Taxpayers help to fatten Big Law in prosecution that Chinese community chalks up to racial profiling

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The American trend to embrace attorney fee-shifting is a cash cow for the corporate defense bar. A pending case speaks to the problem, as the Government seeks more than $600,000 in fees on behalf of white-shoe law firms from a man whom civil rights advocates say was racially profiled.

Waning of "the American Rule."  The American legal system is unusual in the world for its default rule that every party pays its own way in litigation. This "American rule" contrasts with "the English rule," adopted in most of the world's jurisdictions, by which "loser pays."

But in part in acknowledgement of the abnormally high transaction costs, especially attorney fees, of litigation in the United States, some statutory systems have adopted the English rule. In civil rights, for example, key federal statutes require fee-shifting to victorious plaintiffs. The concern is that the victims of civil rights violations will not otherwise be able to incentivize lawyers to take their cases.

That logic has leached out of civil rights, though, into ever more adjacent areas of legal practice. Most civil claims are filed against corporations, and most civil claims are unsuccessful. So corporations and their lawyers have been keen to think of new ways to be paid for their trouble, if not to deter lawsuits to begin with. 

A key such area is anti-SLAPP, that is, legal measures against "strategic lawsuits against public participation." Anti-SLAPP, about which I have written many times, is wildly popular with lawmakers: now the law in a majority of states, perennially proposed in Congress, and presently being drafted into EU law.

Anti-SLAPP began as a modest and rational means to deter corporations from weaponizing frivolous litigation against protestors, silencing them with legal fees. Thus, many anti-SLAPP laws penalize unsuccessful civil plaintiffs by charging them for the defendant's attorney fees. But the corporate media defense bar fell in love with anti-SLAPP. It's now a potent weapon for corporations to silence persons who dare say they've been defamed, or had their privacy invaded, in mass publication. 

It's important to remember that just because a plaintiff is unsuccessful in civil litigation does not mean that the plaintiff was not wronged. Defamation and privacy law is rife with defendant-friendly mechanisms designed to over-protect media defendants from even meritorious claims, from evidentiary privileges, to limitations on discovery, to daunting burdens such as the New York Times Co. v. Sullivan (U.S. 1964) "actual malice" standard. Anti-SLAPP piles on another prophylactic defense, one that works so fast, a defendant need not even answer the complaint.

I've been consistent in my opposition to anti-SLAPP's poisonous growth, especially its fee-shifting penalty. Frequent litigant Donald Trump, by the way, has been on both sides of anti-SLAPP fees, having been awarded nearly $300,000 in attorney fees against Stormy Daniels in response to her claim of defamation. It sometimes amuses me and sometimes saddens me to see civil rights advocates, journalists, and media law professors align themselves with mega-corporations in publishing, eager to line the pockets of Big Law.

United States v. Yu. The instant case is criminal, not civil. But the case involves a civil restitution statute that allows for a criminal defendant to be charged with the legal fees incurred by a "victim." 

Haoyang Yu, a naturalized U.S. citizen of Chinese descent, was a Boston-area engineer charged with 21 crimes in connection with his work developing chip technology for Analog Devices, Inc. (ADI). The court dismissed one charge and acquitted Yu of another before submitting 19 charges to the jury. The jury acquitted Yu of 18 charges and convicted him of one only: illegal possession of trade secrets. 

More or less, Yu took his work home with him, and his work included a proprietary chip design. The government had accused Yu of much worse: intention to steal ADI tech either to start his own company or to pass research to the Chinese government. Yu was caught up in a government crackdown amid fear of foreign espionage in the American tech industry. The evidence did not bear out the suspicion.

Critics point to Yu's Chinese origin and ancestry to allege that he was a victim of racial profiling. The trial judge in the case even acknowledged, "It's hard to say that Mr. Yu’s race or ethnicity was not a factor here" (Lexington Observer, June 2, 2023). APA (Asian Pacific American) Justice has tracked Yu's case. The Intercept covered the case in 2022. Critics pointed out that allegations such as those in Yu typically are resolved in mere civil litigation over theft of trade secrets. Yu was sentenced to six months' imprisonment and a fine, and then was sued by ADI.

The part of the case pertinent here is the Government's motion in federal district court that Yu be ordered to pay $606,879 to ADI attorneys at high-end firms WilmerHale and Quinn Emanuel. The Government invoked the Mandatory Restitution to Victims Act (MRVA).

The MRVA was enacted in 1996. A U.S. Department of Justice (DOJ) summary of the law doesn't much conjure a corporation as the kind of "victim" the law was meant to help. DOJ imagined "[v]ictims of crimes such as telemarketing, child exploitation, interstate domestic violence and sexual assault." The summary contemplates victims' "lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense."

In contrast, the fat legal bills in Yu include, according to, e.g., Brian Dowling at Law360 (subscription), $1,865 per hour for a Quinn Emanuel partner to watch the trial from the gallery. Other hourly rates at Quinn range from $320 for a paralegal, $880 for a second-year associate, and $1,095 for a fourth-year associate, to $1,440 for "counsel."

When I was in practice in the mid-1990s, as a first- and second-year associate, my billing rate with Big Law in Baltimore and Washington, D.C., was in the neighborhood of $120 per hour. I made about $25 per hour. Today, in academics, I make about $115 per hour (unrealistically assuming I work only 40 hours per week for nine months). According to public data, my students graduating UMass Law today will make about what I did in 1995, public or private sector. No adjustment for inflation.

Multiplying out the Quinn counsel rate yields $2.88m per year. Even if only 20% is paid out in salary, that's $576,000 per year. Not bad. I bet, though, that the $1,865/hr. attorney, a former Acting U.S. Attorney, takes home better than 20%. I guess the difference between the 1990s and now is that back then, shame was still a thing. 

