was dramatically exacerbated by the pandemic. Now national governments are trying to figure out what to do. Today, in the context of a program about how the United States and India can move forward together to facilitate transnational business development after the pandemic, I offer observations in two dimensions. One dimension is the jurisdictional relationship of the United States and India. The other dimension is the nature of the legal challenges in the global post-pandemic business environment. These challenges range from the broad level of the competitive marketplace to the narrow level of the information ecosystem, and, en route, pass through the problem of communication regulation, which is my own area of research.

The hosts generously presented me with an "Amity Global Academic Excellence Award."

Judge Jackson Media Law, Torts Tour: From Big Meat 'COOL' to 'A Love of Food' and 'Everlasting Life'

[A revised version of this post is available to download as a paper on SSRN.]

The Hon. KBJ (Wikicago CC BY-SA 4.0)

Profiles of U.S. Circuit Judge Ketanji Brown Jackson have proliferated since her announcement as a leading contender for the U.S. Supreme Court seat vacated by Justice Breyer, and President Biden announced her nomination yesterday.

Judge Jackson has practiced in both criminal and civil environments, and in public and private sectors.  She focused in different practice roles on criminal law and appellate litigation, and she served on the federal bench at the trial and appellate levels.  So much of her work, and that which has garnered the most attention, for example in the excellent SCOTUSblog profile by Amy Howe, interests me as a citizen in general more than as an academic and media-law-and-torts aficionado.

Nevertheless, I compiled here cases of interest to me, which I found whilst poking around in her trial-court record on the U.S. District Court for the District of Columbia (D.D.C.).  You might not see these discussed elsewhere, but they might be of interest to comparative-bent, media-law types like me, if that's even a thing.  In my ordinary-joe capacity, I am not in step with Judge Jackson's inclinations in some other areas of law.  But any Supreme Court Justice, just like any political candidate, is going to be a mixed bag, especially in a compulsorily two-party system.

In the cases below, a decidedly unscientific sample, I like some of what I see, especially skeptical diligence in access-to-information cases, sound reasoning in intellectual property law, careful application of preemption doctrine in medical-product liability, and a couple of thought-provoking First Amendment entanglements.  I see a mixed record on venue for transnational cases, something I've been worrying about lately, but the outcomes are defensible as consistent with lousy U.S. law.

---

Main topics:
● Civil procedure/statute of limitations: WMATA v. Ark Union Sta., Inc. (2017)
● Copyright/music royalties: Alliance of Artists & Recording Cos. v. Gen. Motors Co. (2018)
● Defamation, false light/actual malice: Zimmerman v. Al Jazeera Am., LLC (2017)
● First Amendment/child pornography: United States v. Hillie (2018)
● First Amendment/commercial speech, compelled speech: Am. Meat Inst. v. U.S. Dept. Agric. (2013)
● FOIA/national security, law enforcement: Elec. Privacy Info. Ctr. v. U.S. Dept. Justice (2017)
● FOIA/Vaughn index, trade secrets, deliberative process: McKinley v. FDIC (2017)
● FOIA/deliberative process/personal privacy: Conservation Force v. Jewell (2014)
● FSIA/CCFA, forum non conveniens: Azima v. RAK Invest. Auth. (2018)
● FSIA/torture: Azadeh v. Iran (2018)
● Insurance/settlement: Blackstone v. Brink (2014)
● Product liability/causation, preemption, learned intermediary: Kubicki v. Medtronic (2018)
● Trademark/infringement: Yah Kai World Wide Enter. v. Napper (2016)
● Wrongful death/sovereign immunity, contributory negligence: Whiteru v. WMATA (2017)
● Wrongful death, product liability/forum non conveniens: In re Air Crash ... So. Indian Ocean (2018)

Quirky pro se claims:
● Defamation/litigation privilege/statute of limitations: Ray v. Olender (2013)
● Copyright/infringement: Buchanan v. Sony Music Ent. (2020)
● Copyright/pleading: Butler v. Cal. St. Disbursement Unit (2013)
● Copyright/subject-matter jurisdiction: Miller v. Library of Congress (2018)
● FTCA/FOIA, civil rights: Cofield v. United States (2014)
● Legal profession/sovereign immunity, absolute immunity: Smith v. Scalia (2014)

