Anti-SLAPP protects doctor for reporting patient-doctor's opioid use to physician treatment authority

Cindy Shebley CC BY 2.0 via Flickr

A doctor who prescribed opioids for a fellow doctor and ultimately reported the patient-doctor for possible impairment by addiction was protected by anti-SLAPP law when the patient-doctor sued, the Massachusetts Appeals Court held in June.

The two doctors' relationships started when the defendant, a primary care physician, prescribed the plaintiff, an ophthalmologist, Percocet, which contains oxycodone, to manage migraines. In time, the defendant became concerned about the plaintiff's ongoing use of opioids. After unsatisfactory back-and-forth with the plaintiff, the defendant reported his concerns to Physician Health Services (PHS), a nonprofit corporation created by the Massachusetts Medical Society, which in turn is a creation of the legislature. The plaintiff ultimately accepted addiction counseling upon PHS recommendation.

The plaintiff sued the defendant for negligence, tortious interference, civil rights violation, and invasion of privacy. The defendant invoked the Massachusetts anti-SLAPP law, and the court dismissed. The Appeals Court affirmed.

I'm on record as an anti-SLAPP skeptic, while acknowledging that anti-SLAPP laws sometimes facilitate a sound outcome. To my satisfaction, the Massachusetts law is narrow in some key regards, including the requirement that a defendant's conduct must be substantially related to a petitioning to governmental officials. In June 2021, I wrote about the failure of an anti-SLAPP defense when the Appeals Court opined that defendants' alleged extortive expression was not sufficiently closely related to the zoning disposition with which the defendant was alleged to have sought to interfere.

In the instant case, the Appeals Court had little trouble determining that the defendant's reports to PHS were substantially related to government petitioning. Physician peer reporting is required by law upon reasonable belief in a violation of regulation. And it was understood, the court reasoned, that reporting to PHS, which specializes in treatment for drug and alcohol impairment, was an intermediate step that would result in reporting to the state licensing authority if the matter could not be resolved.

"It follows, therefore, that the defendant's communication to PHS regarding his concern about the plaintiff is protected," the court wrote, "unless the plaintiff can show either that the defendant failed to act in good faith or that he had no reasonable belief that the communication furthered the purpose of PHS."

The case is Berk v. Kronlund, No. 22-P-4 (Mass. App. Ct. June 14, 2023) (FindLaw). Justice Kenneth V. Desmond Jr. wrote the opinion of the unanimous panel that also comprised Justices Wolohojian and Blake.

Acuerdo en inglés para arbitrar vincula al firmante de habla hispana aunque no lo entendió, tribunal concluye

(English translation by Google: Agreement in English to arbitrate binds Spanish-speaking signatory even though he did not understand it, court rules.)

Un hombre de habla hispana se comprometió a un acuerdo de arbitraje en inglés incluso si no lo entendía, dictaminó ayer el Tribunal de Apelaciones de Massachusetts.

El día de su cirugía para corregir la visión con Lasik, el demandante Lopez firmó cuatro formularios en inglés, incluido el consentimiento y el acuerdo para arbitrar cualquier disputa. Más tarde, insatisfecho con la cirugía, Lopez presentó una demanda, alegando negligencia médica.

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Revocando la decisión del Tribunal Superior, el Tribunal de Apelaciones ordenó la desestimación tras la moción del demandado de obligar al arbitraje.

Las cláusulas de arbitraje obligatorio han sido un punto de dolor para los defensores de consumidores durante décadas. Son una parte del problema de los términos de servicio densos y no negociables que son omnipresentes en las transacciones de consumo contemporáneas, tema de libros como Wrap Contracts (2013), por Nancy Kim, y Boilerplate (2012), por Margaret Jane Radin.

Los defensores de consumidores como Ralph Nader lamentan la eliminación masiva de disputas del sistema de justicia civil, un impacto en la Séptima Enmienda y una propagación democráticamente problemática de la justicia secreta. Y detrás de las puertas cerradas del arbitraje, las probabilidades favorecen a los negocios de manera tan abrumadora que alimentan dudas sobre la justicia. Los árbitros que no dictaminan la forma en que los demandados recurrentes corren el riesgo de quedarse sin trabajo.

A pesar de estos potentes motivos de preocupación, los legisladores y los tribunales se han puesto del lado de las empresas para proteger y hacer cumplir el arbitraje obligatorio, supuestamente para proteger al comercio de los intolerables costos de transacción de los litigios.

En el ley común de daños, el consentimiento y la asunción expresa del riesgo niegan la responsabilidad, porque se debe permitir que dos personas establezcan los términos de su propia relación. Podrán apartarse del contrato social siempre que los términos que fijen no violen el orden público; es posible que, por ejemplo, no acepten cometer una herida. En teoría, ambas defensas se basan en el acuerdo voluntario y consciente del demandante.

El demandante que firma un contrato sin leerlo cuestiona esta teoría. La firma evidencia el acuerdo subjetivo del demandante. De hecho, no existe ningún acuerdo subjetivo; el conocimiento y la comprensión de los términos acordados no se pueden encontrar en la mente del demandante.

La regla general es que la firma vincula de todos modos. Y en gran medida, esta regla es necesaria, incluso si significa que las personas están obligadas a cumplir términos que no habrían aceptado si los hubieran entendido. El comercio depende de la fiabilidad de los contratos. Si una parte del contrato  siempre pudiera impugnar la aplicabilidad basándose en testimonios interesados de malentendidos, entonces el litigio sería tan gravoso que paralizaría los negocios.

Un malentendido subjetivo puede causar un incumplimiento del contrato en el derecho de daños si mitiga la evidencia de la aquiescencia del demandante. Así, por ejemplo, las empresas a veces buscan establecer la asunción expresa del riesgo por parte de los clientes con un cartel que diga que "cualquiera que proceda más allá de este punto asume el riesgo de sufrir daños por negligencia." (A veces, tales carteles son exigibles por ley.) En tal caso, el demandante puede al menos argumentar que no vio el cartel, o, mejor, no lo entendió debido al lenguaje.

Desafortunadamente para Lopez, no conocía esos datos. El tribunal relató: "Lopez testificó que había vivido en Massachusetts durante doce años en el momento de su cirugía y había aprendido 'un poco' de inglés 'en las calles.'" (Las opiniones de los tribunales y el testimonio citado están en inglés; todas las traducciones aquí son mias.) El Tribunal Superior había determinado que "Lopez no tenía un comprensión suficiente del inglés para permitirle leer el Acuerdo de Arbitraje." Al mismo tiempo, la oficina de cirugía tenía un traductor de español disponible; Lopez no pidió ayuda. El hecho de su firma era inequívoco.

El tribunal razonó:

"Los contratos escritos tienen como objetivo preservar los términos exactos de las obligaciones asumidas, de modo que no estén sujetos a la posibilidad de una falta de recuerdo o una declaración errónea intencionada." [Grace v. Adams (Mass. 1868).] Esta regla de larga data 'se basa en la necesidad fundamental de seguridad en las transacciones comerciales." [Williston on Contracts (4a ed. 2022).] Estos principios legales subrayan que existe una "solemnidad [para] firmar físicamente un contrato escrito" que hace que una firma sea algo más que un simple adorno elegante en un documento. [Kauders v. Uber Techs., Inc. (Mass. 2021).]

Lopez testificó que no habría firmado el acuerdo de arbitraje si hubiera podido entenderlo. El mayor problema político para la protección del consumidor en Estados Unidos es que esta afirmación probablemente sea falsa, sin el beneficio de la retrospectiva. Es prácticamente imposible vivir en el mundo moderno—tarjetas de crédito, teléfonos móviles, sitios web, servicios públicos, viajes—sin aceptar un arbitraje obligatorio todos los días.