Meanwhile, the bar is eager to tell law schools that it no longer can afford to mentor and train lawyers on the job, and that we should purge from the curriculum the esoteria of legal theory and public policy in favor of producing "practice ready" billing machines.

Quinn Emanuel has an entertainment and media litigation group that defends defamation and privacy claims for mass-market publishers. If I find myself defamed or otherwise wronged by a Quinn Emanuel media client, I shudder to think what the tab might be if I sue, but can't prove actual malice. Thanks to anti-SLAPP fee-shifting, Quinn Emanuel can be very well compensated even if one of its clients is negligent in decimating a person's reputation.

Next time a purported champion of the First Amendment or Fourth Estate tells you what a good idea anti-SLAPP is, think about the mahogany furniture and extravagant lifestyle of the Big Law Boston lawyer.

In an MRVA case, Big Law even gets the benefit of taxpayer-funded litigation to get paid, as the Government carries on the demand on behalf of the "victim."

The parties in Yu are now wrangling over the fee demand. The court asked the Government to break down the ask in a spreadsheet. The Government filed a data disc in December.

The case is United States v. Yu (D. Mass. indictment filed 2019), Judge William G. Young presiding.

Consumer-unfriendly designs resist right to repair

The nation is in the grip of a battle over right-to-repair laws. I'm a fan.

Right to repair ensures consumers' ability to repair, or to have repaired, the products they own without having to go back to the original manufacturer. Corporations in the tech era have sought to lock down their products and the business of servicing them, both to profit from service and to protect intellectual property. The behavior is anti-competitive and monopolistic, which is to say, it's how things work in America.

Consumers can be kept out of products, and independent repairers can be driven out of business, by legal and design mechanisms. Legally, a consumer might be barred from repairing a product by contractual clauses in product sale and warranty or by clickwrap terms and conditions of software. Right to repair laws are effective to fight back against these limitations.

Product design can exclude consumers from repair access, too, and this is the more challenging problem. Makers always claim that design limitations on repair are incidental or required for the integrity of the product. A car's onboard computer might be accessible only with a proprietary interface, a measure the carmakers says is necessary to protect the consumer from hacking. A cell phone might break when it's not pried opened properly, an inconvenience the maker says is necessary to pack safely the features consumers want into so small a space.

More than half the states had right to repair on the legislative docket in 2023, the National Conference of State Legislatures counted, with new enactments in California, Colorado, New York, and Minnesota. NPR reported recently on the latest from Michigan. The White House and Europe are on board, and Apple seems to have gauged the winds and decided to play nice. 

Apple's strategy is not the norm. Despite the popularity of right to repair and its obvious essentiality for a free market, right to repair has been elusive. Carmakers have been especially resistant.

Massachusetts adopted right to repair by voter initiative in 2012. The legislature came on board the next year. Carmakers resisted at every turn. Voters were compelled in 2020, despite deceptive industry political tactics, to approve another initiative that expressly expanded the law to apply to automobile telematics, that is, cars' onboard diagnostic data. 

Carmakers continue to resist, tying the law up in litigation, with claims such as federal preemption (this blog in July 2022). Federal regulators initially sided with carmakers, but in recent months, pressured and shamed by Massachusetts senators and the White House, have grown indecisive and tried to plot a middle course. The problem is exacerbated with electric vehicles, as carmakers resist right to repair by leveraging the Administration's wish to transition inventory.

In carmakers' latest fit of passive-aggressive resistance to right to repair, they're refusing to include features such as internet connectivity in states such as Massachusetts. If we insist that carmakers share, then they'll pack up their toys and go home.

A car cabin air filter usually is easily accessible behind the glove box.
Not on the 2023 Nissan Versa. (Generic image.)
Matt Woolner via Flickr CC BY-NC-SA 2.0.

I believe I saw for myself last weekend evidence of carmaker resistance-by-design to right to repair. 

My family acquired a 2023 Nissan Versa last year. The dealer purchase and the car itself have been nothing but a series of frustrations and disappointments. The seller was deceptive in pricing and failed to provide standard equipment; I might write about those issues another time. I am shopping for counsel now to bring a design-defect claim against Nissan: also a story for another time. My advice in short: don't buy a Nissan.

My latest micro-frustration was over the cabin air filter. A passenger car's cabin air filter is almost invariably located behind the glove box and easily changeable by the owner. No longer in the 2023 Versa.

Even removal of the glove box first requires the extraction of six screws; the box's latch assembly comes out too, along with two of the screws. It's not easy to replace later. 

Behind the glove box there is ample room for a cabin air filter; it's not there. Rather, a lower side panel in the passenger compartment also must then be removed. The plastic pins for the side panel are not made for repeated removal. So repeated access to the filter seems to ensure that the interior plastic walls will need replacement, too, in time.

Finally, one can reach the filter, though removing it from a too-small access window means squeezing it, thereby diminishing the integrity of the new filter one puts in.

I can imagine no good reason for the relocation of the filter than to make it more difficult for consumers to replace it themselves. And for those who don't and do take the car to a Nissan service provider, the now more involved operation, especially removal and replacement of the glove box, will increase the labor cost. Win-win for Nissan.

That's just the tip of the iceberg. Makers are doubling down on consumer-resistant designs.

I want to replace the faulty charging port on my more-than-two-year-old Google Pixel 3 cell phone. One would think it an easy and foreseeably necessary operation to replace an essential external port with pins and contacts that bend, break, and degrade over time, faster than the electronics they serve. 