And the case with the best name:
● A Love of Food I v. Maoz Vegetarian USA (2014)

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WMATA (D.C. Metro) (Max Pixel CC0)

Civil procedure/statute of limitations.  WMATA v. Ark Union Sta., Inc., 269 F. Supp. 3d 196 (D.D.C. 2017).  The transit authority of the District of Columbia alleged that negligent maintenance by the Union Station America Restaurant, defendants' enterprise, resulted in a burst sewer pipe that severely damaged the Metro Red Line in 2011.  Judge Jackson opened the opinion cleverly, with what could almost be a dad joke: "This is a case about whose interests the [WMATA] serves when it spends money to repair damaged transit infrastructure in the Metrorail system—a proverbial third rail of this region's politics."  (My emphasis.  How could I not?)

D.C. has a generous five-year statute of limitations, but even that time had run.  Determining that the corporate-body WMATA remained a creature of government for relevant purposes, evidenced by its operational subsidies—cf. WMATA, infra, in negligence/sovereign immunity—Judge Jackson applied "the common law nullum tempus doctrine, which dates back to the thirteenth century," to exempt WMATA, as sovereign, from the statute of limitations.  The court explained: "Although the nullum tempus doctrine originated as a 'prerogative of the Crown[,]' the doctrine's 'survival in the United States has been generally accounted for and justified on grounds of policy rather than upon any inherited notions of the personal privilege of the king.' .... Specifically, 'the source of its continuing vitality ... is to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers'" (citations omitted).

Pixabay

Copyright/music royalties.  Alliance of Artists & Recording Cos. v. Gen. Motors Co., 306 F. Supp. 3d 422 (D.D.C. 2018).  Judge Jackson dismissed a trade-group-plaintiff claim against automakers that their in-car CD hard drives created digital music recordings (DMRs) within the meaning of the federal statute, the Audio Home Recording Act of 1992 (AHRA), entitling copyright holders to royalties.  The AHRA was intended by Congress to protect the music industry against the alarming ease of creating high-fidelity copies of digital music by requiring manufacturers, importers, and distributors to employ copy-control technology.  Though having earlier allowed the claim to proceed against other technical challenges under the AHRA, the court decided, with the benefit of the first phase of discovery, that the defendant automakers' devices were not digital audio recording devices within the meaning of the statute.  In a methodical analysis, Judge Jackson explained that the content of the hard drives was excluded from the statutory definition of a DMR because of the coordinate presence of play software and other data.  The court rejected industry's theory that the appropriate frame of analysis was a particular partition of the drive, where music code might be located more readily.  The D.C. Circuit affirmed, 947 F.3d 849 (2020).

Zimmerman
(All Pro Reels CC BY-SA 2.0)

Defamation, false light/actual malice.  Zimmerman v. Al Jazeera Am., LLC, 246 F. Supp. 3d 257 (D.D.C. 2017).  Two professional baseball players, both called Ryan (a Zimmerman and a Howard), sued Al Jazeera America over a documentary, The Dark Side: Secrets of the Sports Dopers (2015), in which an interviewee linked the pair to performance-enhancing drugs.  The plaintiffs were clearly public figures, so actual malice was at issue.  In a thorough explication of the making of the film followed by a straightforward recitation of the media torts, Judge Jackson narrowed the plaintiffs' claims to allegations stated in the film, excluding liability for promotional content.  The court found it plausible, upon "contextual clues," that a reasonable viewer could attribute the interviewee's statements to the filmmakers: "The film weaves [the source's] statements into a broader narrative about doping in sports that the producers themselves have purportedly confirmed through their own investigation."  Judge Jackson then explicated the actual malice standard and its amped up, St. Amant, iteration of recklessness.  Critically, the plaintiffs alleged that the source had recanted his claims about the Ryans during a subsequent, yet pre-publication, interview, giving Al Jazeera serious cause to doubt the source's veracity, if not actual knowledge of falsity.