El caso es Lopez Rivera v. Stetson, No. 22-P-904 (Mass. App. Ct. Aug. 31, 2023). El juez Christopher P. Hodgens redactó la opinión del panel unánime, en el que también estaban los jueces Wolohojian y Shin.

Mass., EU courts wrestle with requisite harm in defamation, data protection cases

The vexing problem of proof of damages in defamation and privacy has turned up recently in the Massachusetts Court of Appeals and the Court of Justice of the European Union. Meanwhile, the Massachusetts Gaming Commission borrowed European privacy principles for new data security rules.

Tiny turkey. Stéphanie Kilgast via Flickr CC BY-NC-ND 2.0

'Stolen' Turkey Money in Massachusetts

The Appeals Court in April vacated dismissal in a business dispute over turkeys. Nonprofit and business collaborators fell out over spending on variably sized turkeys for a charitable food event. The defendant wrote on social media that the plaintiff "stole" money intended for charitable purposes.

The complaint, which was filed by a Massachusetts lawyer, was messy—narrative in excess, numbering in disarray, and allegations jumbled between liability theories—so it was difficult for the trial court to parse the pleadings. With the aid of oral argument on appeal, the court teased out the defamation count and determined that it had been dismissed for want of pleaded loss.

However, Massachusetts is among jurisdictions that continue to recognize the historical doctrines of libel per se and slander per se. Those doctrines allow some pleadings to proceed without allegation of loss, and for good reason. Reputational harm is exceedingly difficult to prove, even when it seems self-evident. After all, whom should a plaintiff call to testify to prove her damaged reputation, people who now think an awful falsity about her? Witnesses will be less than eager. Even in case of a business plaintiff that suffers economic loss, it can be exceedingly difficult to tie specific losses to specific assertions of falsity.

The historical approach allows a plaintiff to demand presumed damages. That's a messy solution, because the jury is entrusted with broad discretion to assess the damages. On the plaintiff side, perhaps that's OK; we just juries to measure intangible losses all the time, as in the case of general damages for injuries, or pain and suffering. The defense bar and allied tort reformers have rebelled against presumed damages, though, arguing that they afford juries a blank check. That unpredictability makes it difficult for defendants and insurers to assess their liability exposure. Defense-oriented tort reformers have been successful in extinguishing per se defamation actions in many U.S. states.

Massachusetts splits the difference, I think in a healthy way. Per se actions are preserved, but the plaintiff is entitled to nominal damages, plus proved actual losses, but not presumed damages. I mentioned recently that the E. Jean Carroll case has spurred overblown commentary about the potential of defamation law to redress our misinformation problem. The unavailability of per se actions in many states is one reason that defamation is not up to the job. A defamation action for nominal damages helps, though, coming about as close as U.S. jurisdictional doctrine allows to a declaration of truth—which is what defamation plaintiffs usually most want.

Allegation of a crime, such as theft or misappropriation of charitable funds, fits the class of cases that qualify for per se doctrine, whether libel or slander. There is some room debate about whether social media better fits the historical mold of libel or slander, but that's immaterial here. The allegation of "stolen" money fit the bill.

The Appeals Court thus vacated dismissal and remanded the claim for defamation and related statutory tort. The court clerk entered the Memorandum and Order for Judges Mary Thomas Sullivan, Peter Sacks, and Joseph M. Ditkoff in Depena v. Valdez, No. 22-P-659 (Mass. App. Ct. Apr. 28, 2023).

Austrian post box.
High Contrast via Wikimedia Commons CC BY 3.0 DE

Non-Consensual Political Analysis in Austria

The Court of Justice of the European Union (CJEU) also recently tussled with a problem of proof of damages. The court held early in May that a claimant under the EU General Data Protection Regulation (GDPR) must claim harm for a personal data processing violation, but need not meet any threshold of seriousness.

The court's press release summarized the facts in the case:

From 2017, Österreichische Post collected information on the political affinities of the Austrian population. Using an algorithm, it defined "target group addresses" according to socio-demographic criteria. The data thus collected enabled Österreichische Post to establish that a given citizen had a high degree of affinity with a certain Austrian political party. However, that data processed were not communicated to third parties.

The citizen in question, who had not consented to the processing of his personal data, claimed that he felt great upset, a loss of confidence and a feeling of exposure due to the fact that a particular affinity had been established between him and the party in question. It is in the context of compensation for the non-material damage which he claims to have suffered that he is seeking before the Austrian courts payment of the sum of €1,000.

The plaintiff endeavored to quantify his emotional upset, but in the absence of communication of the conclusions about the plaintiff to to any third party, the claim of harm was thin. Emotional suffering resulting from the mere processing of personal data in contravention of one's advance permissions seems minimal. Accordingly, the Austrian courts, following the example of neighboring Germany, were inclined to disallow the plaintiff's action for failure to demonstrate harm.

Harm has been a sticking point in privacy law in the United States, too. Privacy torts are a relatively modern development in common law, and they don't import the per se notion of historical defamation doctrine. Tort law balances culpability with harm to patrol the borders of social contract. Thus, intentional battery is actionable upon mere unwanted touching, while merely accidental infliction of harm requires some degree of significance of injury. Defamation law arguably defies that dynamic, especially in per se doctrine, in part for the reasons I explained above, and in part because, for much of human history, personal integrity has been as essential for survival as physical security.

Not having inherited the paradigm-defying dynamic, privacy law has posed a puzzle. Scholars disagree whether damages in privacy should follow the example of business torts, requiring at least economic loss; the example of emotional distress torts, requiring at some threshold of severity; or defamation per se torts, recognizing some sui generis harm in the disruption of personal integrity. As personal data protection has grown into its own human right independent of privacy, the problem has been amplified, because, exactly as in the Austrian case, a right against the non-consensual processing of data that are personal, but not intimately personal, is even more difficult to generalize and quantify.

The problem is not only a European one. In the United States, courts and scholars have disagreed over when claims in the burgeoning wave of state data protection laws, such as the Illinois Biometric Information Privacy Act, can satisfy the "case or controversy" constitutional requirement of jurisdiction. Failure to see a sui generis harm in privacy violations means, arguably, that there is no "case or controversy" over which courts, particularly federal courts, have competence.

The CJEU balked at Austrian courts' unwillingness to see any wrong upon a claim of only intangible loss. But the court agreed that the plaintiff must demonstrate harm. Hewing to the text of the GDPR, the court reasoned that a plaintiff must show a violation of the regulation, a resulting harm, and a causal connection between the two. Thus, harm is required, but there is no requirement that the harm meet some threshold of seriousness or economic measure.

The CJEU decision was touted in headlines as "clarifying" the law of damages under the GDPR, while the stories beneath the headlines tended to do anything but. Some writers said that the court raised the bar for GDPR claims, and others said the court lowered it. Confusion stems from the fact that the court's decision spawns subsequent many questions. Conventionally, the GDPR leaves the quantum of damages to national courts. So how must a claim of de minimis harm be measured on remand? Are nominal damages sufficient compensation, or must the data protection right be quantified?

Moreover, Sara Khalil, an attorney with Schönherr in Vienna, observed that the court left out a component of tort liability that national courts sometimes require: culpability. Is there a minimal fault standard associated with recovery for mere data processing? Because tort law ties together the elements of harm and fault, at least in some jurisdictions, the one question necessarily begets the other.

RW v. Österreichische Post AG, No. C-154/21 (May 4, 2023), was decided in the First Chamber of the CJEU.

Data Security in Gambling in Massachusetts

Policymakers and courts on both sides of the Atlantic are wrestling with the problems of contemporary personal data protection. And while the gap between the GDPR and patchwork state and federal regulation in the United States has stressed international relations and commerce, it's no wonder that we see convergence in systems trying to solve the same problems.

