Showing posts with label common law. Show all posts
Showing posts with label common law. Show all posts

Thursday, February 25, 2021

Despite lack of statute, anti-SLAPP blocks mining company suit as abuse of process in South Africa

Coffee Bay is a tourist destination on the Eastern Cape.
(photo by Jon Rawlinson CC BY 2.0)
Two weeks ago, a South African court recognized an anti-SLAPP defense in the absence of a statute, as an abuse of process, in a defamation case brought by mining companies against environmentalists.

In the case, mining companies Mineral Commodities Ltd and a subsidiary, and directors, sued environmentalist lawyers and activists for defamation, seeking R14.25m, close to US$1m, or in the alternative, an apology, for defendants' accusations of ecological and economic damage caused by excavation and mining projects at Tormin Mine on the Western Cape and at Xolobeni on the Eastern Cape.

Defense lawyers argued that the suit was a strategic lawsuit against public participation, or "SLAPP" suit, calculated to silence the defendants for their criticism of the plaintiffs, rather than a bona fide claim of defamation.  South Africa has no anti-SLAPP statute.  But the High Court for the Western Cape held, with reference to the freedom of expression in the South African constitution, that the judicial power to abate vexatious litigation and abuse of civil process may be deployed to dismiss a SLAPP suit.

"[T]he interests of justice should not be compromised due to a lacuna or the lack of legislative framework," the court wrote.

The court examined the history of the SLAPP as a legal strategy and traced its origin to anti-environmentalism in Colorado and recognition in the 1988 scholarship of professors Penelope Canan and George Pring.  The court discussed anti-SLAPP legislation in the United States, Canada, and Australia, including the statutes of Georgia, Washington, and New York, and the recent enhancement of the latter.  Anti-SLAPP has been recognized as meritorious in principle by the Supreme Court of Canada, the High Court observed, though anti-SLAPP is enacted by statute in only three provinces.

The court looked also to Europe, and specifically the "McLibel" lawsuit of the 1990s (1997 documentary) and 20-aughts, in which McDonald's Corp. sued environmentalists in England.  Anti-SLAPP has been debated in the European Union, the court explained, but legislation has not been enacted.  Nevertheless, the court opined, the ultimate disposition of the McLibel case in the European Court of Human Rights (ECtHR) was consistent with the principle of anti-SLAPP.  In the McLibel case, the English courts ruled in favor of McDonald's, finding some assertions in the environmentalist leaflets to be libelous.  Subsequently, the ECtHR, in 2005, ruled that British law (well before the 2013 UK Defamation Act) had not afforded the defendants sufficient protection for the freedom of speech.  

In the McLibel case, the ECtHR stressed the chilling effect on speech of the extraordinary cost burden on individual activist-defendants in defending a civil suit against a large corporation, especially in the shadow of attorney fee-shifting to the winner, which is the norm in civil litigation in the UK and most of the world.  The High Court pointed to a South African precedent that is similar on that point, Biowatch Trust v. Registrar, Genetic Resources, in the Constitutional Court of South Africa in 2009.

I have written before about Biowatch, which was an access-to-information (ATI, freedom of information, or FOI) case.  In that case, environmentalist NGO Biowatch, under South African environmental protection and access-to-information law, sought information about Monsanto (now Bayer) genetically modified organisms introduced into national agriculture.  The result in the case was mixed, and the trial court awarded the defendant government and intervenor Monsanto their substantial legal fees against Biowatch.  Subsequently, the Constitutional Court held that Biowatch should be exempt from a fee award, because such an award against a public-interest litigant would chill the exercise of constitutional rights, which, in South Africa, include the right to a healthy environment.

The exact contours of a common law anti-SLAPP defense will have to be worked out by South African courts if the High Court precedent sticks.  The instant case was not difficult for the court to map to the SLAPP paradigm:  The tort alleged was defamation.  The conduct of the defendants was expression specifically in furtherance of environmental protection.  The mismatch between plaintiffs and defendants in wealth and power was "glaringly obvious."

The plaintiffs' demand also drew the court's skepticism.  Referencing the findings of Canan and Pring in the 1980s, the court observed: "A common feature of SLAPP suits is ... a demand for an apology as an alternative to the exorbitant monetary claim."

I reiterate my dislike of anti-SLAPP laws.  I also acknowledge that anti-SLAPP measures sometimes are warranted.  South Africa in particular, in recent decades, has seen a rise in the weaponization of defamation and related torts, especially by powerful corporations and politicians, including former President Jacob Zuma.  Americans might note a parallel in former President Donald Trump, who used defamation for leverage in business and called for plaintiff-friendly libel reform.  At the same time, defamation defendant President Trump won a nearly $300,000 award against Stormy Daniels thanks to fee-shifting under the California anti-SLAPP law.