But I've read online that it's nearly impossible for an amateur such as me to pry the phone open, to access the port's plug-in, without shattering an interior glass panel. Why? To sell me a Pixel 8, I suspect.

Resistance to right to repair through deliberate design will be much harder for consumers to fight than mere terms and conditions or even proprietary codes. Physical design limitations are difficult to detect and disallow. Industry capture of regulators doesn't help.

Right to repair might have won the battle of public opinion, but it's far from becoming consumers' reality.

Consumers turn tables against corporate defense in compelled arbitration of information privacy claims

Image via www.vpnsrus.com by Mike MacKenzie CC BY 2.0

Consumer plaintiffs turned the usual tables on corporate defense in the fall when a federal court in Illinois ordered Samsung Electronics to pay millions of dollars in arbitration fees in a biometric privacy case.

In the underlying arbitration demand, 50,000 users of Samsung mobile devices accuse the company of violating the Illinois Biometric Information Privacy Act (BIPA). BIPA is a tough state privacy law that has made trans-Atlantic waves as it fills the gap of Congress's refusal to regulate the American Wild West of consumer privacy.

Typically of American service providers, Samsung endeavored to protect itself from tort liability through terms and conditions that divert claims from the courts to arbitration. The (private) U.S. Chamber of Commerce champions the strategy. Arbitration is reliably defense-friendly. Rumor has it that arbitrators who don't see cases corporations' way don't have long careers. And companies bask in the secrecy that shields them from public accountability. (Read more.)

Resistance to compelled arbitration has been a rallying cause of consumer advocates and the plaintiff bar. For the most part, resistance has been futile. But consumer plaintiffs appear to have a new strategy. The Chamber is not happy.

In the instant case, consumers alleging BIPA violation were aiming for arbitration. Arbitration rules, endorsed by Samsung's terms, require both sides to pay toward initial filing fees, a sum that adds up when 50,000 claims are in play. The consumers' attorneys fronted their share, but Samsung refused. The company weakly asserted that it was being scammed, because some of the claimants were deceased or not Illinois residents, both BIPA disqualifiers.

Samsung must pay its share of arbitration filing fees for living Illinois residents, the district court answered, at least those living in the court's jurisdiction. Many of those consumer claimants were identified with Samsung's own customer records. A few whom Samsung challenged, the claimants dropped from their number. Even when the court pared the list to consumers in Illinois's federal Northern District, roughly 35,000 were still standing.

"Alas, Samsung was hoist with its own petard," the court wrote, quoting Shakespeare. The court opined:

Samsung was surely thinking about money when it wrote its Terms & Conditions. The company may not have expected so many would seek arbitration against it, but neither should it be allowed to “blanch[] at the cost of the filing fees it agreed to pay in the arbitration clause.” Abernathy v. Doordash, Inc., 438 F.Supp. 3d 1062, 1068 (N.D. Cal. 2020) (describing the company’s refusal to pay fees associated with its own-drafted arbitration clause as “hypocrisy” and “irony upon irony”).

The American Arbitration Association, the entity with which the claimants filed pursuant to Samsung's terms, estimated Samsung's tab at $4.125 million when the number was still 50,000 claims.

Attorneys Gerald L. Maatman, Jr., Rebecca S. Bjork, and Derek Franklin for corporate defense firm DuaneMorris warned:

As corporations who employ large numbers of individuals in their workforces know, agreements to arbitrate claims related to employment-related disputes are common. They serve the important strategic function of minimizing class action litigation risks. But corporate counsel also are aware that increasingly, plaintiffs’ attorneys have come to understand that arbitration agreements can be used to create leverage points for their clients. Mass arbitrations seek to put pressure on respondents to settle claims on behalf of large numbers of people, even though not via the procedural vehicle of filing a class or collective action lawsuit. As a result, corporate counsel should carefully review arbitration agreement language with an eye towards mitigating the risks of mass arbitrations as well as class actions.

Samsung wasted no time appealing to the Seventh Circuit. The case has drawn a spate of amici with dueling briefs from the Chamber and associates, favoring Samsung, and from Public Justice, et al., favoring the consumer claimants.

The district court case is Wallrich v. Samsung Electronics America, Inc. (N.D. Ill. Sept. 12, 2023), opinion by Senior U.S. District Judge Harry D. Leinenweber. The appeal is Wallrich v. Samsung Electronics America, Inc. (7th Cir. filed Sept. 25, 2023).

Law immunizes school social worker in teen's suicide

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A public school social worker is immune from liability in the suicide of a 16-year-old boy, the Massachusetts Appeals Court ruled in the fall in a case at the border of the common law "suicide rule" and the law of sovereign immunity.

A student at Acton-Boxborough Regional High School, the troubled teen committed suicide at his home while on summer break in 2018. The teen had been under the care of a licensed clinical social worker on contract with the school district.

Six weeks before the teen's death, his girlfriend, another student at the high school, had told the social worker that the boy was drinking and weeping, exhibiting suicidal behavior, and in crisis. According to the plaintiff's allegations, the social worker assured the girlfriend that the teen would get the care he needed and that the social worker would inform the boy's parents.

The social worker met with the boy subsequently, but did not contact his parents. The girlfriend alleged that she would have contacted the parents had she not been assured that the social worker would, and that the social worker's failure appropriately to respond legally caused the teen to take his own life.

The "suicide rule."  It is sometimes said that American common law has a "suicide rule," which is expressed variably as a rule of duty, causation, or scope of liability. Under the rule, a person does not have a legal duty to prevent the suicide of another. In causal terms, an actor's failure to prevent the suicide of another cannot be deemed the legal cause of the suicide, because the intentional, in some jurisdictions criminal, suicidal act is a superseding proximate cause.