To wit, the Massachusetts Gaming Commission has employed recognizably European privacy principles in new data security rules. For Israeli law firm Herzog Fox & Neeman, attorneys Ariel Yosefi, Ido Manor, and Kevin David Gampel described the overlap. The commission adopted the regulations for emergency effect in December 2022; final rules were published in April.

The attorneys detailed the requirements of gambling operators:

• to establish and plainly disclose to players comprehensive data privacy policies, including measures regarding data collection, storage, processing, security, and disclosure, the latter including the specific identities of third-party recipients; 
• to guarantee player rights including access, correction, objection, withdrawal of consent, portability, and complaint;
• to eschew purely automated decision-making; and
  
• to implement physical, technical, and organization security practices.

The regulations are 205 CMR 138 and 205 CMR 248 (eff. Mar. 9, 2023, publ. Apr. 28, 2023).

Reversal in eldercare case highlights limits of qualified immunity, low injury threshold of intentional torts

Boston police officer assists an elderly pedestrian in 2014.
(Alex Klavens CC BY 2.0 via Flickr)

A dispute over elder care occasioned treatment of qualified immunity and a range of tort theories by the Massachusetts Appeals Court yesterday.

Gallagher v. South Shore Hospital arose from an apparently mismanaged effort to investigate and redress a report of elder abuse; the report proved unfounded. The plaintiff caretaker and elder man alleged that a police officer and state agent entered their home without sufficient suspicion or warrant and removed the man from the home, and that a hospital then held and tested the man for five days against her and his will.

Most of the court's opinion comprised blow-by-blow facts and the Fourth Amendment analysis. However, the court opined as well on a range of common law tort claims against the defendants: a police officer, a state-contracted elder service agent, and South Shore Hospital, Inc., for trespass, false imprisonment, and battery. The police officer defended on grounds of qualified immunity, inter alia.

In proceedings on various motions, two trial court judges awarded summary judgment to all defendants. The trial courts held the state actors protected by qualified immunity and the tort claims flawed.

In the estimation of the Appeals Court, the trial courts erred. The Appeals Court reversed and remanded as to all defendants, finding that live questions of fact precluded the summary judgments. In my estimation, the error on qualified immunity was informative, and the errors on tort theories were egregious.

In articulating the qualified immunity theory, the police defendant and eldercare agent pointed to a concurrence by Justice Kavanaugh in a 2020 U.S. Supreme Court case, Caniglia v. Strom, in which the Court held unanimously that a warrantless home entry and firearm seizure violated the Fourth Amendment. The Appeals Court explained:

[Officer] Pompeo argues that the facts at bar are similar to the example of an elder welfare check that Justice Kavanaugh described in his concurring opinion in Caniglia. In his example, "an elderly man is uncharacteristically absent from Sunday church services and repeatedly fails to answer his phone throughout the day and night. A concerned relative calls the police and asks the officers to perform a wellness check." Justice Kavanaugh stated that "[o]f course," in those circumstances, the officers may enter the home. Pompeo argues that she reasonably thought [elder plaintiff] LaPlante was injured or in imminent danger on June 25 because no one responded to the doorbell, knocks, or telephone call, and because [caretaker] Gallagher had left LaPlante in the car with strangers two days earlier.

The trial court found these facts to constitute the requisite exigency to enter the home. The Appeals Court disagreed.

The facts in this case are nothing like the hypothetical Justice Kavanaugh described. The implication of the hypothetical is that the elderly man lives alone. LaPlante did not. Moreover, Gallagher and LaPlante were not out of touch or nonresponsive, as was the elder in Justice Kavanaugh's hypothetical. Pompeo and another elder care worker had seen LaPlante two days earlier ... and his appearance was not a cause for concern....

Further, even if Pompeo could see LaPlante on the couch [through a window], neither he nor Gallagher had any obligation to answer the door or respond to the knock. "When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak." Kentucky v. King (U.S. 2011). A jury could find that Gallagher's lack of response to a knock on the door when she was not expecting visitors, and her absence from the room in which LaPlante was sleeping, did not give rise to a reasonable belief by Pompeo that LaPlante was unattended and suffering an emergency.

In an age in which the public is increasingly skeptical of police qualified immunity, the analysis is refreshing for taking seriously the doctrine's objective check on police perception. The likely failure of qualified immunity here leaves the state defendants vulnerable to the civil rights and tort claims on remand.

On the tort claims, the trial courts erred egregiously in dismissing for perceived want of injury. My first-semester, 1L Torts students can tell you that none of trespass, false imprisonment, nor battery requires physical injury, in the sense of impact. These intentional torts all balance a higher culpability state with a lower injury threshold. The lower threshold rests upon the theory that tort objectives such as preserving the peace and averting vigilantism justify recognition of insults to personal integrity or honor, even in the absence of physical or pecuniary loss. The notion is as old as the Roman law of iniuria.

As to trespass, the Appeals Court opined, quoting Massachusetts high court precedents, "It has long been the 'general rule' in this Commonwealth that 'possession of real estate is sufficient to enable the parties in possession to maintain an action against a stranger for interfering with that possession.' Proof of injury is not required; 'the action is founded merely on the possession.'"

Similarly, false imprisonment is accomplished by the plaintiff's awareness of confinement, and battery by an "offensive," that is, non-consensual nor justified-by-social-contract, touching of the plaintiff. In false imprisonment, "[i]t is enough if a person's personal liberty is restrained," the Appeals Court opined. And even if the elder man, not legally competent at the time, "was not aware of his confinement, Gallagher, his proxy, was." The court further relied on, while expressly not adopting, similar sentiments in the Second Restatement of Torts.

On each theory, the plaintiff is permitted to prove compensable loss above and beyond the minimal, prerequisite condition of injury. The caretaker alleged that the elder man in fact deteriorated physically while in hospital care, evidenced by an enlarged bedsore and diminished mobility. And the facts established to date indicate that the elder man had been subject to blood and urine testing in the hospital without the consent of the caretaker, his only proxy: a more-than-de-minimis, physical insult.

The same reasoning that unwound qualified immunity negated any defense of emergency on which the trial courts relied to dismiss the tort claims as a matter of law. And the hospital claimed no emergency over the elder man's five-day residency, such as would have justified failing to seek the caretaker's consent.

Finally, I was struck by a footnote the court dropped that speaks not only to the sad facts of this case, but to the broader context of our present, vigorous public policy discussion about the role of police in society and our infrastructure for social services, such as physical and mental healthcare. The court lamented:

[The eldercare agent who precipitated investigation and police involvement,] Bessette[,] and Gallagher were strangers to one another. Perhaps if Bessette had agreed to assist Gallagher by sitting with LaPlante for an hour while Gallagher did grocery shopping, she could have accomplished her investigatory purpose—allowing her to speak with LaPlante alone— and we might not have a case at all. Pasqualone v. Gately (Mass. 1996) (if officer had asked gun owner to voluntarily turn over his weapons after his license was revoked rather than demand them with considerable show of force, we might have a different case).

Recently, my wife and I read in the New York Times Magazine about the "viral nightmare" that exploded at Arizona State University from students' feud over the "multicultural safe space," fueled in no small part by the university's hyper-formalist response.

"If only someone had sat them down and made them listen to each other ... ," my wife sighed.

The instant case is Gallagher v. South Shore Hospital, Inc., No. 21-P-207 (Mass. App. Ct. Oct. 6, 2022) (temporary posting). Justice Vickie L. Henry wrote the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Sullivan.

Land dispute implicates 'second element of second path of second stage' of anti-SLAPP analysis, and we're all supposed to pretend the world's better for it

The Supreme Judicial Court studies its anti-SLAPP framework.
Argonne National Laboratory CC BY-NC-SA 2.0 via Flickr

Anti-SLAPP analysis in Massachusetts has become a Rube Goldberg machine disguising little more than an "I know it when I see it" test—

—so I contend, and I offer a Massachusetts Appeals Court case decided Tuesday as evidence.