The problem with anti-SLAPP legislation in the United States is that it does not weigh factors that the Western Cape High Court took into account, such as the relative power of the plaintiff and the defendant.  Yes, anti-SLAPP laws in the United States and Canada protect environmentalists against developers.  American anti-SLAPP laws also protect fantastically wealthy and sloppy media conglomerates against individuals whose lives are ruined by mistakes and falsities on the internet, which never forgets.  The threat of fee shifting, characteristic of anti-SLAPP legislation and usually foreign to U.S. civil litigation, is especially terrifying in light of enormous U.S. transaction costs, including the high-dollar rents of American corporate defense firms.  Anti-SLAPP laws are the darling of the professional media defense bar, and, lest the journalist's aphorism be conveniently forgotten, we might ought follow the money.

For that reason, the High Court's "abuse of process" approach is intriguing.  The court's articulation of abuse of process, as applied to Mineral Commodities, while not the sole basis of the court's holding, accords with the American common law test.  The American tort may be expressed as "(1) use of judicial process (civil or criminal), (2) ulterior or improper motive, (3) process used not for its designed or intended purposes, and (4) resulting harm."

Typically, in the American context, abuse of process is exceedingly difficult to prove, because courts are generous in accepting the plaintiff's plea of honest intentions to negate the second element.  Mineral Commodities pleaded its genuineness, but the High Court was willing to doubt, sensibly, looking at the parties and the uncontroverted facts.  Maybe a bit less judicial generosity would allow abuse of process to police SLAPP better than the corporate-friendly statutes that 30 U.S. states have embraced, and for which media corporations are now lobbying Congress.

The opinion in the High Court was delivered by Deputy Judge President of the Western Cape High Court Patricia Goliath.  Her surname was not lost on commentators (below), who played on the "David vs. Goliath" ideal of anti-SLAPP.  Curiously, DJP Goliath, who served on the Constitutional Court in 2018, is embroiled presently in turmoil within the High Court.  In 2019, she alleged she had been pressured by President Zuma for favorable assignments of cases in which he was involved.  Possibly in retaliation for not playing ball, she has been, she has alleged further, subject to gross misconduct and verbal abuse, if not worse, by High Court President John Hlophe.  JP Hlophe denies the allegations.

I am indebted, for spying the case, to attorneys for the defendants, Odette Geldenhuys and Dario Milo, of Webber Wentzel, who wrote about the case for the Sunday Times (South Africa) (subscription required) and for the INFORRM blog.

The case is Mineral Sands Resources Ltd v. Reddell, No. 7595/2017, [2021] ZAWCHC 22 (High Ct. Wn. Cape Feb. 9, 2021) (South Africa).

Sunday, February 7, 2021

Atlas Obscura fills in fuzzy history of title, 'esquire'

Squire (NYPL)

Atlas Obscura has an excellent piece on the title "Esquire" and its connection to the American legal profession.  The writer is L.A.-based freelancer Dan Nosowitz. He writes:

One of the weirder movements in modern American political action attempted to attack a title so vigorously that it would have essentially collapsed the entire history of the American government. The movement didn’t succeed, because it was both factually wrong and wildly misguided, but it was wrong in a really interesting way. It relied on the title "Esquire," which is one of the more common but most unusual ways a person can ask to be addressed.

The essay is Dan Nosowitz, What Does the Title "Esquire" Mean, Anyway?: And What Does it Have to Do with Lawyering?, Atlas Obscura, Feb. 3, 2021.

Birth announcement: Ontario court is reluctant parent of new tort of 'internet harassment'

UNESCO image CC BY-SA 4.0
The tort world is abuzz with a court decision in Ontario that has birthed a new common law cause of action for online harassment.

The facts that gave rise to the case were extreme.  The defendant was the subject of a New York Times story (subscription) on January 30 about the difficulty of remediating online reputational harm.  The perpetrator of the harassment targeted some 150 victims, including children, spat accusations ranging from fraud to pedophilia, and was adjudged a vexatious litigant and jailed for contempt of court.  Floundering in a dearth of effective enforcement mechanisms, the Ontario Superior Court of Justice (para. 171) recognized a "tort of harassment in internet communications" that means to be narrow:

where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.

The case is Caplan v. Atas, 2021 ONSC 670 (Ont. Super. Ct. Jan. 28, 2021).  Jennifer McKenzie and Amanda Branch at Bereskin & Parr have commentary.  Hat tip to Dan Greenberg for bringing the New York Times story to my attention.

Sunday, October 18, 2020

Grand jury secrecy is important, but not sacred

pixy.org (CC BY-NC-ND 4.0)

[UPDATE: As I was writing this piece on Friday, the Kentucky court released audio of the grand jury proceedings.  Read more at your preferred news outlet.]

A fight is under way in Kentucky over a grand juror's bid to speak out about what happened in the room in September when the grand jury rejected indictment for the killing of Breonna Taylor.  The attorney for "Anonymous Grand Juror #1" accuses the Kentucky AG of not telling the public the whole story.