Naturally, this case might be of interest to Court watchers, given the present hubbub over the Sullivan actual malice standard.  I'm no fan, and I'll have more to say about that in the future.  Zimmerman hardly depicts a Judge Jackson ready to pitch in with Justices Thomas and Gorsuch to upend the status quo.  But she understands the standard and at least might be amenable to a semantically sincere construction of "reckless disregard."

First Amendment/child pornography.  United States v. Hillie, 289 F. Supp. 3d 188 (D.D.C. 2018).  Criminal cases are not usually my jam, but this one had a First Amendment angle.  Judge Jackson allowed conviction of a defendant for sexual exploitation of a minor and possession of images of a minor engaging in sexually explicit conduct.  On the facts as explicated by the court, that sure seems like it was the defendant's intent: "carefully placing and positioning the camera in hidden locations in J.A.A.'s bedroom and bathroom" and "succeed[ing] in capturing several extended images of J.A.A.'s exposed genitals."  Missing, though, was the express "lasciviousness" required by federal statutes, a fatal flaw for the prosecution, the D.C. Circuit ruled.  14 F.4th 677 (2021).  The defendant relied on statutes, not the First Amendment, but the D.C. Circuit referenced First Amendment case law extensively to support its interpretation of what Congress required.  Despite the substantial latitude to which the government is entitled to prosecute child pornography, beyond the legal constraints of outlawing obscenity as to adults, the appellate court concluded that Judge Jackson erred in permitting the jury to infer the defendant's lascivious objective.  One might expect that social conservatives would side with Judge Jackson on this case. 

Labeled French beef
(by Yuka for Open Food Facts CC BY-SA 3.0)

First Amendment/commercial speech, compelled speech.  Am. Meat Inst. v. U.S. Dept. Agric., 968 F. Supp. 2d 38 (D.D.C. 2013).  This must have been a grilling initiation to the federal bench for Judge Jackson.  A meat industry trade association challenged "country of origin labeling" regulations (truly, "the COOL Rule") promulgated by the Department of Agriculture, on, as one might expect from Big Meat, any legal theory that might stick to the cast iron: namely, the statutory authority of the Agricultural Marketing Act, promulgation under the Administrative Procedure Act, and the First Amendment.  The first two make my eyes glaze over; it's the First Amendment that grabbed me.  Meat and the First Amendment are, of course, long-time frenemies, going back to the heyday of The Jungle, and on through the secret grocery workers of journalism ethics fame.  Then there was the whole pink slime era, and animal-welfare activists came trespassing through to take pictures.  Oh how we laughed until we cried.

Anyway, in this case, Judge Jackson capably explicated the niche case law of compelled commercial speech and charted the fine if squiggly line separating free speech and business regulation.  The risk of deception was more than merely speculative here, she opined, and consumers were demonstrably confused.  Industry mistakenly claimed a burden on its pocketbook, rather than its speech rights, Judge Jackson admonished.  The COOL Rule was reasonable and hardly burdensome for its expectation of truthful and uncontroversial disclosure.  Preliminary injunction was denied.

Big Meat was not easily deterred; the case went for a rodeo ride the following year.  The D.C. Circuit affirmed, 746 F.3d 1065 (Mar. 28, 2014), vacated upon granting rehearing en banc, No. 13-5281 (Apr. 4, 2014), and then reinstated affirmance (July 29, 2014).

