Boston Bar panel surveys landscape of privacy law, data protection policy, class action litigation

Attorneys Melanie Conroy, Marjan Hajibandeh, and Matthew M.K. Stein

We had great fun yesterday, as lawyer fun goes, talking about privacy law in the United States, from the impact of the Privacy Shield collapse to the latest litigation under California's groundbreaking consumer privacy protection law.  I was privileged to appear in a Boston Bar Association program on privacy class action litigation, led by attorney Melanie A. Conroy, CIPP/US, of Pierce Atwood LLP, alongside practicing-attorney panelists Matthew M.K. Stein, of Manatt, Phelps & Phillips, LLP, and Marjan Hajibandeh of CarGurus, Inc. 

Our topical reach was a breathless sprint across a dramatic landscape.  We opened with our respective thoughts on developments in privacy law, Conroy observing that the fast-paced field has undergone seismic shifts again and again in recent years, from the implementation of the California Consumer Privacy Act (CCPA) to the $18m Equifax data breach settlement in Massachusetts.

I spoke to the impact of the European Court of Justice decision ("Schrems II" (ECJ July 16, 2020)) invalidating the U.S.-EU Privacy Shield as a motivator for U.S. reform.  Besides the significance of the case in Europe and our foreign relations, the decision signals that a quarter century after adoption of the first European Data Protection Directive, Europe's patience with American recalcitrance has finally run out.

Julie Brill (MS CC) and William Kovacic

Former Federal Trade Commissioner Julie Brill told the Senate Commerce Committee this week that in two years, 65% of the world will be living under data protection laws, most of them modeled after the EU General Data Protection Regulation (GDPR).  As former Federal Trade Commission (FTC) Chairman William Kovacic put it, if we don't pass legislation in the United States, "we will get a national privacy policy: the GDPR."  As I tweeted this week, hearing testimony drove the usually cool and collected Senator Maria Cantwell (D-Wash.) to exclaim, "My God, this is clear, we need a strong privacy law." And Americans are ready; Brill said that nine out of ten Americans now believe that privacy is a human right.

Sen. Cantwell

Our panel ran down the latest developments in class action privacy litigation, loosely divided on the fronts of biometric data class actions, mostly arising under Illinois's pioneering Biometric Information Privacy Act; CCPA-related class actions in California; and data breach litigation.  I ran down cases in the latter vein and talked some about the present circuit split over Article III standing.  Federal courts have divided over whether "theft alone" can constitute concrete injury for constitutionally minimal standing, or plaintiffs must show some subsequent misuse of their data.  This issue is not limited to the data breach area, but has implications across a wide range of statutory enforcement systems, including the Fair Credit Reporting Act.

For my part, I predict that our dawning, if belated, understanding of the monetary value of personally identifiable information (PII) will lead us to the inevitable conclusion that theft alone suffices.  This is evidenced, for example, in Hogan v. NBCUniversal (D.R.I. filed Aug. 27, 2020), over the sale of Golf Channel subscriber identities, which subsequently were associated with other PII and resold.  Though for the time being, my favored conclusion is arguably not the inclination evidenced in the U.S. Supreme Court in Spokeo, Inc. v. Robins, in 2016.  Senator Dick Blumenthal (D.-Conn.) mentioned this week, apropos of current events, that Justice Ginbsburg, joined by Justice Sotomayor, dissented in Spokeo on just this point.

The late Justice Ginsburg; Sen. Blumenthal

Our next panel focus was developments in the First Circuit and Massachusetts.  In Massachusetts Superior Court in Boston, data breach litigation, filed in May 2019, against Massachusetts General Hospital, Brigham & Women's Hospital, and the Dana-Farber Cancer Institute, over online patient-service communications occurring outside secure portals, raises the very question of concrete harm, which may be resolved differently at the state level than under the federal Constitution.  Meanwhile in federal court, the same issue in data breach litigation, filed in March 2020, in Hartigan v. Macy's, highlights the lack of First Circuit precedent on the question since Spokeo, while citing strong pre-Spokeo indications that the First Circuit would favor the misuse-required position.