Most of the news coverage, and some of the scholarly commentary, follows up report of the meta-litigation with a declaration about the hallowed secrecy of the grand jury and the extraordinary nature of a bid to compromise that secrecy.

That characterization slightly misses the mark.  What is extraordinary, but not unprecedented, about the case is that the bid to speak is coming from a participating grand juror, rather than an outside petitioner, such as an indicted defendant, a victim, or a media intervenor.

We should be protective of grand jury secrecy.  The grand jury is one of the few areas of American law in which our absolutist-tending free speech doctrine makes some concession to the protection of reputation, mostly to the benefit of the unindicted.  

At the same time, we should refrain from heralding grand jury secrecy as incontestable and absolute.  The tradition of grand jury secrecy inverts the presumption underlying the common law right of access to the courts.  Ample common law precedent demonstrates that grand jury secrecy is only a presumption—rebuttable, by definition. 

In 1951, the Supreme Court of Pennsylvania wrote ably on the issue while rejecting a defense bid to investigate the grand jury process that resulted in indictments for bribery.

In view of the large amount of literature that has been written concerning the origin and history of the Grand Jury as one of the administrative agencies of the criminal law employed for centuries throughout the Anglo-Saxon world it is wholly unnecessary to attempt to elaborate upon those themes. Likewise there is no need to stress the vital importance of the maintenance of secrecy in regard to the deliberations and proceedings of Grand Juries, for the policy of the law in that respect has been so long established that it is familiar to every student of the law. The form of the oath of secrecy to be exacted of grand jurors was prescribed in our own Commonwealth as early as the Frame of Government enacted by the Provincial Assembly in 1696, substantially the same as it had been set forth in 1681 .... Generally speaking, the rule is that grand jurors cannot be sworn and examined to impeach the validity and correctness of their finding if an indictment has been regularly returned.

[¶] It is true that some inroads have been made upon the rule of secrecy, with a resulting number of established exceptions. Thus a grand juror has been held to be a competent witness to prove who the prosecutor was .... Or to contradict the testimony of a witness as to what she testified to before the Grand Jury .... Or to testify that the indictment was based solely upon testimony heard by the Grand Jury in another case against another person .... 

As to whether the mandate of secrecy nevertheless permits disclosure by a grand juror concerning alleged improper acts or misconduct on the part of the prosecuting officer in the Grand Jury room there is considerable contrariety of opinion in the various jurisdictions, ... which naturally results from the fact that there are obviously valid reasons to support either view. 

[¶] On the one hand, to close the doors of the Grand Jury room so tightly that the actions of the prosecuting officer therein cannot be disclosed, however flagrant and unlawful his conduct may have been and however much it may have been responsible for the finding of a wholly unauthorized bill of indictment, would be unfair to the defendant thus indicted even though, if innocent, he could subsequently vindicate himself in a trial upon the merits; it would also permit an over-zealous official to use the power of his office and his influence with the grand jury as an instrument of oppression, with immunity from investigation. On the other hand, to allow such an investigation lightly to be had would afford an opportunity to every defendant to institute dilatory proceedings and divert the course of justice from himself to an attack upon the public officials charged with administering the law and thereby seek to make them the defendants in the proceedings instead of himself.

Commonwealth v. Judge Smart, 368 Pa. 630 (1951).

I don't know enough about the merits in the Kentucky case to opine on what the outcome should be.  The AG's memo is in circulation online, but I can't find the juror's initial petition.  I expect the court to make an informed decision that balances the just cause of secrecy with the also-just cause of accountability.  

If grand jury secrecy gives way, the sky isn't falling.

The case is Anonymous Grand Juror #1 v. Commonwealth of Kentucky, No. 20-CI-5721 (Jefferson, Mo., Cir. Ct. II Div. filed Sept. 2020).

[UPDATE, Oct. 21.]  Yesterday the court ruled that grand jurors may speak publicly.  This is the statement of Anonymous Grand Juror #1.


Tuesday, September 29, 2020

Court greats both cautioned us on NYT v. Sullivan

I'm indebted to Trump Litigation Seminar student Kevin Burchill, who timely unearthed this interview with the late Justices Ruth Bader Ginsburg and Antonin Scalia by journalist and journalism professor Marvin Kalb.  From the cue linked below (at 21:42, for six or so minutes), they discuss New York Times v. Sullivan (U.S. 1964).

 

Nonetheless a First Amendment advocate, I have long shared Justice Scalia's unpopular position that Sullivan was incorrectly decided.  I don't contend that the newspaper should have lost.  In the civil rights context in which the case arose, Sullivan played a critical role in relieving segregationists of state tort law as a weapon.  However, there were many paths to that outcome that did not require the wholesale federalization and constitutionalization of state defamation torts.