U.S. Defense Department image (C)

FOIA/national security, law enforcement.  Elec. Privacy Info. Ctr. v. U.S. DOJ, 296 F. Supp. 3d 109 (2017).  Privacy advocate EPIC sued DOJ under the federal Freedom of Information Act (FOIA) to learn more about past wiretap spying under the post-9/11 Foreign Intelligence Surveillance Act.  EPIC was especially keen to see how the government had justified surveillance requests it set before the famously amenable Foreign Intelligence Surveillance Court (FISC).  Namely, EPIC sought: "(1) Westlaw printouts that were attached to a certain brief that the government submitted to the [FISC], and (2) portions of certain reports that DOJ issued to Congress, consisting of summaries of FISC legal opinions, descriptions of the scope of the FISC's jurisdiction, and discussions of process improvements."  DOJ produced a Vaughn index.  Ex parte and in camera, Judge Jackson reviewed the materials and adjudged them properly withheld under exemptions 1 (national security as to the congressional reports), and 3 and 7(E) (national security statutes and law enforcement techniques, as to everything else), with some nitpicks as to redactions and notations.  I'm sure EPIC did not care for the result, but the transparency problem seems to be a statutory one.  Judge Jackson did a pretty deep dive on the docs.

FOIA/Vaughn index, trade secrets, deliberative process.  McKinley v. FDIC, 268 F. Supp. 3d 234 (D.D.C. 2017), then No. 1:15-cv-1764 (D.D.C. Sept. 30, 2018).  Judicial Watch, per experienced FOIA-requester attorney Michael Bekesha, represented a plaintiff against the FDIC.  In the reported opinion in 2017, the court compelled the FDIC to produce a Vaughn index. The Judicial Watch plaintiff was investigating FDIC placement of Citibank into receivership in 2008 and 2009.  The FDIC sought to protect 12 documents as trade secrets and eight documents as deliberative process.  The court faulted the FDIC for failing to support either claim of exemption with any contextual explanation, including the nature of its decision-making authority on the latter claim.

I note that Judge Jackson's reasoning on the trade-secret analysis might have been undermined subsequently by the Supreme Court's industry-deferential ruling on exemption 4 in Food Marketing Inst. v. Argus Leader Media (U.S. 2019).  (I signed on to an amicus on the losing side in FMI.)  In an earlier FOIA case, Government Accountability Project v. FDA, 206 F. Supp. 3d 420 (D.D.C. 2016), Judge Jackson similarly relied on pre-FMI doctrine to reject, as unduly conclusory, FDA resistance, at the behest of a pharma trade association, to production of records on antimicrobial medications.

Vaughn index in hand on remand, plaintiff persisted in challenging the adequacy of the FDIC search and "whether withheld information 'has already been made public through an official and documented disclosure.'"  Judge Jackson rejected both claims in a short opinion in 2018.  She found the first merely speculative.  As to the second, the plaintiff "argued that the FDIC's withholdings were improper because the requested information was 'officially' acknowledged by Former FDIC Chairman Sheila Bair in the book Bull by the Horns—a book that Bair published after leaving office."  Judge Jackson held that "that contention, too, must be rejected. A book or other material that a former government official publishes in her personal capacity does not qualify as an 'official acknowledgment' of the information contained therein for the purpose of FOIA."

Bison trophy at Beaty Biodiversity Museum, Vancouver, B.C.
(by Nikkimaria CC BY-SA 3.0)

FOIA/deliberative process, personal privacy.  Conservation Force v. Jewell, 66 F. Supp. 3d 46 (D.D.C. 2014).   A nonprofit foundation that promotes big-game hunting sued U.S. Fish and Wildlife, in the Department of Interior, under the FOIA to obtain records related to denials of permits that would allow the import into the United States of hunting trophies of Canadian bison.  For the record, I'm fine with denying those permits, and I could be persuaded to block importation of the hunters, too.  Nevertheless, transparency....  

Judge Jackson authored a workmanlike exploration of various exemption theories asserted by Interior: accepting attorney-client privilege (exemption 5) and personal-information exemption (6); rejecting deliberative-process exemption, crime-fraud exception to attorney-client privilege, and work product privilege (all exemption 5).  She cited House reports to bolster her interpretations of what exemptions 5 and 6 require.  In a pattern that became familiar, or maybe just speaks to agency neglect, she faulted Interior for a conclusory ("woefully short") Vaughn index that failed to support exemption.  As to exemption 6, which has been aggressively enlarged by federal courts in furtherance of the privacy rage, Judge Jackson accepted Interior's redaction of employee personal information as more or less immaterial to the sought-after accountability.  The D.C. Circuit affirmed summarily in No. 15-5131 (Dec. 4, 2015).