I've written many times about anti-SLAPP, including my contention that the device can be used meritoriously, but is as often deployed to contrary ends, a sword for Goliath to strike down David; the legion dysfunctions of tort law that anti-SLAPP amplifies; and the possible better solution to be found in process torts and similar related mechanisms of accountability in law practice and procedure.

As Massachusetts courts have struggled to differentiate meritorious actions from SLAPPs under the Commonwealth's characteristically convoluted statute, I ultimately gave up trying to keep up with the ever more complicated thicket of rules and procedures leaching out from appellate decisions. So The Savory Tort should not be your first stop if you're trying to get a granular grip on the current landscape here.

Yet I can't help but write about this most recent appellate opinion. To my reading, the court poorly disguised its doubts about burgeoning and burdensome anti-SLAPP process, and whether time, money, and justice can all be saved at the same time.

The underlying dispute was a land matter. The plaintiff, seeking quiet title and adverse possession, was partially successful in a somewhat protracted litigation. Later, if before the expiry of a three-year limitations period, the respondent from the land action filed the present case, alleging abuse of process and intentional infliction of emotional distress by way of the earlier case. The land plaintiff from the earlier case, now the process and IIED defendant, raised the Massachusetts anti-SLAPP statute in defense.

First, I take the occurrence here of abuse of process as evidence in support of my position that anti-SLAPP is often really about process wrongs. Though here the anti-SLAPP movant is the one accused of abuse of process, it is typical in process tort cases for accusations of misconduct to fly simultaneously in both directions. Regardless of whether a jurisdiction recognizes abuse of process as a cause of action per se, courts have the power to manage process objections with a range of existing tools. I wrote about abuse of process appearing as a defensive mechanism, essentially a better tailored anti-SLAPP device, in South Africa. And my 1L torts class just yesterday read Lee Tat Development, a well reasoned 2018 opinion, included in my casebook, in which the Singapore Court of Appeals both rejected the abuse of process as a tort action and thoroughly discussed alternatives.

The Massachusetts Appeals court devoted a dense 10 pages to the blow by blow between the parties in the instant case. I won't retell it here. What's compelling is what the court had to say about its job in reviewing the Superior Court's anti-SLAPP ruling. Quoting the Supreme Judicial Court (SJC) in the Exxon case, which I reported recently, the Appeals Court's opening line oozes disrelish:

"This case involves yet another example of the 'ever-increasing complexity of the anti-SLAPP case law,' and the 'difficult and time consuming' resolution of special motions to dismiss pursuant to the 'anti-SLAPP' statute."

The partial quotes read like the court is feigning innocent pleading to the Supremes, "These are your words. We're just repeating them."

In analyzing the instant case according to the painstaking legal framework that the SJC has eked out of case experience, the Appeals Court located the present dispute in "the second element of the second path of the second stage."

What is the second element of the second path of the second stage, you ask?

Well, it's that the "judge must 'assess the "totality of the circumstances pertinent to the nonmoving party's asserted primary purpose in bringing its claim," and ... determine whether the nonmoving party's claim constitutes a SLAPP suit.'"

Isn't that the whole game?

I humbly propose that the good ship Commonsense has already sailed when we start talking about a second element of a second path of a second stage.

The Appeals Court divulged a tone somewhere between surprise and pride when it concluded "that the [Superior Court] judge followed the augmented framework sequentially, assiduously, and judiciously." Adjectives "comprehensive" and "thoughtful" followed.

Then, around page 27, the court hints at deeper problems.

The [landowners'] arguments demonstrate some of the difficulties associated with the application of the augmented framework. On one hand, the present action presents as a typical SLAPP case in that a supposedly wealthy developer sued abutters of supposedly modest means for petitioning in court to challenge a development project.... On the other hand, the [landowners] averred that far from being wealthy and powerful developers, they were a real estate broker and part-time bookkeeper attempting to develop a single-family residential property, while the [anti-SLAPP movants] were not the "individual citizens of modest means" contemplated by the anti-SLAPP law. The parties contested each other's motivations and representations. There is an inherent difficulty and, in some cases, prematurity in requiring a judge to make credibility determinations and discern a party's primary motivation predicated on affidavits, pleadings, and proffers, and not on a more complete evidentiary record scrutinized through cross-examination.

Some pages later, the court returned more directly but cautiously to the question of anti-SLAPP efficacy:

In this regard, as we have noted, the [landowners] insist that the present action cries out for a jury trial as the only appropriate way to resolve critical credibility disputes and determine the parties' true motivations. This argument has some force in that there are obvious difficulties in ... requiring judges to be fairly assured that the challenged claim is not a SLAPP suit, absent full discovery and testimony tested through cross-examination. Yet, the special motion to dismiss remedy exists, in large part, to avoid costly litigation and trial.... In any event, it is for the Supreme Judicial Court or the Legislature to address and resolve these concerns should they so choose.

At the tail end of a 34-page appellate opinion on meta-litigation over a small land matter and a lot of bad blood, one might wonder how much "costly litigation" was avoided.

The problem is with anti-SLAPP itself. The court is being asked to adjudge the motives of a litigant in the absence of evidence for the very purpose of avoiding the cost of collecting evidence.

We don't have a SLAPP problem. We have a transaction costs problem. Slapping a bandage on it with anti-SLAPP only invites perverse results. And the harder one tries to get right a call about evidence without the evidence, the more costly and perverse the results will be.

The case is Nyberg v. Wheltle, No. 21-P-791 (Mass. App. Ct. Sept. 13, 2022) (temporary court posting). Judge Eric Neyman wrote the opinion for a unanimous panel.

UPDATE, Sept. 16: Notwithstanding the ill wisdom of anti-SLAPP, the fad flourishes. Europe and the UK continue their headlong advances toward legislation, and a new bill in the U.S. Congress seeks to bring anti-SLAPP to U.S. federal courts. Enjoy, judges! I don't expect that the extinction of the defamation cause of action will do much to remedy our problems with misinformation and vitriolic divisiveness, but that seems to be the experiment we're determined to carry out.

Motel not liable for guest's suicide, court rules, despite family warning of risk, asking for room number

CC0 1.0 via Wikimedia Commons

The Massachusetts Appeals Court yesterday rejected Motel 6 liability for the suicide of a guest.

The September 1 decision broke no new ground, but reiterated the interrelationship of duty doctrines in negligence and Massachusetts repudiation of the common law "suicide rule."

Decedent Michael C. Bonafini took his own life in a room of the Motel 6 in Chicopee, Massachusetts, just north of Springfield in 2015. The mother and wife of the decedent blamed the motel because they went there in the night and morning trying to reach him, and motel staff would not reveal his room number. In the morning, the mother told the motel clerk that the decedent was at risk of suicide. The clerk called the room, but the decedent answered and immediately hung up. He was found dead when the motel manager entered the room at noon checkout time.

The case implicates potentially conflicting duty relationships in the common law of negligence. The reputed "suicide rule" of historical common law held that there can be no liability for a suicide. At the same time, common law recognizes an affirmative duty of an innkeeper to a guest, and the Massachusetts Supreme Judicial Court has recognized a duty to prevent suicide in some circumstances.

Historically, courts were loath to impose accident liability for an intentional act of self-harm on an earlier-in-time actor, especially when the intentional act was an attempt to commit suicide. The conclusion could be reached either by ruling that there was no duty to prevent another from intentional self-harm, which usually was criminalized, or by reasoning that the abrupt, violent, and intentional act of suicide dispositively interrupted the requisite chain of proximate causation.