The consequences, as suggested even by chapter 19 ("Back to the Drawing Board?") of Anthony Lewis's classic 1991 panegyric and case biography, Make No Law, have been disastrous, because Sullivan undermined the laboratory of common law experimentation in the states.  Today, for example, the "public interest" approach to public-figure defamation in the UK Defamation Act shows great promise as a model to balance the rights of reputation and free speech.  And other countries, such as Australia, seem to be getting along well with much more limited Sullivan-like protection for free speech on public affairs, without the big sky of democracy collapsing across the outback.  Yet we in the United States remain tethered to a near-immunity doctrine born of a bygone era.

RBG (Kalb Report)
In this interview with Kalb, Justices Ginsburg and Scalia characteristically state their opposing positions on the correctness of Sullivan, for and against, respectively.  What I find compelling, though, is that Justice Ginsburg acknowledged Sullivan's unintended problematic consequences.  Sullivan was a product of civil rights exigency, she reiterated.  But, she recognized, its doctrine was tailor-made for a press on the same page of mighty ideals in the mission and ethics of journalism.

What if, say, new technology caused mass media entry barriers to fall?  And then we had a proliferation of partisan pundits, or even disinformation, pouring through our information flows?  If Sullivan were then not up to the job, we might find our hands tied by unyielding constitutional cable.  We might flail, helpless, in trying to restore integrity to the democratic space.

Perish the thought.

Wednesday, May 20, 2020

Talk traces 'nuisance' from King Henry I to COVID-19


Yesterday I had the privilege to present in a lecture series (virtually) at Jagiellonian University (UJ) on the tort of nuisance in American common law.  I sketched out the historical background of nuisance relative to the recent lawsuit by the State of Missouri, against the People's Republic of China, alleging public nuisance, among other theories, and seeking to establish responsibility and liability for the coronavirus pandemic.  Here is a video (CC BY-NC-SA 4.0) of the presentation, also available from Facebook, where the lecture streamed live.  A narrative abstract is below the video.
The Tort of 'Nuisance' in American Common Law:
From Hedge Trimming to Coronavirus in 900 Years
Nuisance is one of the oldest civil actions in Anglo-American law, dating to the earliest written common law of the late middle ages.  Nuisance for centuries referred to an offense against property rights, like trespass, interfering with a neighbor’s enjoyment of land.  But a nuisance need not be physical, and colorful cases have addressed nuisance achieved by forces such as sound, light, and smell.  In recent decades, nuisance has undergone a radical transformation and generated a new theory of civil liability that has become untethered from private property.  State and local officials have litigated a broad new theory of “public nuisance” to attack problems on which the federal government has been apathetic, if not willfully resistant to resolution, such as climate change and the opioid epidemic.  Just last month, the State of Missouri sued the People’s Republic of China, asserting that COVID-19 constitutes a public nuisance.  Emerging from understandable frustration, public nuisance nevertheless threatens to destabilize the fragile equilibrium of state and federal power that holds the United States together.

Here are some links to read more, as referenced in the presentation:

Here is a two-minute video (CC BY-NC-ND 4.0) of only my PowerPoint (no audio), if you want an idea about the course of the talk:



The four-part lecture series, "American Law in Difficult Times," comprises:
Paul Kurth: The American Low-Income Taxpayer: Legal Framework and Roles Law Students Play
May 12, 18:00
Event - Video

May 19, 18:00
Richard Peltz-Steele: “Nuisance” in American Common Law Tort: COVID-19 as a Public Nuisance?
Event - Video

May 26, 18:00
Susanna Fischer: Art Museums in Financial Crisis: Legal and Ethical Issues Related to Deaccessioning
Event - Video

June 2, 18:00
Cecily Baskir: American Criminal Justice Reform in the Time of COVID-19
Event - Video


Here is the lecture series invitation (Polish) from the American Law Students' Society (ALSS) at UJ, via Facebook:



Here is an "about" from ALSS and partners:
❖ ABOUT AMERICAN LAW IN DIFFICULT TIMES:

The American Law Program (Szkoła Prawa Amerykańskiego) run by the Columbus School of Law, The Catholic University of American [CUA], Washington D.C., and the Faculty of Law and Administration, Jagiellonian University, Kraków, as well as the American Law Students’ Society (Koło Naukowe Prawa Amerykańskiego) at the Jagiellonian University, Kraków, sincerely invite you to participate in a series of four one-hour online open lectures and discussion sessions delivered by professors from the American Law Program.

The lectures will be devoted to a variety of legal issues mainly relating to COVID-19 difficulties facing people and institutions, for which legal solutions may be useful.

The lectures will be available through Microsoft Teams as well as a live-stream via Facebook. Participants willing to participate through Microsoft Teams are kindly asked to provide the organizers with their e-mails no later than 6 hours before the commencement of the lecture, by e-mail to kn.prawaamerykanskiego@gmail.com.