FSIA/CFAA; forum non conveniens.  Azima v. RAK Invest. Auth., 305 F. Supp. 3d 149 (D.D.C. 2018).  Judge Jackson was reversed in this one, 926 F.3d 870 (D.C. Cir. 2019), but I prefer her analysis.  Under the Computer Fraud and Abuse Act (CFAA) and for common law conversion and unfair competition, plaintiff, a Kansas City, Mo., businessman, sued a business partner, a public investment authority (RAKIA) of the United Arab Emirates (UAE, specifically the Emirate of Ras Al Khaimah), after their business relationship soured, alleging that RAKIA "commissioned the repeated surreptitious hacking of his personal and business laptops ... and then published disparaging material that was illicitly gleaned from Azima's computers...."  RAKIA sought dismissal under the Foreign Sovereign Immunities Act (FSIA) on grounds of sovereign immunity, under a contractual forum selection clause, and, relatedly, under the common law venue doctrine of forum non conveniens.

Judge Jackson rejected all three grounds.  The plaintiff plausibly portrayed RAKIA, an investor rather than governing entity, as a commercial actor and alleged tortfeasor, bringing into play the FSIA commercial and tort exceptions.  As alleged, the hacking would have inserted malware into the plaintiff's computer systems, even if the insertion occurred abroad, so the locus of alleged tortious injury was Kansas City, bolstering the FSIA analysis.  The forum selection clause did not pertain, Judge Jackson reasoned, because it was articulated in the parties' contract for a prior commercial venture; the contract hardly covered subsequent hacking.

As to venue, Judge Jackson faulted RAKIA for failing to meet its "heavy burden" to show that Azima would get a fair shake in RAKIA's preferred venue of London, where RAKIA might have hoped for a more favorable outcome on immunity.  I like that analysis—but cf. infra, re wrongful death/forum non conveniens.  My comparative law class just read Professor Vivian Curran's masterful recent work on foreign law in U.S. courts, in which she convincingly demonstrated U.S. federal judges' penchant to over-employ forum non conveniens and thus shirk their responsibility to adjudicate.  

Perhaps proving Prof. Curran's thesis, the D.C. Circuit disagreed, holding that the forum selection clause burdened the plaintiff with having to show why London would not work as an appropriate venue, else face dismissal for forum non conveniens.  I would be remiss not to mention also: Prof. Curran further faulted the courts for lazy reliance on partisan evidence (my words) when foreign law is concerned, and both Judge Jackson and the D.C. Circuit declared a lack of any responsibility to investigate themselves the adequacy of London as a forum.

FSIA/torture.  Azadeh v. Iran, 318 F. Supp. 3d 90 (D.D.C. 2018).  Plaintiff was an inmate of an Iranian jail and alleged torture and intentional torts at the hands of the republic.  A U.S. court ruling in such a matter is principally symbolic.  Iran will not respond; a plaintiff might hope to recover against a U.S. government claim on frozen assets.  Accordingly, in this case, a magistrate judge recommended entering default judgment in favor of the plaintiff.  I have here omitted cases in which Judge Jackson adopted in toto a magistrate's report; in this case, she did not.

Relying on a manual of the U.S. district courts, the plaintiff had effected service on the state of Iran erroneously, under the wrong order of process under the FSIA.  Judge Jackson wrote: "Judges are sometimes called upon to set aside heart-wrenching and terrible facts about a claimant's treatment at the hands of a defendant and enforce seemingly draconian, technical mandates of law. This is an especially difficult duty when the machinery of the judicial system itself appears to have played a role in the claimant's mistaken view of the applicable legal requirements. The somber circumstances of the instant case present one such scenario...."  The court put the default judgment on hold and gave the plaintiff a second crack at proper service.  Judge Jackson subsequently entered default judgment against Iran, in the sum of $36,411,244, in No. 1:16-cv-1467 (D.D.C. Sept. 5, 2018).  Reproduced therein, the magistrate's report detailed the plaintiff's ordeal.