It is widely understood, however, that the suicide rule is not really a rule. That is, it's not an absolute. Rather the rule simply recognizes that non-liability is the result that courts most often reach in analyses of duty, causation, or scope of liability on the fact pattern of a decedent's family claiming wrongful death against someone who knew of the decedent's suicidal potential and failed to prevent the death. (Read more in Death case against Robinhood tests common law disfavor for liability upon negligence leading to suicide (Feb. 9, 2021).)

Massachusetts courts have demonstrated especial receptivity to liability arguments contrary to the suicide rule. In 2018, the Supreme Judicial Court (SJC) ruled "no duty" in a student-suicide case against MIT, but proffered an analysis that signaled leniency to the plaintiff's theory. Then in 2019, the SJC let a student-suicide case proceed against Harvard University. Reading the map of this forking road, the Appeals Court rejected liability for an innkeeper in the suicide of a guest in 2022.

Massachusetts also was home to the infamous case of Michelle Carter and Conrad Roy, which was never litigated in its civil dimension. Roy's family alleged that Carter actively encouraged Roy to commit suicide. The case demonstrates that the line between failure to prevent a suicide and assistance in committing suicide is sometimes uncomfortably fine.

Sovereign immunity.  The three cases from 2018, 2019, and 2022 all bore on the instant matter from Acton. But the Acton case also added a new wrinkle: the peculiar causation rule of the Massachusetts Tort Claims Act.

Sovereign immunity usually protects a governmental defendant, such as a public school, from liability in a case that otherwise would test the suicide rule. State and federal tort claims acts waive sovereign immunity in many personal injury lawsuits. But the waiver comes with big exceptions.

Suicide cases typically fail for either one of two exceptions. First, tort claims acts, including the Federal Tort Claims Act (FTCA), disallow liability predicated on an affirmative duty, that is, a failure to act affirmatively, rather than on an allegedly tortious action. Wrongful death complainants in suicide cases often allege the defendant's failure to intervene, and that allegation doesn't make the cut. FTCA liability can arise from an unreasonable "omission" of action. The line between such an omission and a failure to act affirmatively is fine and not material here, so I will conflate the two as immunized inaction.

Second, sovereign immunity waivers, including the FTCA, disallow liability for officials insofar as they exercise the discretion that it is their job to exercise. This exception for "discretionary function immunity" can be challenging to navigate, but is critical to prevent every governmental decision from collapsing into a tort case. If a government official makes a poor policy choice, the remedy should be in civil service accountability or at the ballot box, not in the courtroom. The tort system should be reserved for actions that effect injury by contravening social and legal norms. (Learn more with Thacker v. Tennessee Valley Authority, SCOTUSbrief (Jan. 13, 2019).)

These exceptions ordinarily would preclude liability on the facts of the Acton case, insofar as the plaintiffs claimed that the social worker failed to prevent the teen's suicide or committed a kind of malpractice in the the provision of counseling, leading to the suicide. The former theory would fail as inaction, and the latter theory would fail as disagreement over the social worker's discretionary choices.

However, Massachusetts statutes are rarely ordinary, and the Massachusetts Tort Claims Act (MTCA) is not co-extensive with the FTCA.

Under its section 10(b), The MTCA provides for discretionary function immunity similarly to the FTCA. Another section, 10(j), provides a potent state immunity not found in the FTCA and characterized as a rule of causation. (Read more in Court denies police immunity under state tort claims act in death of intoxicated man in protective custody (July 22, 2022).) The court in the Acton case did not reach the section 10(b) issue and dismissed the claims against the social-worker defendant under section 10(j).

Section 10(j) on its face recognizes the possibility of a claim "based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person" (my emphasis). But the section disclaims liability when the third-party conduct "is not originally caused by the public employer or any other person acting on behalf of the public employer."

The magic happens in the phrase "originally caused." And if you're expecting that that phrase has a well honed technical meaning, prepare to be disappointed.

Historically, common law courts sometimes tried to distinguish mere (pre-)"conditions" from "causes." The famous tort scholar William Prosser wrote in the 20th century on the futility of that semantic wrangling. He opined, and American common law tort in the 20th century recognized, that the salient distinction the courts had been chasing is between scientific causes and legal causes. Even if we can determine scientifically that a butterfly flapping its wings caused a tsunami, we do not necessarily conclude that the butterfly is responsible for the tsunami to a degree that would satisfy legal standards. (Read more in State supreme court upends causation in tort law, promising plenty post-pandemic work for lawyers (Feb. 28, 2021).)

Not every actor who exerts causal force along the chain of events that ends with personal injury is thereby legally responsible for that injury. Tort law employs the term "proximate cause" in an effort to parse the timeline and trace back legal responsibility only so far. Of course, once we acknowledge that ours is a problem of degree, we always will have to wrestle with "how much is too much?"

Like common law courts historically, the legislators who drafted MTCA section 10(j) likely were after this same distinction, even if they might have drawn the line in a different place from the courts. And it's likely they would have drawn the line closer to the injury, that is, more stringently against plaintiff claims. So in a suicide case, a Massachusetts court is likelier than otherwise to find the suicide rule alive and well when the intentional violent act of taking one's own life intervenes between state actor and death.

Thus was the outcome in the Acton case. And fairly so. Whatever the social worker failed to do when the decedent teen was still in school, it strains credulity to assert an intact causal chain leading from her response to the girlfriend's alarm all the way to the boy's suicide on summer break six weeks later. It's plausible that the social worker's response was a cause, and that the suicide might have been averted in a counterfactual world in which the social worker reacted more aggressively. But the social worker's response looks like a small sail on the sea of complex causal forces that resulted in the tragedy of a suicide.