In parting observations, I offered that we have a long road ahead.  Of all the bills pending in Congress (see EPIC's excellent April report), only some propose a private cause of action and none attacks the problem of government surveillance, both purported prerequisites to European restoration of authorized trans-Atlantic data flow.  Within the U.S Congress, there appears to be bipartisan support for some kind of nationwide privacy legislation.  But the questions of private or FTC enforcement, and whether preemption would mean a legislative floor or ceiling remain sticking points that could derail the process.

Ryan, '18, joins government practice at R.I./Mass. firm

Mike Ryan

The law firm of Pannone Lopes Devereaux & O'Gara LLC, with offices in Rhode Island, Massachusetts, and Florida, has hired Michael F. Ryan, Jr., J.D. '18, to practice in government and legislative affairs.  Mike is an alum of my Torts classes and was a TA for me in 2015-16.  He worked through law school part-time while already making a name for himself in Rhode Island state political circles.  Here is his biography from the firm's press release:

Attorney Ryan’s previous experience includes government relations, legislative affairs and business law matters. He has significant experience negotiating with municipal and state government agencies regarding economic incentives for Opportunity Zone real estate development and worked as Manager of Public Affairs and Government Relations for a lobbying and communications firm. Attorney Ryan earned his J.D. from the University of Massachusetts School of Law, summa cum laude, where he was Executive Notes Editor of the Law Review. He graduated from the University of Rhode Island, summa cum laude, with a B.A. in Political Science and is a member of the Phi Beta Kappa Honor Society. Attorney Ryan is admitted to practice in Rhode Island and is a member of the Rhode Island Bar Association Business Organizations Committee.

Head to Pannone Lopes for all your government practice needs!

Court rejects deep-brain-stimulation patient's contract, IIED claims against Boston nonprofit hospital

A patient dissatisfied with deep-brain stimulation (DBS) to treat her depression could not prevail against her nonprofit hospital, the Massachusetts Appeals Court ruled yesterday, in part because she sued in contract rather than medical malpractice.

The plaintiff-patient sued Brigham & Women's Hospital, Inc. (BWH), in Boston over her DBS treatment, which is experimental with respect to depression, but is approved to treat Parkinson's.  BWH paid for the $150,000+ treatment, which the plaintiff's insurance would not cover, with the design of expanding a program in psychosurgery.

CT scan of DBS implants
(Dr. Craig Hacking, A. Prof Frank Gaillard CC BY-SA 4.0)

The plaintiff initially reported favorable results.  But the relationship between patient and hospital "sour[ed]," the court explained.  The plaintiff became dissatisfied with the repeated interventions required to replace batteries and refine the DBS.  She believed that the hospital was short-changing her treatment because the psychosurgery program was not taking off as hoped.  The hospital pledged to do what was needed to support plaintiff's continued treatment, but the fulfillment of that pledge incorporated some cost-benefit analysis.  And the hospital would not accede to the plaintiff's demand that BWH pay for her treatment elsewhere.

The plaintiff sued BWH for breach of contract, promissory estoppel, and intentional infliction of emotional distress (IIED).  The trial court entered summary judgment for the hospital, and the Appeals Court affirmed.

BWH (Jim McIntosh)

The court's opinion spends most of its pages establishing that there was no broken promise to support the breach of contract and promissory estoppel claims.  The hospital promised to treat the plaintiff for free, and it never charged her.

Of salience here, the court also concluded that the plaintiff had misstated a medical malpractice claim as a breach of contract claim, possibly to get around the $100,000 state cap on medmal liability for charitable organizations (not to mention the claims-vetting process of the commonwealth's medical malpractice tribunal).  The plaintiff asserted medmal would not be the appropriate cause of action for an experimental treatment and a dispute over cost.  But the court pointed to the plaintiff's repeated claims of the defendant's failure to comply with "scientific and ethical standards."

Finally, the court's treatment of IIED was instructive, if routine:

To prevail on this claim, [plaintiff] must prove "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was 'extreme and outrageous,' was 'beyond all possible bounds of decency' and was 'utterly intolerable in a civilized community'; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was 'severe' and of a nature 'that no reasonable man could be expected to endure it'" (citations omitted) [gendered references in original] ....