Your participation in all four lectures will be certified by the American Law Students’ Society. Only those participants who provide the organisers with their name, surname and e-mail will be granted such certificates.
I am grateful to Jagoda Szpak and Agnieszka Zając of ALSS at UJ; Wojciech Bańczyk, Piotr Szwedo, Julianna Karaszkiewicz-Kobierzyńska, and Gaspar Kot at UJ; and Leah Wortham at CUA.  The lecture series is sponsored by, and I am further grateful to, the Koło Naukowe Prawa Amerykańskiego (ALSS), Szkoła Prawa Amerykańskiego (School of American Law), and the Ośrodek Koordynacyjny Szkół Praw Obcych (Coordination Center for Foreign Law Schools) at the Uniwersytet Jagielloński w Krakowie (UJ in Kraków), and to CUA.

Tuesday, May 19, 2020

First Amendment right of access to court records is alive and kicking in electronic era

Developments in the First Amendment right of access to court records were on the menu this afternoon for a continuing legal education program from the American Bar Association (ABA).

The First Amendment protects "the freedom of speech, or of the press," and the U.S. Supreme Court in most contexts has rejected the First Amendment as carving out an affirmative access doctrine.  Yet access to court proceedings and records is an exceptional and narrow area of First Amendment law that grew out of criminal defendants' trial rights in the 1970s and 1980s.  (Co-authors and I wrote about the First Amendment and related common law right of access to court records in the early days of electronic court record access policy.)

Lately there has been some litigation pushing to clarify, if not expand, the First Amendment right of access to court records.  Specifically, courts in two federal jurisdictions, the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of Virginia, have recognized a right of timely access to newly filed trial court complaints.

The public access problem arose as a corollary to the economic exigency that has constrained contemporary journalism.  When I graduated from journalism school, and triceratops roamed the earth, a good journalist on the court beat checked the dockets at the clerk's office at the end of every day.  But the luxury of one journalist-one beat is long a thing of the past, and now it's harder for the working journalist to keep close tabs on new developments at the courthouse.  In this atmosphere, some state court clerks—most definitely not all, our presenters hastened to clarify—took to withholding newly filed complaints from the public record, whether while pending for "processing," or, one might speculate, to deter coverage of sensitive subject matter long enough for news editors to lose interest.

Courthouse News Service (CNS) is a national media entity reporting on civil litigation in state and federal courts.  I reference CNS often myself, here on the blog and in teaching and research, especially for pretrial court coverage, which is hard to come by in the United States.  CNS pushed back against the delayed release of pleadings, suing successfully in civil rights under the principal federal civil rights statute, 42 U.S.C. § 1983.  CNS had to beat abstention in both jurisdictions, which it did, after a first appeal and remand in the Ninth Circuit.

Relying on the range of federal precedents supporting the principle that "access delayed is access denied," CNS substantially prevailed upon its second go in federal trial court in California.  That case was called Planet, and CNS also won on appeal in, and remand from, the Ninth Circuit in a case called Yamasaki.  Remarkably, the third CNS case, in federal court in Virginia, featured full-on discovery, experts, and motions practice on its way to a four-day bench trial and CNS win.  Questions of fact arose from the clerks' purported necessity for delay while pleadings were "processed."  The court in Virginia declined formally to follow Planet, favoring a tougher articulation of the requisite First Amendment scrutiny.

The take-away from all of the cases is that the First Amendment does attach to newly filed pleadings, under the Press-Enterprise II "experience and logic test"; that timely ("contemporaneous," which doesn't mean instant) access matters from a First Amendment perspective; and that delays in access must survive heightened constitutional scrutiny.

These are the access-to-pleadings cases that the ABA presenters discussed:

  • Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) (“Planet III”), aff'g in part & vacating in part Courthouse News Serv. v. Planet, 44 Media L. Rep. 2261, 2016 WL 4157210 (C.D. Cal. May 26, 2016).
  • Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020), remanding, for further proceedings consistent with Planet III, Courthouse News Serv. v. Yamasaki, 312 F. Supp. 3d (C.D. Cal. May 9, 2018).
  • Courthouse News Serv. v. Schaefer, ___ F. Supp. 3d ___, 2020 WL 863516 (E.D. Va. Feb. 21) (dkt. no. 102), appeal filed, No. 20-1386 (4th Cir. Apr. 2, 2020).