Accordingly, the court concluded that, legally, for the purpose of section 10(j), "[the boy's] suicide was the result of his own state of mind and not the failures of [the social worker]."

In its own text, section 10(j) enumerates some exceptions, but the court held that none applied. The plaintiff argued for the applicability of an exception when a state defendant makes "explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, ... to the direct victim or a member of his family or household." Regardless of whether the social worker's assurances to the decedent's girlfriend qualified as sufficiently specific, the girlfriend was not a member of the boy's family or household, the court observed.

The plaintiff argued also for the applicability of an exception "for negligent medical or other therapeutic treatment received by the patient [decedent] from [the state defendant]." Regardless whether the counseling relationship qualified the boy as a "patient" under this provision, the court opined that the plaintiff's theory comprised wholly a claim of failure to inform the parents, and not, as the plaintiff expressly alleged, a theory of negligent medical treatment that would qualify for the 10(j) exception.

To my mind, the court might have gotten it wrong on this latter score. In the final pages of the decision, the court dealt separately with the plaintiff's claim of negligent treatment. Briefly discussing the MIT and innkeeper cases, the court recognized that the plaintiff's argument for a duty relationship between social worker and student that would contravene the suicide rule "has some force." Then, summarily, the court declined to resolve the issue, finding the negligent treatment claim subsumed by the 10(j) analysis.

The court could have reached the same conclusion by finding an insufficient factual basis for the plaintiff's claim of negligent treatment. Or by blocking the negligent treatment claim with discretionary function immunity under section 10(b). Or the court could have allowed the plaintiff to attempt to develop the factual record to support the complaint on the negligence theory. It's likely the plaintiff could not and would have succumbed to a later defense motion for summary judgment.

In applying section 10(j), the court wrote that "the amended complaint does not allege that [the social worker] was negligent in ... 'treatment.'" Yet in discussing the negligence claim just two paragraphs later, the court wrote that the plaintiff "contends that '[the social worker's] negligence, carelessness and/or unskillful interactions with and/or failure to provide [the boy] with the degree of care of the average qualified practitioner ... were direct and proximate causes of ... death.'"

Then the court referred back to its 10(j) analysis to reject the latter contention. I have not read the pleadings or arguments in the case, so I might be missing something. The plaintiff's clumsy use of "and/or" legal-ese doesn't scream expert drafting. But in the court's opinion, the logic looks circular and iffy.

The case is Paradis v. Frost (Mass. App. Ct. Sept. 22, 2023). Justice Maureen E. Walsh wrote the unanimous opinion of the panel that also comprised Justices Blake and Hershfang.

Postscript. Regarding the death in this case and the family's decision to litigate in wrongful death: The family wrote on GoFundMe in 2018 that their life insurance would not cover their funerary costs, I suspect because the policy excluded coverage for suicide. The fundraising yielded $15,450 for the family.

The case raised awareness and spurred discussion of teen suicide and suicide prevention (e.g., Boston Globe (Dec. 16, 2018) (subscription), NPR Morning Edition (Dec. 15, 2019)). At the same time, sadly, the alarm raised by the decedent's girlfriend, then a high school sophomore, was informed already by the experience of four prior student deaths by suicide in the preceding two years at the same school, WGBH reported. 

Advice on teen suicide warning signs and prevention can be found at, inter alia, Johns Hopkins Medicine, Northwestern Medicine, and the American Foundation for Suicide Prevention.

Lawyers spotlight persecution of profession in Iran

Taymaz Valley via Flickr CC BY 2.0

Yesterday the International Law Section (ILS) of the American Bar Association (ABA) recognized the International Day of the Endangered Lawyer with a spotlight on Iran in a webinar, "Iranian Lawyers: Risking Their Licenses, Their Liberty, and Even Their Very Lives."

U.S. Court of International Trade Judge Delissa Anne Ridgway moderated a discussion with Margaret L. Satterthwaite, NYU law professor and U.N. Special Rapporteur on the Independence of Judges and Lawyers, and Stuart Russell, a Canadian lawyer and co-director of the International Association of People's Lawyers Monitoring Committee on Attacks on Lawyers, based in Bordeaux, France.

To suppress opposition to the ruling regime, especially since the 2009 "Green Movement," the speakers explained, the government of Iran has persecuted lawyers who dare to represent dissenters. Lawyers themselves have been imprisoned, and bar organizations have been disempowered in their regulatory oversight of the profession, Russell reported.

Judge Ridgway lauded a documentary, Nasrin (2020) (IMDb), which is available for $3 on multiple platforms. I'm adding it to my watch list (trailer below). Exemplary of Iranian lawyers' travails, Nasrin Sotoudeh, an activist and advocate for the rights of women and children in Iran and subject of the documentary, has been imprisoned multiple times, sentenced to lashes, and severely beaten. Voice of America reported Sotoudeh's most recent release from prison, on bail, in November 2023.

I note, DW also published a documentary piece on Sotoudeh, Protecting Human Rights in Iran (2023), available on YouTube.

The ABA ILS program was co-sponsored by the Middle East Committee, the International Human Rights Committee, and the Women's Interest Network. I am a member of the ABA ILS Legal Education and Specialist Certification Committee.

TORTZ volume 2 unpacks duty, causation, damages, introduces nuisance, defamation, privacy

Tortz volume 2 is now available for affordable purchase from Lulu.com and for free PDF download from SSRN.

Tortz volume 2 follows up volume 1 (Lulu, SSRN, The Savory Tort), published in 2023 and pending update this year. I am using Tortz volumes 1 and 2 with students in my American tort law classes in the United States and in Poland this academic year.