BWH's actions do not constitute the sort of extreme and outrageous conduct that would allow [plaintiff] to recover for intentional infliction of emotional distress. BWH's alleged wrongdoing arose in the context of its oral agreement to provide hundreds of thousands of dollars in free care to a patient who otherwise could not afford treatment. Even putting "as harsh a face on [BWH's] actions ... as the basic facts would reasonably allow" [citation omitted], no jury could find it utterly intolerable in a civilized society for BWH to discuss alternative treatment options with [plaintiff], to take cost into account in determining what treatment to provide, or to refuse to pay for her treatment at another hospital (without interfering with her ability to transfer her care at her own expense).

Thus, the court rejected IIED as a matter of law.

The case is Vacca v. The Brigham & Women's Hospital, Inc., No. 19-P-962 (Mass. App. Ct. Sept. 21, 2020) (oral argument).  Justice Eric Neyman wrote the unanimous opinion for a panel that also comprised Justices Englander and Hand.

Man may sue police in tort, civil rights for violent beating, despite his conviction for resisting arrest

"Defund the police" has been a rallying cry in recent protests. (Photo at BLM
encampment, New York City, June 26, 2020, by Felton Davis CC BY 2.0.)

The Massachusetts Supreme Judicial Court last week vacated and remanded the trial court's judgment for police in a civil suit with racial overtones.

Authoring the unanimous opinion, Justice David A. Lowy characterized the case as "disturbing."  The court recited the facts as most favorable to the plaintiff, Mark S. Tinsley, the non-moving party.  According to that recitation, Tinsley, who is African American, was stopped by Framingham, Massachusetts, police for speeding in 2012.  Suspecting Tinsley of hiding something, police ordered Tinsley from the car, and he refused.  The traffic stop by two police officers became a physical struggle with five to pull Tinsley from the car.  Once he was out of the car, on the ground,

several police officers began beating him.  Tinsley did not resist. He tried to put his hands behind his back so that the police officers would handcuff him and thus, he thought, stop hitting him. The police officers did not stop. [One officer] struck Tinsley's collarbone and upper shoulder, and stomped on Tinsley's left hand. [A second officer] sprayed Tinsley with pepper spray. [A third officer] called Tinsley a "fucking n[word]" [footnote: "At trial, [the third officer] denied that he or any other police officer swore at Tinsley or called him 'any names.'"] and kicked Tinsley in the head. While Tinsley was on the ground, an officer handcuffed him [footnote omitted quoting Tinsley's trial testimony]. Tinsley suffered a broken nose, a broken finger, and a wound on the side of his head that required stitches.

Tinsley was convicted on counts including assault and battery (criminal), carrying a dangerous weapon ("a spring assisted knife"), and resisting arrest.  While criminal charges were pending, Tinsley sued for civil rights violation and tort claims including assault, battery, intentional infliction of emotional distress, and false arrest.  Upon two motions, the latter decided after the conclusion of the criminal proceeding, the trial court entered judgment for defendants police and town on all counts.

The question on appeal was whether the trial court properly recognized in the civil proceeding the collateral estoppel effect of Tinsley's criminal conviction.  The doctrine of collateral estoppel precludes a later civil court from re-trying facts and conclusions of law that were determined by jury and court in an earlier criminal proceeding.  Thus, after conviction, a defendant may not argue his innocence in a later case.

However, the facts deemed determined in the earlier criminal proceeding are limited to the facts that supported conviction.  Tinsley argued, and the Court agreed, that the jury's conviction was not inconsistent with Tinsley's claim of excessive force for the beating he endured on the ground, outside the car, after his arrest.  The Court reasoned that Tinsley was placed under arrest when he was seized inside the car.  Insofar as Tinsley was resisting arrest inside the car, then, collateral estoppel pertains, precluding suit on the tort of false arrest.  But the jury may have based its conviction on a fact pattern that ended before Tinsley was on the ground. So the facts of the beating, occurring after arrest, remain arguable in the civil case.

The Court explained,

Even where the use of force to effect an arrest is reasonable in response to an individual's resistance, the continued use of force may well be unreasonable, as an individual's conduct prior to arrest or during an arrest does not authorize a violation of his or her constitutional rights....  To hold differently would implicitly permit police officers, in response to a resisting individual, to exert as much force as they so choose "and be shielded from accountability under civil law," so long as the prosecutor could successfully convict the individual of resisting arrest.