CLE presenters also discussed record access in the following cases.  I've added links to cases in trial court dispositions.
  • Brown v. Maxwell, 929 F.3d 41 (2d Cir 2019) (remanding for in camera document review in journalist bid to access records in case of sexual abuse victim's allegations against late financier Jeffrey Epstein).
  • In re New York Times, 799 Fed. Appx. 62 (2d Cir. 2020) (affirming in part and vacating in part sealing of two parts of transcript of guilty plea hearing in Foreign Corrupt Practices Act prosecution of former Goldman Sachs employee Timothy Leissner).
  • Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020) (secreting video depositions of non-party witnesses, their privacy interests overcoming access presumption, upon access bid by online blogger in case by former student at orthodox Jewish school against the school and principal, alleging the principal sexually molested him while he was a student).
  • Trump v. Deutshce Bank AG, 940 F.3d 146 (2d Cir. 2019) (denying access to taxpayer names as not "judicial documents," upon news organizations' motions to intervene and unseal unredacted letter filed by bank in appeal, in order to learn the redacted names of taxpayers whose income tax returns were in bank's possession, in case of bank resistance to subpoenas in House investigation of President's tax returns).
  • King & Spalding, LLP v. U.S. Dep’t of Health and Hum. Servs., No. 1:16-CV-01616, 2020 WL 1695081 (Apr. 7, 2020) (denying seal, but allowing withdrawal, of information about attorney fees filed with motion, rejecting firm's claim of need to protect competitive information).
  • United States v. Avenatti, No. 1:19-CR-00373, 2020 WL 70952 (S.D.N.Y. Jan. 6, 2020) (denying motion, filed by Government, defendant, and subpoena target, to seal records related to subpoena duces tecum issued on behalf of defendant on non-party in criminal proceeding).
  • VR Optics, LLC v. Peloton Interactive, Inc., No. 1:16-CV-06392, 2020 WL 1644204, at *10 (S.D.N.Y. Apr. 2, 2020) (dkt. no. 308, at 17-20) (denying, as moot, motions by both parties to seal trial court records in patent dispute).
  • Motion to Intervene and Unseal, Dawson v. Merck & Co., No. 1:12-cv-01876 (E.D.N.Y. filed Sept. 12, 2019, dkt. no. 121) (decision pending) (seeking unsealing and removal of redactions in court records in settled multi-district product liability litigation over alleged side effects of prescription drug, "Propecia," upon motion of news agency Reuters).

One indicator I found encouraging from an access advocate's perspective is the incidence of court rulings in favor of access even when both parties want to seal.

The ABA program was sponsored by the Forum on Communications Law.  The presenters were:

Tuesday, April 7, 2020

First Circuit dismisses Mount Ida student class action, incidentally limits emerging data protection theory

Holbrook Hall, Mount Ida College, Newton, Mass. John Phelan CC BY 3.0
An angle in a recent First Circuit decision deserves a mention in U.S. data protection circles.  I hadn't been aware of this angle of the case, so hat tip to attorney Melanie A. Conroy at Pierce Atwood in Boston for analyzing the case carefully in the The National Law Review.

The First Circuit affirmed dismissal in the ugly and unfortunate matter of Mount Ida College students' class action against the school after its abrupt closure and sale to the University of Massachusetts system.  Conroy's rundown on the case is thorough.  I want only to highlight one important point: the court refused to recognize, in Massachusetts law, a fiduciary duty owed by university to student.

The decision comports with multistate norms, but is nonetheless important in limiting an emerging doctrine of data protection in U.S. common law tort.  State courts that have recognized something like a data protection right in civil cases have used fiduciary duty to bootstrap their way there.

American common law invasion of privacy is too stringent to get the job done, that is, to articulate a data protection right, for various reasons.  One reason is its incorporation of what Professor Daniel Solove termed "the secrecy paradigm": information must be kept secret to remain secret.  Thus, I cannot complain when my bank tells someone about my financial transactions, because I already let my bank know about them.  My resort must be to banking privacy law, by statute.  And there arises the second problem for privacy plaintiffs: statutes are too stringent to get the job done.  I might be unhappy if my employer divulges information about my psychiatric condition to my insurer, but neither one of them is a healthcare provider covered by the federal patient privacy law ("HIPAA"), which does not (directly) provide for a cause of action anyway.

In 2018, the Connecticut Supreme Court bridged the common law gap from statutory insufficiency to actionable privacy claim by relying on the physician-patient duty of confidentiality.  In short, the court held, HIPAA + duty of confidentiality = protectible common law interest.  The court thereby allowed a woman to sue her ObGyn provider upon an allegation of breached confidentiality.  That duty of confidentiality is a form of fiduciary duty.  So a theory emerged of how U.S. common law might stumble its way to recognition of what the rest of the world, especially Europe, calls "data protection."

There are a lot of ways for us to start catching up with the rest of the world in recognizing people's right to personal data integrity; this is just one.  And it remains.  But it is limited by the scope of duties that might stand in for that second piece of the equation.  The Mount Ida case shows correctly that it will be harder for a plaintiff to get there against a business defendant that is not a professional, and the data held are financial information tangential to the nature of the relationship, here, educational.

The First Circuit aptly instructed Mount Ida students that if they wanted better protection for their personal information in state law, their remedy was with the state legislature.  The same can be said for Americans, data protection, and our torpid Congress.

The case is Squeri v. Mount Ida College, No. 19-1624 (1st Cir. Mar. 25, 2020).  U.S. Circuit Judge Lynch wrote for the panel, which also included Stahl and Kayatta, JJ.