The two-volume Tortz textbook represents a survey study of American tort law suitable to American 1L students and foreign law students. In volume 1, the first eight chapters cover the fundamentals of the culpability spectrum from intentional torts to negligence to strict liability.

Volume 2 comprises chapters 9 to 15: (9) damages, (10) res ipsa loquitur, (11) multiple liabilities, (12) attenuated duty and causation, (13) affirmative duty, (14) nuisance and property torts, and (15) communication and media torts. 

Contemporary content in Tortz volume 2 includes exercises in pure several liability; treatment of opioid litigation in public nuisance law; recent criticism of New York Times v. Sullivan in defamation law; and exposure to common law developments in privacy law, such as the extension of fiduciary obligations to protect personal information.

Three final chapters will be added to Tortz volume 2 for a revised edition later in 2024: (16) interference and business torts, (17) government claims and liabilities, “constitutional tort,” and statutory tort, and (18) worker compensation and tort alternatives. Any teacher who would like to have copies of draft materials for these chapters in the spring is welcome to contact me.

Tortz is inspired by the teachings of Professor Marshall Shapo, a mentor to whom I am deeply indebted. Marshall passed away in November 2023.

My thanks to Professor Christopher Robinette, Southwestern Law School, who kindly noted the publication of Tortz volume 2 on TortsProf Blog even before I got to it here.

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).

Recklessness claim in fatal Ford rollover accident allows plaintiff to push past Ga. statute of repose

"Crash Overview Diagram" by defense expert Donald F. Tandy, Jr.
(no. 103 filed Mar. 15, 2022) in Cosper v. Ford Motor Co.
(N.D. Ga. filed Oct. 11, 2018).

The Georgia Supreme Court defined "recklessness" in an erudite November opinion that allowed a plaintiff to surmount the statute of repose with a product liability claim.

In federal court in Georgia, the underlying case involves a fatal Ford Explorer rollover accident on Christmas Day in 2015. The plaintiff sued Ford Motor Co. in product liability over the integrity of the vehicle roof. Arising more than 10 years after the vehicle's manufacture, the claim seems to run afoul of the Georgia statute of repose.

But the statute of repose has an exception for "conduct which manifests a willful, reckless, or wanton disregard for life or property." The plaintiff aimed to surmount the statute of repose by accusing Ford of recklessness. The federal court certified the case to the Georgia Supreme Court to explain what recklessness means in the statute.

Recklessness is a useful but sometimes elusive concept in tort law. Insofar as culpability can be described on a spectrum running from intentional tort to negligence to no fault, recklessness is usually located at the midway point between intent, a subjective state of mind, and negligence, an objectively tested condition. One formulation of recklessness employs the canny "reason to know" analysis, which mixes subjective and objective testing of a defendant's state of mind by allowing reasonable inference (objective) from actually known facts (subjective).

But recklessness is a quirky creature of perspective. Recklessness looks different if you approach the concept from its intent side, when it describes a state of mind short of but indicative of pure subjective intent, or from its negligence side, when recklessness describes a kind of highly exaggerated carelessness.

This Janus-faced character causes recklessness to manifest in different legal tests amid different fact patterns. At a more theoretical level, the dichotomy reveals a deeper truth about culpability, which is that the useful metaphor of a spectrum disguises arguably qualitative differences between intentional wrongs and accidents.

The upshot is that recklessness can mean many things to many people. And the fact that the Georgia Supreme Court had never defined the term in the statute of repose was problematic for the federal court in the Ford Motor Co. case.

The Georgia statute pairs recklessness with the famous doublet, "willful" and "wanton." These terms are even more problematic. While they are well known to historical common law, they have not been uniformly incorporated into modern conceptions of culpability. Their ambiguity thus has been an occasional source of controversy in modern times, for example, in international disagreement over construction of the Warsaw Convention that governed air carrier liability in the 20th century.

The plaintiff in Ford Motor Co. did not allege "willful" misconduct, which smacks of intent and feels incompatible with a product liability claim. That's OK, the Georgia Supreme Court decided, because the disjunctive ("or") in the statute should be taken at face value. So recklessness can suffice by itself.

In a review worth reading for legal linguaphiles, to define recklessness, the court reviewed a range of precedents and sources, including the Restatement of Torts. (The court cited the "Restatement (First) of Torts § 500"; section 500 appears in the Second Restatement.) In the end, the court settled on a definition that hewed to the Restatement:

[when] the actor intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable person to realize that the actor's conduct not only creates an unreasonable risk of harm to another's life or property but also involves a high degree of probability that substantial harm will result to the other's life or property.

The approach comprises definitional components that are common in recklessness formulations, even if the words and particulars sometimes vary: volitional action (not necessarily intent as to result), knowledge of predicate facts (from which one might deduce risk), unreasonable risk (not necessarily unreasonable conduct), elevated probability of harm, and elevated magnitude of harm. (Cf. my YouTube Study of Intent (2017).)

Significantly, this approach to recklessness is free of moral appraisal. Thus, modern recklessness often is synonymized with "actual malice" and distinguished from "common law malice." The older latter imports the notion of "evil," or at least "hatred." My torts textbook examines this distinction when it is salient in punitive damages, for which some states employ one standard, some employ the other, and some employ them both in the alternative.

In the Georgia case, if recklessness can be proved, the plaintiff will be able to work around the statute of repose. The proof won't come easily. But usually it is easier for a plaintiff to show that a corporate defendant was reckless than to show that it acted "willfully" or "evilly," descriptors more often associated with persons.