Accordingly, the Court vacated judgment for defendants on the civil rights claim and the assault, battery, and IIED counts, and remanded the civil case to proceed.  The false arrest claim was properly barred.

The case is Tinsley v. Town of Framingham, No. SJC-12826 (Mass. Sept. 17, 2020).  Chief Justice Gants participated in deliberations before his death.

Communication education makes people better

Preparing for my Trump Litigation Seminar next week, I just re-read the final chapter of James Zirin's Plaintiff in Chief.  Variously attributed, Zirin catalogs the vocabulary of our truth-challenged culture, discussing "post-truth" (Oxford Word of the Year 2016), "truth [that] isn't truth," (Rudy Giuliani), "truth decay" (RAND), and "alternative facts" (Kellyanne Conway).  And, of course, who could forget the great Stephen Colbert's groundbreaking "truthiness" (The Wørd, and a real word).  Along with Trevor Noah, I've wondered at the breakdown in distinction between fact and opinion.  More than once, my wife, in slack-jawed witness of the news on TV, has declared the need for media literacy education in our K12 schools (and perhaps, I add, in our senior centers). 

Dr. Sherry Morreale (UCCS)

It turns out that media literacy is just one piece in the puzzle of what might be missing in our society today. Communication Professor Sherwyn P. Morreale has co-authored a series of scholarly articles on Why Communication Education Is Important.  Her third installment, co-authored with Joseph M. Valenzano and Janessa A. Bauer, has just won the 2020 Distinguished Article Award in the Basic Course Division of the National Communication Association (NCA).  The abstract speaks to the range of life skills that are bolstered by communication education (my highlighting).

The results of this study argue that communication, and specifically oral communication education, is critical to students’ future personal and professional success. Similar to two earlier studies, thematic analysis of 679 documents in academic and popular press publications, published from 2008 to 2015, provide support for the centrality of the communication discipline’s content and pedagogy. These results reinforce the importance of communication to enhancing organizational processes and organizational life; promoting health communication; enriching the educational enterprise; understanding crisis, safety, risk, and security; improving interpersonal communication and relationships; influencing diplomacy and government relations; being a responsible participant in the world, socially and culturally; developing as a whole person; and succeeding as an individual in one’s career and in business. The kinds of communication addressed as important in each of these nine general themes are outlined, and the results are compared with those in the first two iterations of the study.

This conclusion might seem self-evident to the academic outsider (technical term, "real people") but it readily escapes the grasp of the bean counters who run today's STEM-obsessed universities, where faculty in the social sciences (law included) are tormented with demands that their departments generate revenue to justify their existence.  Because that's why we educate people, for the money.

The current study is titled, Why communication education is important: a third study on the centrality of the discipline’s content and pedagogy, and appears at 66:4 J. Communication Educ. 402 (2017).  Dr. Morreale previously published, with co-author Judy C. Pearson, Why Communication Education is Important: The Centrality of the Discipline in the 21st Century, 57:2 J. Communication Educ. 224 (2008); and, with co-authors Pearson and Michael M. Osborn, Why communication is important: A rationale for the centrality of the study of communication, 29:1 J. Ass'n Communication Admin. 1 (2000).

Full disclosure: Dr. Morreale is my aunt.  She always was the cool aunt.  So her parents are probably to blame for my academic nature, and she, in part, for the nurture.

'Miss Juneteenth' speaks both to problems of our times and to timeless problems

Thanks to the Duke (University) Screen/Society, yesterday, I virtually attended a screening and discussion of the 2020 film from Vertical Entertainment, Miss Juneteenth.  It is an insightful and gratifying film, so I want to make this note of it.  In our covid era, it's easy to miss new releases.

Written and directed by Channing Godfrey Peoples, Miss Juneteenth is the story of Fort Worth, Texas, teen Kai (Alexis Chikaeze) and her mom, Turquoise Jones (Nicole Beharie), as Kai prepares to participate in the Miss Juneteenth beauty pageant, a pageant that her mother happens to have won, back in the day.

Yet that description unfairly oversimplifies the film, as would any description that confined the story by race or class.  The film richly portrays Turquoise and Kai's lives.  It explores mother-daughter conflict, romantic entanglements, and socioeconomic struggles. Simultaneously, the film comments softly, not heavy-handedly, on pageant culture, civil rights, the American dream, and, of course, never trumpeted yet omnipresent, the glorious but unfulfilled promise of freedom marked by Juneteenth.