Saturday, March 21, 2020

Customary law undergirds justice systems in Africa: A-courting in Harare

Outside the "Harare Civil Court" buildings, a discarded sign reads, "Harare Magistrate's Court / Civil and Customary Law." Other court building in Harare are pictured below. All photos RJ Peltz-Steele CC BY-SA 4.0.
The integration of customary law into national legal systems based on post-colonial polities is a challenge, and an opportunity, throughout Africa. I wrote recently about customary legal authority in the Casamance region of Senegal, and Zimbabwe is no exception to the norm.

The Zimbabwe constitution expressly preserves customary law, and federal enactments spell out the scope of customary law in sensitive areas, such as marriage and child care. The constitution creates customary courts and charges other courts, including the Supreme Court, with respecting and developing customary law, just as they do common law. For NYU Law GlobaLex, Saki and Chiware (updated by Pfumorodze and Chitsove, 2017) further explained:
The main reason for the existence of these customary law courts is to provide a justice system to ordinary people in rural areas which is consistent with African custom and values.  It is  realized that most ordinary Zimbabweans regulate their lives in accordance with customary law to the extent that the legal ideas and institutions inherited from the system has  preserved the authority of traditional leaders  to adjudicate in civil disputes by customary law.
In Zimbabwe, customary courts have jurisdiction over civil, but not criminal, matters. Common law controls in the civil sphere, while criminal law is strictly codified in Zimbabwe's mixed system.
Scales of justice adorn a high court building where criminal cases are heard.
Jehovah's Witnesses occupy the walk outside the characteristically modest legal aid office.

Your humble blogger stands before the highest court('s house) in the land.
Constitutional Court.





Sunday, November 10, 2019

Cameroon human rights record prompting Washington to end trade preference includes internet shutdowns

The announcement that the United States will end trade preferences for Cameroon in response to the country's human rights record marks some good news out of Washington and exemplifies the kind of "quid pro quo" that foreign policy is supposed to leverage.

In a freedom-of-expression angle to the story, documentary filmmakers screened Blacked Out: The Cameroon Internet Shutdown at RightsCon 2019 in Tunis over the summer.  The presentation fit perfectly into one of the key conference themes, "#KeepItOn."  I was privileged to be there and to meet one of the filmmakers, who talked about the extraordinary risk of documenting the minority anglophone community in Cameroon today.  More at Quartz Africa and at the Blacked Out YouTube channel.  The film can be viewed on YouTube in its 43-minute cut or its 65-minute uncut version, below.


Of interest to legal comparatists, there's an interesting underlying story in Cameroon's civil law tradition arising from a merger of French and British political possessions.  That's not the subject of the movie, but you can imagine the tension of legal tradition running in tandem with tensions of culture, language, and history, and all of that overlaid on and obscuring, in classic imperialist fashion, pre- and still-existing tribal cultures and customary legal traditions.

Friday, November 8, 2019

Grand jury secrecy is not sacrosanct

Actors reenact the Moore's Ford lynchings every year or two, lest the public
forget.  (July 26, 2014, photo by artstuffmatters, CC BY-NC-ND 2.0.)
Georgia Public Broadcasting reported recently (via NPR; see also WaPo (pay wall)) that the U.S. Court of Appeals for the Eleventh Circuit will soon decide whether to unseal the grand jury records pertaining to a 73-year-old lynching case.  Meanwhile, the Rhode Island Supreme Court ponders whether to open contemporary grand jury records in the "38 Studios" economic development scandal.  Both cases remind us that grand jury secrecy is not sacrosanct and must yield to paramount public interests.

GPB reported more in August about the brutal murders of Dorothy Dorsey Malcom, her brother, George Dorsey, and his wife, Mae Murray Dorsey, at the hands of a mob of 20 to 30 assailants at Moore's Ford Bridge, outside Monroe, Georgia, in 1946.  As many people were there, the crime remains "unsolved," as GPB's Grant Blankenship explained:
The crime made national headlines. Over the course of a grand jury investigation, the FBI interviewed over 2,000 people—almost half of the county in 1946. A hundred people testified before the grand jury, but not a single indictment was handed down.
Now historians seek to unseal the grand jury records to find out more about what happened that day in 1946 and why the investigation was unyielding.  The Department of Justice and Federal Bureau of Investigation are resisting.

Incidentally but importantly, the definitive book on the Moore's Ford case is Fire in a Canebrake: The Last Mass Lynching in America, by Laura Wexler.  I went to secondary school with Wexler, so #BrushWithGreatness.

I welcome public reminders that grand jury secrecy is not sacrosanct.  Grand jury secrecy is a reasoned and historically derived common law inversion of the usual presumption of transparency in our judiciary.  As such, it's an odd nod, for our typically ruthless paradigm of all-or-nothing privacy, to the importance of protecting the reputations of persons who might be connected with investigations, but turn out not to be fairly implicated as witnesses or suspects.