Insurance/settlement.  Blackstone v. Brink, 63 F. Supp. 3d 68 (D.D.C. 2014) (D.C. law).  In an insurance dispute arising from the alleged wrongful death of a pedestrian, plaintiffs and their attorney apparently changed position on whether to settle with defendant-driver's insurer, State Farm, for the defendant's $100,000 policy limit.  After a telephone conversation, State Farm sent a check and a release form to the plaintiffs' attorney.  The check crossed in the mail with a letter from the attorney rejecting the offer.  Applying D.C. law, Judge Jackson determined that the parties had reached an enforceable agreement on the telephone, evidenced by the specificity of the attorney's instructions on how and where to send the check.  The court wrote of the parties' competing narratives: "On this record, it is far more plausible that [plaintiff counsel] accepted [State Farm's] offer on behalf of his clients [plaintiffs], intended that it be final and binding, and later had misgivings about his earlier decision to accept. Unfortunately for Plaintiffs, courts have long held that such buyer's remorse does not vitiate a demonstrated initial intent to be bound by the settlement agreement" (original emphasis).

A Medtronic product (Alan Levine CC BY 2.0)

Product liability/causation, preemption, learned intermediary.  Kubicki v. Medtronic, 293 F. Supp. 3d 129 (D.D.C. 2018) (D.C. law).  Parents of a diabetic consumer who suffered traumatic brain injury as a result of low blood-sugar levels sued the manufacturers of an insulin pump, alleging various theories of product liability.  Judge Jackson threw out some claims, against one manufacturer and upon one theory, as time barred, because plaintiffs had added them to the complaint too late for the District's three-year statute of limitations.  Judge Jackson navigated the tricky shoals of preemption doctrine to find some but not all liability theories expressly preempted, and the remainder not impliedly preempted, by FDA medical-device approval.  A sliver of remaining plaintiff theories survived summary judgment for presenting triable questions of fact on causation and on the learned intermediary doctrine relative to alleged failure to warn.

Trademark/infringement.  Yah Kai World Wide Enter. v. Napper, 195 F. Supp. 3d 287 (D.D.C. 2016).  The defendant ran the Everlasting Life Restaurant & Lounge as an enterprise of the African Hebrew Israelite community, "who claim to be descendants of biblical Israelites and who follow a strict vegan diet," until their relationship soured.  The plaintiff-community sued when the defendant persisted in doing business as "Everlasting Life," which a community leader had registered as a service mark (pictured).  Trial did not go well for the defense; Judge Jackson wrote that the defendant "displayed some signs of dissembling, such as the evasive nature of his answers with respect to the existence of a purportedly independent and unincorporated food business that he claimed to have created by himself in his home garage prior to the Community's formation of its restaurant businesses."  The court found likelihood of confusion and, accordingly, infringement.  If only defendant had partnered with Big Meat to serve litigious hungry hunters returning from Canada.

Wrongful death/sovereign immunity, contributory negligence.  Whiteru v. WMATA, 258 F. Supp. 3d 175 (2017).  This time the WMATA, the D.C. transit authority, was a negligent defendant rather than plaintiff—cf. WMATA, supra, in civil procedure/statute of limitations—and this time, the authority was ruled not sovereign for purposes of immunity.  In what was essentially a slip-and-fall, the plaintiff-decedent's estate and parents blamed the WMATA for not discovering the decedent—a lawyer, by the way—injured on a train platform, in time to provide life-saving medical treatment.  A creature of state compact and D.C. statute, the WMATA enjoys an immunity analogous to that of federal defendants under the Federal Tort Claims Act (FTCA).  Borrowing the FTCA rule of immunity for discretionary governmental functions, which often presents a frame-of-reference problem in its granular application, Judge Jackson rejected the WMATA theory that officials' conduct was discretionary.  Rather, properly, I think, the court accepted the plaintiff's framing of the case as alleging unreasonable comportment with the WMATA standard operating procedures for platform inspection.