In a striking scene set in a Juneteenth museum, the young contestants are being oriented on Juneteenth history by a passionate docent when the schoolmarmish pageant wrangler directs the kids' attention to framed pictures of past Juneteenth queens.  The docent was speaking to the legacy of slavery, driven out of the American South, while the pageant director educates the girls on such etiquette nuances as table manners imported with the Pilgrims.  The girls' gazes drift to the latter display, which, I contend, speaks subtly but powerfully to how African-American communities have long wrestled with the fine line between cultural subjugation and assimilation that courses through American history from Reconstruction to Civil Rights to present day.  I'm reminded at once of Mike Pence's oddly third-person reference from Fort McHenry in August to "American people ... standing with ... our African-American neighbors" and Dulce Sloan's missive this week on The Daily Show with Trevor Noah, "The Messed Up History of Black Hair in America."

A character in the film once comments, "Ain’t no American dream for black folks.”  As we wondered at the latest news of government ineptitude yesterday morning, contemplating how our salaries are going down while our workloads are going up, my wife speculated that the anger and resentment that people both black and white feel toward the lack of opportunity for upward mobility in this country is really much the same.  The difference, she suggested, is that black people have always known that meritocracy is an American myth, while white people are just figuring it out.  (She cited Michael Sandel on WBUR talking about his Tyranny of Merit.)

Miss Juneteenth has given me a lot to chew over.  I haven't even mentioned my own daughter's foray into the pageant world when she was a teen: Miss Rhode Island High School 2016!  In Miss Juneteenth, as Turquoise is working herself to death to scrape together the money to support Kai's pageant bid, Kai's father, Ronnie (Kendrick Sampson), shakes his head: "An $800 dress just don’t make no sense to me."

Word for word, I swear, Peoples stole that line from me.

Here is the trailer from Vertical Entertainment.

Happy Constitution Day.

Mass. Chief Justice Ralph Gants dies

Massachusetts Supreme Judicial Court Chief Justice Ralph Gants has died.

Read more:
• NECN
• Boston Globe
• Boston Herald

Also:
• Ralph Gants on this blog

Chief Justice Ralph D. Gants was a graduate of Harvard undergrad and law, one-time AUSA, and recipient of an honorary law degree from UMass Law at 2016 Commencement (pictured and below).

Also:
• On criminal justice reform with Jim Braude at WGBH News
• On access to justice at Harvard Law School

HT @ Prof. Cleary.

Boston Bar webinar will probe privacy law latest

Coming soon, the Boston Bar Association will host a webinar on data privacy class action litigation (and related privacy stuff too).  I'm trying to get up to speed on all of the latest developments so that I will not disappoint moderator Melanie A. Conroy, attorney and CIPP/US, of Pierce Atwood LLP, who graciously if foolhardily invited me to participate.  For The National Law Review in April, Conroy wrote the authoritative rundown on the Mount Ida student class action, which treatment inspired me to write about the case for The Savory Tort.

My task is daunting; a lot happened while I was in Africa early in the year and out of the office over the summer.  Our subject matter includes the new regulations under the California Consumer Privacy Act, burgeoning lawsuits under the Illinois Biometric Information Privacy Act, and the shock waves just now hitting the United States from the "Schrems II" decision in the European Court of Justice.  (Brush-with-greatness note: Max Schrems has been in my car.  Long story.)  That's just to get the ball rolling.

Co-panelists are Matthew M.K. Stein, of Manatt, Phelps & Phillips, LLP, and Marjan Hajibandeh, of CarGurus, Inc.  Here are the program details from the BBA:

BBA Webinar: Roundtable on Recent Developments in Data Privacy Class Action Litigation
Thursday, September 24, 2020, 10:00 to 11:00 a.m.
This webinar will explore the growing prevalence of data privacy class actions through recent developments in data privacy legislation, expanded private rights of action, biometric privacy claims, consumer data suits, post-breach and cybersecurity litigation, and the increasingly complex landscape of rulings by federal courts of appeals. The presenters will discuss national trends and developments within the First Circuit and in Massachusetts. The discussion will look ahead to areas to watch and trends that may shape the development of data privacy class actions in the coming months and years.