It's arguable that there never was a "suicide rule," per se, rather a doctrine of duty and causation that was informed by social norms. Norms change. Suicide is less often today regarded as a matter for criminal justice, even if criminal laws remain on the books to justify the intervention of authorities. The trend in tort law is to employ the usual doctrines of duty and causation to analyze the facts of each case. That said, the "suicide rule" still holds sway, because the doctrines of duty and causation still disfavor the imposition of an affirmative duty to prevent injury and disfavor negligence liability for causal actors earlier in time than intentional injurers (this blog, Feb. 9, 2021).

On the question of duty, the instant case is complicated in two respects, one on the law and one on the facts. First, an innkeeper-guest relationship is one in which common law historically does impose an affirmative duty, on the innkeeper for the protection of the guest. Second, insofar as an affirmative duty might exist, it can be predicated on knowledge of risk, which the decedent's mother gave to the motel clerk.

The innkeeper-guest relationship did not get the plaintiffs to the finish line. The purpose of the common law duty is to oblige an innkeeper, like a landlord, to protect the guest from risks the innkeeper might know about, and the guest does not, in the vein of premises liability; or, at the extreme, risks of any nature that an innkeeper might be better positioned to mitigate than a guest can.

The court summarized past cases in which Massachusetts courts recognized an innkeeper-to-guest duty: failure to prevent stabbing by intruder for want of an adequate security system; failure to protect guest from fire set by arsonist; and failure to prevent battery by another guest. All three examples implicate an intermediate intentional, and tortious or criminal actor. But in the first two cases, the causal risks relate to the premises: a security system and fire response. There is no intermediately causal premises risk in the instant case.

The battery case seems more on point, and the court here did not make the distinction plain. But on the facts of that case, the plaintiff was stabbed at an event for which the defendant innkeeper had hired security guards. The case is best understood as a duty voluntarily undertaken by the defendant, and then executed negligently. In one count based on innkeeper-guest duty and one count based on ordinary negligence, the plaintiff complained that the security guards had negligently failed to restrain a drunken patron. The jury returned a generalized plaintiff's verdict that the court concluded was supported by the evidence.

So the problem for the plaintiff-representative in the instant case is that the decedent was not injured by the premises, and the defendant motel voluntarily undertook no duty to protect the decedent beyond the usual duties of an innkeeper. In fact, the innkeeper-guest duty arguably cuts against the plaintiff's position. Were a clerk to violate a guest's privacy by revealing the room number to a requester concealing ill intentions, the motel could be held liable for injury inflicted on the guest by the requester-intruder.

That said, the decedent's mother and wife were understandably frustrated with the clerk's stubbornness, under the circumstances, and their fears were vindicated tragically. The plaintiff's best strategy was to tie the alleged misconduct of the defendant to the responsibilities of an innkeeper, moving the causal focus away from the decedent's intentional act and changing the conversation from negligent failure to act to negligent action. In this vein, the plaintiff alleged not that the clerk necessarily should have revealed the room number, but that, instead of telephoning and giving up, the clerk should have summoned police to conduct a wellness check.

The court did not indulge the plaintiff's theory long enough to parse the details. But the basic problem even with the plaintiff's best gloss on the case is that the mother and wife could have called the police, too, and did not. Indeed, the court, fairly or not, faulted the family for being coy in characterizing the risk: "Indeed, all that is alleged is that [the] mother and wife informed motel employees that [decedent] was at risk of suicide, and asked for his room number so they could assist him. They did not tell the employees that [he] had stated an intention or plan to commit suicide or that he had recently attempted suicide." Perhaps the family feared negative repercussions of police intervention.

The plaintiff's case was buoyed modestly if insufficiently by Massachusetts high court holdings that a university may be held liable for a student's suicide. In 2018, the Supreme Judicial Court ruled that MIT did not owe a duty to a student who committed suicide on the facts of the case (this blog, May 7, 2018). But the court left the door open to a different analysis on different facts, and, the next year, the court allowed a case to go forward against Harvard (this blog, Sept. 30, 2019).

The Appeals Court distinguished the instant case from the Harvard case because the motel did not have enough information to ground an affirmative duty. In the Harvard case, the court looked to "stated plans or intentions to commit suicide." Here, again, the mother and daughter were coy as to the severity of the risk. And, the court added, there was no evidence that anything the decedent said or did suggested suicidal intentions to motel staff. Indeed, while a university knows a lot about its students, sometimes even affirmatively providing mental healthcare, innkeepers, the court opined, "usually are unlikely to know much—if anything—about their guests."

Incidentally, criminal liability for another person's suicide is a different problem. I mention it only because Massachusetts is the state in which Michelle Carter was convicted of involuntary manslaughter in the suicide death of Conrad Roy. A civil case was settled in 2019. Just a couple of weeks ago, I watched The Girl from Plainville (2022), a serial dramatization, and I don't recommend it. Maybe too soon to be reminded that the matter was a tragedy for everyone involved.

The instant case in the Appeals Court is Bonafini v. G6 Hospitality, LLC, No. 20-P-1409 (Sept. 1, 2022) (temporary court posting). Justice Gabrielle R. Wolohojian wrote the opinion of the unanimous panel.

To channel cases into ordinary negligence or medmal, look to implications for medmal insurance, court says

Paul Brennan via PublicDomainPictures.net

A Massachusetts court sometimes might have difficulty distinguishing between claims of ordinary negligence and claims of medical malpractice, only the latter of which must be filed first with a special tribunal. If a case implicates medmal insurance, it's more likely the latter, a court reasoned in May.

The Appeals Court had little difficulty, though, finding that a complaint over life-threatening allergic reaction to a drug administered in the emergency room sounds in medical malpractice. The plaintiff therefore erred by failing to file with the commonwealth medmal tribunal and post the necessary bond before proceeding in the Superior Court.

The court demarcated the boundary between ordinary negligence and medmal claims with reference to the legislative purpose in creating the tribunal: "to guarantee the continued availability of medical malpractice insurance." A court may be guided also by factors derived from case law: "(1) whether medical or professional judgment or competence was exercised, ...  (2) whether the claim is 'treatment-related,' even if not a traditional malpractice claim, ... and (3) whether 'the same set of facts supports both' the medical malpractice and allegedly non-medical claims...."

The instant plaintiff's "claims centered on her arriving at the emergency room suffering from an asthma attack, and the hospital's failure to provide a proper medication to her, which resulted in a severe allergic reaction. More specifically, the hospital was alleged to have deviated from the 'standard of care' by administering a medication containing lactose to [plaintiff,] who had a lactose allergy known to the hospital." The implication of medical judgment plainly positioned the case in medmal.

The case is Lane v. Winchester Hospital, No. 21-P-476 (Mass. App. Ct. May 17, 2022). Justice William J. Meade wrote the opinion of the unanimous panel.

Chair collapse provides textbook 'res ipsa' facts

plastic chair by Chris CC BY-NC-SA 2.0 via Flickr

A textbook res ipsa loquitur case is headed back to the trial court since the Massachusetts Appeals Court in March reversed dismissal.

Res ipsa loquitur is a beautiful doctrine for all kinds of reasons. I like that it's a mouthful of high-dollar words, because that keeps lawyers' hourly rates high and justifies the high cost of law school, translating into more money for professors like me. It's also fun to teach, because of its odd position at the intersection of fundamental tort elements—is it a rule of causation? duty? breach?; its location in negligence law while bearing a striking resemblance to strict liability; and its double-life in doctrines of tort and evidence law render it theoretically instructive.

At the same time, res ipsa is a straightforward and commonsense rule, and this case before the Appeals Court demonstrates its utility. "The plaintiff ... was having lunch on the outdoor deck of Sundancers restaurant in Dennis when his plastic chair collapsed beneath him," the court recounted the facts. The trial court dismissed for want of evidence of negligence by the defendant restaurant owners.