Justice Verda M. Colvin

The case is Ford Motor Co. v. Cosper (Ga. Sept. 19, 2023). Justice Verda M. Colvin wrote the opinion of the court.

In 2021, Justice Colvin became the first African-American woman appointed to Georgia's high court by a Republican governor. An Atlanta native, she studied government and religion at Sweet Briar College, graduating in 1987 (just a couple of years before I arrived at my alma mater in nearby Lexington, Va.), and law at the University of Georgia, graduating in 1990. In May 2023, Justice Colvin gave the commencement address at Sweet Briar. 

Justice Colvin told New Town Macon that "Jesus Christ and Martin Luther King Jr. inspired her since she was a child through their devotion to service." In 2016, Judge Colvin spoke to youth in the "Consider Consequences" program of the Bibb County, Ga., Sheriff's Office; a recording (below) of the powerful allocution went viral.

It's education and healthcare, stupid

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Experts are puzzled over American discontent while economic indicators ride high. Yet they consistently fail to recognize what seems to me an obvious factor: the exorbitant cost of education and healthcare.

My feeds have been awash in stories and analyses of the disconnect between economic indicators of a prosperous America and people's simultaneous sourness on their economic prospects. The Atlantic tackles the problem perennially (e.g., Apr. 2022, Oct. 2023, Nov. 2023, Dec. 2023, Jan. 2024). Yesterday I caught up on my podcast backlog with Paddy Hirsch and Darian Woods enumerating five explanations for The Indicator earlier this month.

To be fair, the explanations are multiple, complicated, and interrelated. Almost every writer fairly points to inflation as a capstone problem. As Hirsch put it, Americans care less about mathematical formulae than about strain on the wallet at the gas pump and the grocery checkout. 

Moreover, The Indicator helpfully told me, data show that even if wages are keeping up with inflation on average across the economy, that's not the experience of many, if not most, Americans. Wages in volatile markets, especially for young people who have the economic flexibility to change jobs more readily, are outpacing inflation times over. But wages in career tracks, for middle-aged and older Americans tied to mortgages and other responsibilities, are failing to keep pace with inflation. So yes, we're rightly frustrated when a smiling employer gleefully announces a wage hike, yet we somehow have less money in our pockets at month's end.

At the same time, I have been frustrated repeatedly by writers' and analysts' failure to recognize an elephant in the room: the exorbitant cost of education and healthcare in America. The problem is amplified by inflation, but it's not a byproduct of inflation, and it won't be remedied by any number of interest-rate hikes.

Let me interject that there is an overarching problem as well that analysts often fail to recognize, which is simply that economic indicators are not interchangeable with human happiness. American culture habituates us to equate, mistakenly, economic prosperity with personal joy. Yet ample social science data gathered around the world show that wealth, whether societal or personal, does not necessarily correlate with happiness; much less is it causal. And see Matthew 6:19-24. A productive society by economic measures is not necessarily a society that produces art, that affords opportunity for recreation and leisure, or that values freedom for individual and interpersonal fulfillment.

Even by economic measures, though, healthcare and education are anomalous sectors. As a matter of morality, healthcare cannot be left to the free market—and I say this as an economic conservative—because the essentiality of healthcare for survival makes any bargain inherently unfair, any playing field invariably unlevel.

Similarly, education, at least in part, also must operate extrinsically to the free market for goods and services. Education does not guarantee upward economic mobility. But upward economic mobility is profoundly unlikely without education. And a market has no incentives to provide educational opportunity as long as labor is abundant.

Consider: A society based on slave labor might look marvelous by economic measures: full "employment," efficient resource distribution, pyramid-building productive capacity. Yet there is zero potential for laborers' upward social or economic mobility. In America, we purport to abhor servitude and to prize socioeconomic potential as "the American dream."

Both healthcare and education are therefore imperative in our society; their absence, or unattainability, is hard felt. But the free market will provide neither in adequate supply. Healthcare will be unattainable for those unable to pay the going price. Education is a byproduct of a healthy economy only insofar as it is necessary to ongoing productivity. The economy won't provide for retraining as long as labor is abundant, and upward mobility is not even on the board.

This isn't an abstract problem. This is what Americans feel on the ground.

I went to the ER in the fall.  I was in the hospital for maybe seven hours, out-patient.  I am lucky to have insurance that covered most of the roughly $15,000 cost.  I am blessed with employment that allows me to cover without much strain the roughly 10% of the cost allotted to me. 

But for many Americans, in many instances, medical treatment is unaffordable or entails bankrupting medical debt. People choose to live with pain—not economic pain, but real pain, sometimes a toothache, sometimes terminal illness—because they can't afford healthcare. 

Why would we expect that people suffering with pain and ailments, unable to see doctors, would ever report feeling good about the economy?

My wife and I make decent money (for now). By some measures, our U.S. household ranks as high as the 93rd percentile by income. By tightening our belts for a few years, we mostly managed to put our one child, after public K12, through a bachelor's program. Still, she had to borrow about $50,000, much of it at 6.5%, to close the gap for four-year university. And we co-signed on those loans even while we were still, in our 40s, paying off our own higher-education debt. Neither our education debt nor the mortgage on our modest home discounted our income on the FAFSA that blithely informed us of our ample capacity to pay for college. And again, we're lucky and blessed. We could make it work.

For too many Americans, the cost of higher education is crippling or prohibitive. To my point, the economy doesn't care about education other than an efficient means to an end. The only relevant question is whether the hamster wheel is still turning. There's no need for people to better themselves, their lot. 

Why would we expect that people without hope for a better life for themselves or their children would ever report feeling good about the economy?