At that time in 2017, factual questions in the case precluded summary judgment.  However, in 2020, Judge Jackson awarded the WMATA summary judgment upon the plaintiff's contributory negligence.  480 F. Supp. 3d 185.  The District is not a comparative fault jurisdiction.  The plaintiff's heavy intoxication when he fell was undisputed, and, Judge Jackson opined, video evidence plainly showed that the plaintiff fell because he over-relied on a low wall for support.  Just this month, the D.C. Circuit reversed and remanded,  ___ F.4th ___ (Feb. 11, 2022), holding that under D.C. law for common-carrier liability, contributory negligence is not the complete defense that it usually is in negligence in the District.

Suggested search area for MH370 debris
(Andrew Heneen CC BY 4.0)

Wrongful death, product liability/forum non conveniens.  In re Air Crash Over the Southern Indian Ocean, 352 F. Supp. 3d 19 (D.D.C. 2018) (multi-district litigation).  This case marks a tragic disappointment.  Judge Jackson dismissed for improper venue, forum non conveniens, the claims of families of passengers of missing airliner MH370 against defendants including Malaysia Airlines and Boeing.  The claims arose under the Montreal Convention on international air carriage, common law wrongful death, and product liability.  The thrust of the problem is that what happened to MH370, including the final resting place of the fuselage and an understanding of what went wrong, remains a mystery, and even less was known in 2018.  My money is on pilot hijacking, by the way; read more in the definitive account to date by the incomparable William Langewiesche for The Atlantic. 

Judge Jackson opined:

All told, the Montreal Convention cases in this MDL involve only six U.S. citizens with a direct connection to the Flight MH370 tragedy, as either plaintiffs or decedents. Among the hundreds of passengers on that flight, only three were citizens of the United States, and while the United States undoubtedly has a strong public interest in the claims involving their deaths, its interest pales in comparison to Malaysia's interest in litigating these claims. Malaysia's public interest includes not only an interest in the untimely deaths of the Malaysian pilot and crew, but also an interest in determining precisely what happened to Flight MH370, given that a Malaysian airline owned, operated, and maintained the aircraft; the flight took off from an airport in Malaysia for a destination outside the United States; and it disappeared from radar when Malaysian air traffic controllers were handing off the flight. And Malaysian authorities made substantial investments of time and resources in the wake of this disaster: Malaysia conducted extensive civil and criminal investigations, and changes in Malaysian law led to the creation of a new national Malaysian airline. It is Malaysia's strong interest in the events that give rise to the claims at issue here that makes this a distinctly Malaysian tragedy, notwithstanding the presence of the few Americans onboard Flight MH370. 

I really want to lash out against this reasoning.  But probably it would be like when I was a little kid fed up with allergy-testing shots and kicked my doctor.  Despite my reservations about forum non conveniens, see Prof. Curran, supra, I admit that my frustration stems from doubt that the case could be fairly prosecuted in Malaysia, even if the plane is found, rather than a confidence that the United States is a logical venue.  It might not even matter, as the Montreal Convention probably would curb recovery even in U.S. courts.  Insofar as I have any legitimate gripe, it's in part that forum non conveniens is just a witless rule out of step with a globalized world, and in part that Judge Jackson should have done some independent investigation of the adequacy of Malaysia as a forum.

The aftermath of the MH370 disappearance revealed concerning deficits in transparency, and, thus, potentially in accountability, in the Malaysian investigative process.  And while I don't think Boeing is to blame, having watched Downfall: The Case Against Boeing (2022) on Netflix just last weekend—Langewiesche wrote about the 737 MAX for The New York Times—leaves me distrustful.  Indeed, however relying upon precedent, Judge Jackson declined MH370 plaintiffs' last-ditch demand that, at least, Boeing be compelled to promise to abide by U.S. discovery in connection with any subsequent litigation abroad.