The program is free for BBA members and $100 for non-members. Registration at least two hours before the program-start is essential to receive the Zoom link.

Animal champion Barr, J.D. '21, wins scholarship

Abbey and Toby

An alum of my torts class and president of the Student Animal Legal Defense Fund at UMass Law (I'm a faculty adviser), Abbey Barr is one of three first-place national winners of the 2020 Advancement of Animal Scholarships.  The scholarships are awarded by the national Animal Legal Defense Fund (ALDF) for supporting the organization’s mission “to advance the interests and protect the lives of animals through the legal system.”

Here's coverage of Abbey at ALDF; read more at UMass Law.  From hometown Falmouth, Mass., and a graduate of sociology from Keene State College in New Hampshire, Abbey is passionate about animal protection, besides being an energetic collaborator and valuable counsel to her peers.  I look forward to her vibrant advocacy as a member of the bar, and to the difference she's going to make in the lives of many of God's creatures.

Defamation case against Trump fits woeful pattern, while DOJ defense is defensible, if disconcerting

Notice of Removal in Carroll v. Trump

The recent news (e.g., N.Y. Times) that the Department of Justice (DOJ) will defend the President in the defamation suit arising from sexual-assault allegations by E. Jean Carroll has caught the interest of both my Torts I class and my Trump Litigation Seminar (TLS).  The DOJ's announcement manifests on the docket in removal of the case from the New York Supreme Court to the U.S. District Court for the Southern District of New York.  Links and key court documents are now posted atop The Savory Tort's TLS blogsite.

The strategy of using a sexual-assault denial and accompanying charge that the accuser is a "liar" as the basis for a defamation suit against the alleged perpetrator, i.e., Carroll v. Trump, is now, unfortunately, a familiar feature of our high-profile tort-litigation landscape.  It might have been Bill Cosby who committed the pattern to popular culture's long-term memory.  The Cosby case came complete with counterclaims, making the defamation dispute the dueling ground for truth and falsity.

It's unfortunate, because the tort of defamation was not designed to be a truth-finding mechanism.  Historically, truth wasn't even a defense; that's a modern artifact inferred by the freedom of speech.  The flaws in our defamation law are legion and one of my favorite subjects; one that matters here is that defamation is rarely capable of delivering exoneration, much less satisfying any of a plaintiff's legitimate aims.

Among reforms of defamation that have been proposed over the years are mechanisms to ferret out and publicize truth, rather than focusing on the plaintiff's alleged injury or the defendant's asserted rights.  Though not always well crafted, laws that incentivize correction or settlement over protracted litigation at least aim in the right direction.  Regrettably, reform of defamation has been hamstrung for decades by the Supreme Court's well intentioned but ultimately improvident constitutionalization of defamation in the 1960s and 1970s.  I hope one day, we'll wade our way out of that morass.

Anyway, on the question of the DOJ's intervention, there's a curious conundrum about Carroll v. Trump.  The DOJ position is that Trump was acting in the scope of the office of the President when he denied Carroll's sexual-assault allegations.  We would, after all, hope that any President would deny such allegations, and we would have to admit that the truth of the allegations bears on his fitness for office.  Thus, the DOJ reasons, it must represent the position of the President.  The bitter pill for Trump opponents to swallow is that that's probably right.

The kicker comes in that Trump's denial is only presidential if he's telling the truth.  If he did what Carroll alleged, then the operative facts of the case occurred before Trump was elected.  His later denial then feels more like the mere pleading of a private defendant in an ordinary civil suit.  You know, one in which we might debate what the meaning of is is.  So the rationale for defense by DOJ is predicated on the very question at issue in the litigation.  For DOJ to take the President's denial as true, for now, is a fair, if uncomfortable, choice.  If one day the court rules in Carroll's favor, though, maybe we can send the legal bill to the former President.

Thanks to TLS student Ricardo Serrano and Torts student Paul McAlarney for helping me think about this one.

[UPDATE Oct. 27, 2020.]  The court denied the government's motion to substitute party on Oct. 27, 2020.  See Special Coverage at the Trump Litigation Seminar.