Education costs and debts work an enormous strain, financially and emotionally, on Americans. Healthcare costs, sometimes risks, sometimes debts, work an enormous strain, financially, emotionally, and physically, wearing us down, day after day.

And here's what really gets my goat: Things don't have to be this way. My cousins in Canada and Europe don't suffer under these strains. They have affordable healthcare and education. They are free to move about their lives.

My cousins pay more in overall tax burden—but not much more, and maybe less if I factor in my lifetime healthcare and education costs, as well as property taxes. And don't get into it with me over quality. As to education, I teach in Europe, and my students there are, to be frank and on average, better equipped as liberal arts undergrads than my American 1Ls, not for lack of work ethic. As to healthcare, I haven't met my primary care doctor since three primary care doctors ago. The reason I went in the fall to the ER, where I waited for five hours to be seen, was that neither my primary care network nor any area urgent care had a single opening. My "best healthcare plan anywhere in the world" must have been mislaid with my jetpack.

Can you imagine an America in which a university degree or a hospital admission would not have to be followed by years or decades of monthly payments? in which people could retrain for better jobs without incurring crippling debt? in which people could change jobs without sweating the burden of massive debts or the risk of losing access to life-saving medicine for themselves or their families?

That would be a free market. A level playing field. 

That's not what American corporations want. So that's not what Congress wants.

It's ludicrous (ludacris?) to expect that people—consumers—would radiate joy about a rosy economy as long as they're shackled, compelled to run the hamster wheels of a market that's not really free.

Police reform shines light on disciplinary records

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A favorable reform to follow the police protest movement of recent years, stemming in particular from the killing of George Floyd, has been transparency around police disciplinary dispositions.

There is room for disagreement over what police reform should look like. I'm of the opinion that it costs society more to have police managing economic and social problems, such as homelessness and mental health, than it would cost to tackle those problems directly with appropriately trained personnel. I wouldn't "defund" police per se, but I would allocate public resources in efficient proportion to the problems they're supposed to remedy. We might not need as much prison infrastructure if we spent smarter on education, job training, and recreation.

Regardless of where one comes down on such questions, there is no down-side to transparency around police discipline. Police unions have cried privacy, a legitimate interest, especially in the early stages of allegation and investigation. But when official disciplinary action results, privacy should yield to accountability. 

Freedom-of-information (FOI) law is well experienced at balancing personnel-record access with personal-privacy exemption. Multistate FOI norms establish the flexible principle that a public official's power and authority presses down on the access side. Because police have state power to deprive persons of liberty and even life, privacy must yield to access more readily than it might for other public employees.

In September 2023, Stateline, citing the National Conference on State Legislatures, reported that "[b]etween May 2020 and April 2023, lawmakers in nearly every state and [D.C.] introduced almost 500 bills addressing police investigations and discipline, including providing access to disciplinary records." Sixty-five enacted bills then included transparency measures in California, Colorado, Delaware, Illinois, Maryland, Massachusetts, and New York.

The Massachusetts effort has come to fruition in online publication of a remarkable data set. Legislation in 2020 created the Massachusetts Peace Officer Standards and Training (POST) Commission. On the POST Commission website, one can download a database of 4,570 law enforcement disciplinary dispositions going back 30 years. There is a form to request correction of errors. The database, at the time of this writing last updated December 22, 2023, can be downloaded in a table by officer last name or by law enforcement agency, or in a CSV file of raw data.

The data are compelling. There are plenty of minor matters that can be taken at face value. For example, one Springfield police officer was ordered to "Retraining" for "Improper firearm usage or storage." I don't see that as impugning the officer, rather as an appropriately modest corrective and a positive for Springfield police. Many dispositions similarly suggest a minor matter and proportional response, for example, "Written Warning or Letter of Counseling" for "conduct unbecoming"/"Neglect of Duty."

Then there are serious matters. The data indicate termination of a police officer after multiple incidents in 2021, including "DRINKING ON DUTY, PRESCRIPTION PILL ABUSE, AND MARIJUANA USE," as well as "POSING IN A HITLER SALUTE." Again, it's a credit to the police department involved that the officer is no longer employed there. Imagine if such disciplinary matters were secreted in the interest of personal privacy, and there were not a terminal disposition.

The future of the POST Commission is to be determined. It's being buffeted by forces in both directions. Apropos of my observation above, transparency is not a cure-all and does not remedy the problem of police being charged with responsibility for social issues beyond the purview of criminal justice.

Lisa Thurau of the Cambridge-based Strategies for Youth told GBH in May 2023 that clarity is still needed around the role and authority of police in interacting with students in schools. Correspondingly, she worried whether the POST Commission, whose membership includes a chaplain and a social worker, is adequately funded to fulfill its broad mandate, which includes police training on deescalation.

Pushing the other way, the POST Commission was sued in 2022, GBH reported, by police unions and associations that alleged, ironically, secret rule-making in violation of state open meetings law. Certainly I agree that the commission should model compliance in rule-making. But I suspect that the union strategy is simply obstruction: strain commission resources and impede accountability however possible. Curious that the political left supports both police unions and police protestors.

WNYC has online a superb 50-state survey of police-disciplinary-record access law, classifying the states as "confidential," "limited," or "public." Massachusetts is among 15 states in the "limited" category. My home state of Rhode Island and my bar jurisdictions of Maryland and D.C. are among the 24 jurisdictions in the "confidential" category.

"Sunshine State" Florida is among 12 states in the "public" category. In a lawsuit by the Tallahassee Police Benevolent Association, the Florida Supreme Court ruled unanimously in November 2023 that Marsy's Law, a privacy law enacted to protect crime victims, does not shield the identity of police officers in misconduct matters. (E.g., Tallahassee Democrat.)