The D.C. Circuit affirmed, 946 F.3d 607, and the Supreme Court denied cert., 141 S. Ct. 451, in 2020.

⚖️

Here are some quirky pro se claims, just to stimulate the noggin.

Defamation/litigation privilege/statute of limitations.  Ray v. Olender, No. 13-1834 (D.D.C. Nov. 21, 2013).  Judge Jackson dismissed an odd $5m pro se defamation claim against an attorney, apparently based on a 1965 suit for copyright infringement and counter-suit.  She held the claim barred by the one-year D.C. statute of limitations and, anyway, based on statements in pleadings, protected by the litigation privilege.

Copyright/infringement.  Buchanan v. Sony Music Ent., No. 18-cv-3028 (D.D.C. May 26, 2020).  In a wide-ranging complaint, pro se plaintiff accused defendant music producers of stealing from songs he submitted for consideration.  Dismissed, because three of four songs were not registered; plaintiff could not show that any producer actually received a copy of the fourth song demo tape; and plaintiff anyway failed to allege substantial similarity, beyond allegation of "steal[ing]," between defendants' hits and the plaintiff's "I Gos Ta Roll." 

Copyright/pleading.  Butler v. Cal. St. Disbursement Unit, No. 13-1684 (D.D.C. Oct. 23, 2013).  Pro se plaintiff accused the state of copyright infringement for using his name in all capital letters.  Dismissed for failure to plead adequately.  BUTLER.

Copyright/subject-matter jurisdiction.  Miller v. Library of Congress, No. 1:18-cv-02144 (D.D.C. Nov. 5, 2018).  Judge Jackson dismissed for lack of subject matter jurisdiction a $100m pro se copyright infringement claim by an author of "a book of songs" who alleged that the Library of Congress stole the book and allowed it to be used by others.  Held, he should have filed in the Federal Claims Court.  I'd return the book, but the fines....

FTCA/FOIA, civil rights.  Cofield v. United States, 64 F. Supp. 3d 206 (D.D.C. 2014).  A Maryland prisoner, pro se plaintiff sought billions in damages against ICANN and the Obama Administration for improper FOIA denials and race discrimination.  On the latter count, the plaintiff essentially accused the government of establishing a business monopoly in ICANN that leaves African-American persons "intentionally omitted, to be left behind when it comes to technology ... by design[.]"  An intriguing idea, but not the best spokesperson.  The court dismissed for sovereign immunity, as the Federal Tort Claims Act (FTCA) authorizes neither FOIA complaints, which do not entitle a plaintiff to tort damages, nor constitutional claims.

Defendant-Justice Scalia (Shawn CC BY-NC 2.0)

Legal profession/sovereign immunity, absolute immunity.  Smith v. Scalia, 44 F. Supp. 3d 28 (D.D.C. 2014).  Yup, that Scalia.  The pro se plaintiff was denied admission to the Colorado Bar after "refus[ing] to submit to a mental status examination," and then sued officials, including judges who denied his appeals.  Even the International Covenant on Civil and Political Rights, which rated among plaintiff's theories, cannot overcome federal sovereign and judicial absolute immunities, Judge Jackson held.  She declined to order Rule 11 sanctions, but did hit the frequent-filing plaintiff with a pre-filing injunction, going forward.

Maoz Falafel, Paris
(Björn Söderqvist CC BY-SA 2.0)

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Finally, I don't really care what happened in this case; I just love its name: A Love of Food I v. Maoz Vegetarian USA (D.D.C. 2014).  Plaintiff Love of Food was "a franchise of Maoz's vegetarian quick service restaurant" in D.C.  When the business failed, Love of Food blamed Maoz.  Maoz had failed to register its offering prospectus properly with the state of Maryland, but, Judge Jackson held, that omission did not give Love of Food standing.  The court issued mixed results on the, uh, meatier claims of misrepresentation, finding a material dispute of fact over the veracity of startup estimates.

Just wait 'til Big Meat hears about this.

I gos ta roll.