Res ipsa says simply, plastic chairs fairly may be depended on not to collapse. So when they do, it might be someone's fault. And of everyone who might be at fault, it's not the plaintiff's fault. So even if the plaintiff can't show by evidence the precise mechanism of the accident, the plaintiff still deserves a chance to persuade a jury to infer the defendant's responsibility. 

You can find my more formal discussion of the rule in the no-longer-updated Straightforward Torts, to be incorporated into Tortz: A Study of American Tort Law in the coming year.

My 2006 torts casebook with Professor Marshall Shapo uses a case with a similar fact pattern to teach res ipsa loquitur. In O'Connor v. Chandris Lines, Inc. (D. Mass. 1983), the plaintiff was injured when the bunk-beds in which she slept on a cruise ship collapsed. Like Step Brothers (2008) if someone else had put the beds together, and not as funny.

The plaintiff from Sundancers sued years later, if within the statutory limitations period, so both he and the restaurant struggled to locate relevant evidence. There might yet be insufficient implication of negligence on the part of the restaurant to persuade the jury to make the res ipsa inference. But plaintiff deserves better than summary dismissal, the court decided.

Because the record presents a number of material, disputed factual issues—including whether Sundancers provided the plaintiff with a defective and unsafe chair, whether the defect could have been detected with reasonable inspection, whether reasonable inspection was made, and whether factors other than the defendants' negligence more likely caused the accident—summary judgment should not have entered. Were this case to go to trial on the record before us, the jury would be permitted, but not required, to infer that Sundancers was negligent under the principles of res ipsa loquitur.

The case is Kennedy v. Abramson, No. 21-P-224 (Mass. App. Ct. Mar. 17, 2022). Justice Gregory I. Massing wrote the opinion of the unanimous panel.

After dog bites postman, $375k jury award fits between floor and ceiling of high-low settlement agreement

Pxhere CC0

In a dog-bites-postman case in Massachusetts, the Appeals Court in late October held that the parties' "high-low" settlement agreement was a "contract like any other" and did not bar the defendants' appeal.

The plaintiff-postman in the case was covering an unfamiliar route when he was bit in the wrist and thigh by German shepherd-golden retriever mix "Chewbacca." At trial, the jury awarded the plaintiff $375,000 in damages. The defendants asked for a new trial, arguing that the jury was tainted by improper admission of information about the plaintiff's federal worker compensation benefits, in violation of the collateral source rule.

Before the jury verdict, on the last day of trial, the parties had struck a handwritten "high-low" settlement agreement.  They set a floor recovery of $150,000, if the jury verdict were anything less, and a ceiling of $1,000,000, if the jury verdict were anything more.

The plaintiff argued that the settlement agreement precluded appeal.  But it didn't say that.  Holding that the settlement agreement was to be construed as a "contract like any other," the Appeals Court found no language convincingly demonstrating defendants' waiver of appeals.  At the same time, the court held that the evidentiary admission in violation of the collateral source rule was harmless error, affirming the denial of new trial.

Regarding the high-low agreement, the court found "little law in Massachusetts."  More than 20 years ago, two New York attorneys described the agreements as "[a]n often underutilized and misunderstood litigation technique." At NYU in 2014, a research fellow examined the agreements' potential and limits in New York, Maryland, and Virginia; see also the ABA Journal in 2005.  An Illinois attorney wrote favorably about the "misunderstood" agreements in 2019, after a medmal plaintiff-baby's verdict was halved by a high-low from $101 million.  Virginia attorneys advised on drafting the agreements in 2007.

In a harder scholarly vein, research published in The Journal of Law & Economics in 2014 reported empirical research on high-low conditions and posited optimal conditions for their appearance.  Published soon thereafter, a Michigan law student argued that high-low agreements should be disclosed to juries.

The Massachusetts case is David v. Kelly, No. 20-P-706 (Mass. App. Ct. Oct. 25, 2021). Justice Mary Thomas Sullivan wrote the opinion of the court, which Justice Kenneth V. Desmond Jr. joined.  Justice Sabita Singh dissented as to the court's conclusion that the error on the collateral source rule was harmless rather than prejudicial.

Incarcerated persons have access to information in Massachusetts law, court confirms, but not in all states

Image by Ichigo121212 from Pixabay

A man imprisoned for murder has a right of access to public records no less than anyone else, the Massachusetts Appeals Court held in the summer.

Nine years ago, Adam Bradley was co-perpetrator of a home invasion in Billerica, Massachusetts, northwest of Boston, in which 22-year-old resident Quintin Koehler was shot and killed.  The crime was tied to the Bloods gang, according to The Boston Globe.  In 2017, at age 32, Bradley was convicted of first-degree murder and sentenced to a life term.

Lately, Bradley has used the Massachusetts Public Records Law (PRL, or FOIA) to investigate his conviction by requesting police records.  He alleged in a lawsuit that the State Police records access officer (RAO) failed to respond to multiple PRL requests.

In court, the RAO resisted production under the PRL on two grounds, (1) the ongoing investigation exemption of the PRL and (2) the parallel availability of records to Bradley in criminal discovery.

The Appeals Court soundly rejected both state arguments.  On the first ground, RAO overreached by declaring the entirety of the case file within the investigation exemption.  On the second ground, the PRL operates independently of parallel access in criminal process, the court held.  The RAO anyway owed Bradley a response asserting grounds for non-production.  The state public record supervisor twice ordered the RAO to respond.

The court holding accords with state freedom-of-information norms; the most noteworthy point of the case is that an appeal was required.  As in other states' FOIA exemptions for ongoing investigations, the Massachusetts PRL requires record-by-record review, redaction for partial production when possible, and, if necessary, in camera inspection by the trial court in a legal challenge.

The problem of parallel access is somewhat more vexing, though still should not have confounded the RAO.  Some states expressly exclude active litigants from FOIA uses that might subvert judicial procedure.  But such exclusions, which are far from universal, typically do not bar post-conviction access in criminal matters, even with ongoing appeals.  The RAO in the instant case relied on regulatory language that faintly suggested discovery exclusivity, and the court properly dispelled that theory.

Parallel access questions are thornier when there are state regulatory mechanisms in play that arguably supersede state FOIA as a matter of legislative intent, especially in the area of business regulation.  For example, a statutory framework for state contracting might regulate disclosure and non-disclosure of records maintained by the contractor or submitted to the state, arguably superseding FOIA access.  Even then, the rule of statutory construction that FOIA access is to be construed liberally and FOIA exemptions to be construed narrowly usually makes FOIA a trump card.  Bradley's case presented no such wrinkle.

The case is noteworthy also for a rule that is not at play.  Massachusetts is not one of the states that has limited or simply disallowed FOIA use by prisoners.

The Arkansas Department of Corrections (DOC) lobbied successfully for an amendment to the Arkansas FOIA in 2003 to exclude incarcerated felons from the state definition of "citizen."  Access advocates, including me, managed at that time to negotiate the exclusion down to only DOC records and pro se requests, allowing attorney-representatives to make requests.  Eight years later, the exemption was amended to eliminate the DOC limitation.

It was difficult to advocate for prisoner access.  Incarcerated felons are not a popular constituency and don't vote.  And to be fair to state officials, many dilatory and hardly comprehensible requests emanate from prisons and tie up public resources with no clear public benefit.  At the same time, of course, persons deprived of liberty are susceptible to human rights abuses for which accountability is notoriously elusive.  Michigan public radio in 2016 explored the problem of prisoner civil rights in the absence of access to information in that state's law.

The Massachusetts case is Bradley v. Records Access Officer, No. 20-P-419 (Mass. App. Ct. 2021).  Justice Gregory I. Massing authored the opinion for a unanimous panel also comprising Justices Henry and Ditkoff.  Before appointment to the bench in 2014, Justice Massing served as executive director of the Rappaport Center for Law and Public Service, and previously as general counsel for the state's Executive Office of Public Safety and Security.

'Error in judgment' jury instruction properly cuts room for doctor to escape liability for delay of surgery

Ischemic bowel in CT scan
(image by James Heilman, MD, CC BY-SA 3.0)

A doctor did not commit malpractice by awaiting test results before committing a patient to surgery for an ischemic bowel, even if permanent disability resulted from delay, the Massachusetts Appeals Court ruled before Memorial Day weekend.  The jury was properly instructed to allow leeway for error in judgment.

The plaintiff-patient presented at the emergency room at 1 a.m. in severe abdominal pain and with a history of gastric bypass surgery and hernia repair.  The defendant-doctor correctly suspected ischemic bowel, a blood blockage, and, at 3 a.m., sent the patient for a CT scan.  Based on the scan results, the doctor, at 4:23 a.m., ordered the patient to surgery, which commenced by 6:30 a.m.

The court summarized, "The main dispute at trial was whether [the doctor] acted within the standard of care by ordering the CT scan and waiting for the results, or whether he instead should have contacted a surgeon earlier."  On appeal from judgment entered for the doctor, the plaintiff charged that the jury was erroneously instructed to allow for error in the doctor's professional judgment.

Tracking model jury instructions (p. 5), the trial judge had instructed, inter alia:

"If, in retrospect, the physician's judgment was incorrect, it is not, in and of itself, enough to prove medical malpractice or negligence.

"Doctors are allowed a range in the reasonable exercise of professional judgment and they are not liable for mere errors of judgment so long as that judgment does not represent a departure from the standard of care resulting in a failure to do something that the standard of care requires or in doing something that should not be done under the standard of care.

"In other words, a doctor is liable for errors of judgment only if those errors represent a departure from the standard of care."

In affirming for the doctor, the court upheld the instruction.  The court reviewed a range of approaches in other states to "error of judgment" instruction in medical malpractice cases.  Hawaii and Oregon, for example, reject the instruction as posing too great a risk of confusion for the jury.  California accords with the Massachusetts position.  Other states, such as New York, use the instruction "only where there is evidence at trial that the physician chose from one of several medically acceptable alternatives."  In defense of the Massachusetts position, the court reasoned:

If properly formulated, such an instruction focuses the jury's attention on the standard of care, rather than the particular results in a case.  The instruction also recognizes the reality that, like all professionals, medical professionals need to make judgment calls between various acceptable courses of actions and they should not be found liable unless those judgment calls fall outside the standard of care.

The range of approaches demonstrates civil courts' long struggle with hindsight bias, especially in medical malpractice.  Hindsight bias is a natural human tendency to overestimate one's ability to make a decision correctly when viewing the decision as if in the past, ignorant of consequences, but from a perspective in the present, informed, in fact, by subsequently acquired information.  Shankar Vedantam talked about the problem on The Hidden Brain podcast in 2020.

Hindsight bias is not unique to medical malpractice, nor even to tort law.  Psychologists have documented hindsight bias in "accounting and auditing decisions, athletic competition, and political strategy," besides medicine.  As I wrote in a book on legal pedagogy in 2019, the cartoon South Park even invented a character, Captain Hindsight, to make fun of the human foible.  Hindsight bias inevitably contaminates every tort case, and countering it often is an appropriate strategy in legal argument and jury instruction.  For a juror, like any decision maker, it is difficult to reconstruct a past decision to the complete exclusion of undesired consequences.

The problem is exaggerated in the medical context because of the simplicity of the doctor-patient relationship.  A patient sees a doctor for one purpose, exclusively: to get better.  A doctor has one and only one job: to heal.  When healing is not the result that a patient experiences, and the jury has knowledge of that consequence, it is deceptively easy for jurors to confuse the doctor's failure to heal with a departure from the standard of care.  The Massachusetts instruction is designed to clarify the distinction for jurors.

The case is Paiva v. Kaplan, No. 19-P-1789 (Mass. App. Ct. May 28, 2021).  Justice Joseph M. Ditkoff authored the opinion of the unanimous panel that also comprised Justices Vuono and Milkey.  In a former post as general counsel of the District Court, Justice Ditkoff's responsibilities included drafting standardized jury instructions.

Extortion claim survives anti-SLAPP motion because defendants could not show petitioning connection

Haverhill, Mass., on the Merrimack River, 2008
(photo by Fletcher6 CC BY-SA 3.0)

Defendants could not raise an anti-SLAPP law against allegations of extortion, the Massachusetts Appeals court ruled before the Memorial Day weekend, because extortion did not relate plausibly to the defendants' constitutionally protected petitioning.

Plaintiffs Stem Haverhill and owner Caroline Pineau were applicants for zoning ordinance changes to permit a marijuana dispensary, since opened, in the downtown riverfront district of Haverhill, Massachusetts, a city 35 miles north of Boston, on the New Hampshire border.  Defendants Brad Brooks and Lloyd Jennings leased nearby residential and restaurant space and opposed the zoning changes.

Brooks and Jennings had had a scrap over property boundary with the previous owner of the Stem lot and had paid $30,000 to resolve the matter.  According to the complaint, Brooks and Jennings, apparently bitter over the former matter, demanded more than $30,000 from Pineau as the price of their acquiescence to zoning changes, no matter what the proposed use.

Stem and Pineau sued under the broad Massachusetts tort-and-consumer-protection statute, chapter 93A, as well as state civil rights law and common law defamation.  As often occurs in anti-SLAPP suits, both parties claimed the exercise of constitutional rights.  The plaintiffs were petitioning the government for zoning changes.  The defendants invoked anti-SLAPP upon the theory that the plaintiffs' civil charges of extortion were calculated to interfere with defendants' petition of government in opposition to the zoning changes.  (Read more about anti-SLAPP on this blog.)

The Massachusetts anti-SLAPP statute facilitates dismissal in favor of the defense by special motion upon the theory that litigation is being weaponized to chill the defendant's (or counter-defendant's) free exercise of the right to petition.  As construed by the Supreme Judicial Court, and quoted in part in the instant case, "a defendant seeking dismissal must show, at the threshold, that the claims against it 'are based solely on [its] exercise of its [constitutional] right to petition.'"

The extortion allegations did not fit the anti-SLAPP pattern, the court concluded, affirming the trial court on de novo review.  "Here, some of the defendants' statements to the Pineaus cannot reasonably be viewed as relating to the defendants' petitioning activities. As discussed, the defendants' focus was to obtain money from Pineau that the defendants knew Pineau did not owe to them."  Litigation in the Land Court could not produce a financial award, the court observed, thus undermining the defendants' position.  The court further reasoned:

Here the defendants did not merely oppose Pineau's proposed business, nor did they merely seek to negotiate their price.  Rather, the complaint describes a concerted and extended effort to coerce Pineau to pay, "or else"—complete with thinly veiled threats such as that Pineau "doesn't know who she is dealing with." The complaint thus adequately describes extortion—coercion by improper means that is designed to reap an economic reward. Such actions, in the business context, can be actionable under c[hapter] 93A, and given the facts alleged here, the suit is not based solely on petitioning activity as required by the anti-SLAPP cases.

Though the "solely" limitation is not found in the anti-SLAPP statute, the rule appropriately narrows the doctrine to its roots in protecting the right to petition.  Had the case proceeded in the Massachusetts anti-SLAPP process, the plaintiff would have been afforded an opportunity in rebuttal, also, to articulate a purpose apart from chilling the right to petition.  As the Appeals Court observed, "The Supreme Judicial Court has construed the statute several times, and has provided a framework, which has evolved over time, for analyzing whether an anti-SLAPP motion to dismiss should be allowed."

The case is Haverhill Stem LLC v. Jennings, No. 20-P-537 (Mass. App. Ct. May 26, 2021).  Justice John Englander authored the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Kinder.

Sovereign immunity shields Texas power overseer from liability for now: not so privatized after all

NASA satellite image of Houston with area blackouts, Feb. 16

The cold-induced electric-power disaster in Texas is raising questions about the accountability of "ERCOT," the Electric Reliability Council of Texas.

ERCOT is responsible for about 90% of the Texas electricity market.  During the storm and record cold of last week, Texans experienced rolling outages and some prolonged blackouts.  Deaths and injuries, from hypothermia and carbon monoxide poisoning, are attributed to the cold and blackouts, as well as billions of dollars in property damage.  Governor Greg Abbott has blamed ERCOT for failure to prepare the state's electrical system for a foreseeable winter weather event and promised an investigation.

National Weather Service Tower Cam, Midland, Feb. 20

Naturally, many Texans are wondering about legal liability for ERCOT.  I noticed a tweet from Houston Chronicle business reporter Gwendolyn Wu, who said that ERCOT has "sovereign immunity."  I found that hard to believe.  Wu cited a Chronicle story (subscription), from the bygone innocent age of fall 2019, in which business writer L.M. Sixel said just that.  As it turns out, the problem of ERCOT immunity is sitting, undecided, in the Texas Supreme Court at this very moment.

Legally, ERCOT is a nonprofit corporation formed in 1970 to oversee electric power distribution in Texas.  Because Texas has its own grid that doesn't cross state lines, the power system is not regulated by the federal government.  ERCOT has been at the heart of Texas's love affair with deregulation and privatization, a push that began in earnest in 1999 and found no bounds at the threshold of critical infrastructure.  State legislation in 1999 called on the Texas Public Utility Commission (PUC) to designate an exclusive "independent system operator" to oversee the Texas power grid, and ERCOT easily got the job that it more or less already had.

Yet ERCOT is neither wholly private nor a success story.  Its near monopoly control of Texas power comes with PUC oversight.  Despite that oversight, ERCOT has posted a remarkable record of abuse and failure.  As Sixel recounted in the Chronicle, executives went to prison in the 20-aughts for a financial fraud aggravated by lack of transparency and exposed by whistleblowers.  About the same time, Texans saw rolling blackouts, even while their deregulated electricity prices shot 30% over the national average.  Then, in 2011, a winter storm with single-digit temperatures caused blackouts across Texas.  It was that event that led federal regulators to recommend that ERCOT and the PUC winterize the system, a recommendation that was never heeded.

Frmr. Gov. Rick Perry tours ERCOT on March 14, 2012.

(photo by Gov. Rick PerryCC BY-NC-ND 2.0)

Apparently, an embarrassing record has not dampened the mood at ERCOT.  The "nonprofit," which is run by a board majority comprising power industry heavyweights, brought in $232m in revenue in 2018, Sixel reported in 2019, and chief executive Bill Magness took home $750,000 in 2017.  Sixel described ERCOT HQ (pictured below) near real-estate-red-hot Austin: "Its sprawling, modern glass and metal building has plush interiors with on-site fitness facilities that include a gym and sport court for volleyball, basketball and pickleball."  In contrast, the PUC "operates from two floors of crammed cubicles in ... a dilapidated structure close to the campus of the University of Texas at Austin.  DeAnn Walker, the commission chairman, earns $189,500 a year."

It was also in 2011 that ERCOT set out toward the immunity question now pending.  After the rolling outages of the 20-aughts, ERCOT wanted to see new sources of power added to the system.  Enter Panda Power, which invested $2.2bn to construct three power plants.  Alas, Panda later alleged in court, ERCOT had deliberately inflated market projections to incentivize investments; the power plants delivered only a fraction of the anticipated returns.  Panda sued ERCOT for $2.7bn in damages on theories including fraud and breach of fiduciary duty.

After almost a year of defending the case, ERCOT devised a new theory of sovereign immunity in Texas common law.  ERCOT performs exclusively governmental, not private, functions, it alleged, and works wholly under the control of the PUC.  Despite its statutory role as an "independent system operator," ERCOT insisted that it is not an independent contractor.  Rather, ERCOT styled itself as "a quasi-governmental regulator, performing an essential public service."  Panda argued that ERCOT is not entitled to sovereign immunity because it is "a non-governmental, non-profit corporation that receives no taxpayer dollars and retains discretion," particularly, Panda exhorted, when it furnishes false market data to power providers. 

In April 2018, reversing the district court, the Texas Court of Appeals agreed with ERCOT.  In a functionalist analysis, the intermediate appellate court grounded its decision in the legislative delegation of ultimate fiscal authority over ERCOT in the PUC.  The court wrote (citations omitted):

[A]s to separation-of-powers principles, [the statute] shows the legislature intended that determinations respecting system administration fees and ERCOT's fiscal matters, as well as any potential disciplinary matters or decertification, should be made by the PUC rather than the courts. Further, as the certified [independent service operator] provided for in [the statute], ERCOT is a necessary component of the legislature's electric utility industry regulatory scheme. A substantial judgment in this case could necessitate a potentially disruptive diversion of ERCOT's resources or a decertification of ERCOT not otherwise intended by the PUC.

According to Sixel, that decision rendered ERCOT "the only grid manager in the nation with sovereign immunity."

Pixabay image by Clker-Free-Vector-Images

Panda appealed to the Texas Supreme Court, which heard oral argument (MP3, PDF) on September 15, 2020, but has not ruled.

Meanwhile, a curious procedural imbroglio arose in the lower courts to gum up the works.  While Panda was busy lodging its appeal with the Texas Supreme Court, it didn't head off the intermediate appellate court's mandamus order to the district court to dismiss the case, which it did.  Panda then appealed that dismissal on a separate track, and the intermediate appellate court stayed oral argument on that second appeal, waiting to see what the Supreme Court would do with the first appeal.

One month after the Supreme Court heard oral argument, it ordered the parties to file supplemental briefs, which they did in November 2020 (ERCOT, Panda), to answer whether the district court's dismissal mooted the case in the Supreme Court.  Panda insisted that there is a live controversy still before the court.  ERCOT wrote that Panda should have asked for a stay of dismissal in the lower court, and it didn't.  Bad Panda.

House chamber in the Texas Capitol (picryl)

It looks to my outsider eyes like the Supreme Court badly wants not to decide the case.  And that was before the winter storm of 2021.  If the court does kick the case, the intermediate appellate court's ruling for sovereign immunity will stand, and any 2021 complainants will be out of luck.  ERCOT's supplemental brief read anyway with a good deal of confidence about how things would go in the Supreme Court, so maybe it's only a question of which appellate court will bear the people's ire.  While the courts dithered, Panda Energy, a division of Panda Power Funds, folded, and Texas froze.

The best answer to the people's woes lies in their state legislature.  Maybe Texas legislators can be made to understand that privatization is not really privatization when the reins, along with sovereign immunity and a market monopoly, are simply handed over to a nominally independent and hardly nonprofit oligarchy.

Or maybe legislators are on their way to Cancún and points warmer.

The case is In re Panda Power Infrastructure Fund, LLC, No. 18-0792 (now pending), appealing Panda Power Generation Infrastructure Fund, LLC v. Electric Reliability Council of Texas, Inc., No. 05-17-00872-CV (Tex. Ct. App. 5th Dist. Dallas Apr. 16, 2018), reversing No. CV-16-0401 (Tex. Dist. Ct. 15th Grayson County 2017).  The latter appeal is Electric Reliability Council of Texas v. Panda Power Generation Infrastructure Fund, LLC, No. 05-18-00611-CV (oral argument stayed Aug. 20, 2019).

[UPDATE, April 3, 2021.] The Texas Supreme Court ducked the immunity issue in ERCOT v. Panda with a "hotly contested" "non-decision."  DLA Piper has the story (Mar. 29, 2021).