However, an inverted presumption is still a presumption, which means it can be overcome, or rebutted.  Equally historically, common law has allowed challengers in the public interest to overcome grand jury secrecy, for example, after Watergate.  Transparency is a means to accountability, and when a gross miscarriage of justice has occurred, as seems indisputable in the Moore's Ford case, the public interest in learning what went wrong in the investigation, and possibly delivering some belated justice, may be ruled paramount.

R.I. Gov. Raimondo
(Kenneth C. Zirkel
CC BY-SA 3.0)
Meanwhile, Rhode Island Governor Gina Raimondo is feuding with the state Attorney General's Office over access to the records of grand jury proceedings in 2014 and 2015 over the "38 Studios" economic development scandal.

As The Providence Journal recalled, "The state’s $75-million loan guarantee to retired Red Sox pitcher Curt Schilling’s high-risk video game venture ended up costing taxpayers a bundle when the company went belly up."  Criminal investigation was, again, unyielding.  "The statewide grand jury sat for 18 months, ending in 2015 with no criminal indictments. State lawmakers, former state Economic Development Corporation board members and staff, and 38 Studios executives were among the 146 witnesses the grand jury interviewed."

The ProJo summarized the pro and con of unsealing.  On the Governor's side, the state's attorney told the Rhode Island Supreme Court, 38 Studios marks "'a seminal event in recent Rhode Island history. It has cost taxpayers tens of millions of dollars. It has brought threats to the State’s credit rating.  It spawned a massive civil litigation resulting in $61 million of settlements. It caused the Securities and Exchange Commission to file a complaint against a state agency.... It prompted a criminal probe that reportedly touched the entire membership of the 2010 General Assembly (save one former member serving a federal prison sentence).'"

Kingdoms of Amalur: Reckoning was the only game published by 38 Studios
(and partners, including EA) before the enterprise went bankrupt.
The AG's office responded: "'[N]o one was indicted, the grand jury only recently concluded, the participants are still alive, and ... the [10-year] statute of limitations has not expired.... Unlimited disclosure ... may also adversely affect future grand jury participants who will be unable to rely upon the long-established policy that maintains the secrecy of the grand jury proceedings.'"

Ongoing payments to bondholders will cost R.I. taxpayers, me included, "$446,819 this year and an anticipated $12,288,413 next year," the ProJo reported.  I'm with Raimondo.  The Superior Court was not.

The Rhode Island Supreme Court heard oral arguments yesterday, November 7, In re 38 Studios Grand Jury, No. SU-2017-0301-A, but puts precious little online.  The ACLU of Rhode Island filed as amicus on the side of the Governor.

Monday, September 9, 2019

Media didn't totally lose in Boston Globe access case over show cause criminal procedure

The Massachusetts Supreme Judicial Court today ruled against The Boston Globe in the Spotlight team's bid for access to the court records of a narrow class of show cause criminal hearings.  The case is a loss for access advocates, but not wholly.  The court did not deviate from established analyses for access to the judicial records.  And the court used its superintendence power to require data collection for public scrutiny of what happens in these shadowy hearings going forward.

I wrote about this case and these hearings on The Savory Tort in May.  This particular class of "show cause" hearing is a peculiar creature of Massachusetts law and practice, in which a court clerk, not a judge, gets a chance to second-guess police and refuse to issue a criminal complaint, ending a case.  On the up side, this is a process barrier that protects would-be criminal defendants from harsh consequences in minor matters that don't warrant the expenditure of judicial resources, also encouraging alternative dispute resolution.  On the down side, critics have suspicions about these proceedings being used to protect the powerful, to show favoritism among attorneys, and, willfully or not, to effect race and other forms of discrimination in the criminal justice system.

The Globe sought access specifically to records of the sub-class of these hearings in which clerks found probable cause, yet refused to issue criminal complaints.  Public data about these hearings show big disparities among courts in the prevalence of these outcomes, which occur about 9,000 per year in the commonwealth, fueling speculation as to clerks' motives and rationales.  Making matters worse, there is inconsistency in how well clerks record and track what happens in the hearings, often leaving a scant record for review later, whether by a court, public oversight authority, or investigative journalist.

Photo by tfxc. (CC BY-NC-ND 2.0.)
The Globe argued for access under common law, the First Amendment, and the Massachusetts Declaration of Rights.  In today's ruling, the court rejected access on all three bases.  In doing so, though, the court colored within the lines of existing access doctrine.

Most compelling, first, was the Globe's common law argument: "not without merit," the court conceded.  The court acknowledged that the common law presumption of access to court records is known to attach to three classes of records: criminal cases, search warrants and affidavits after service, and public inquiries.  The court rejected analogy to criminal cases, because the show cause hearing occurs before a criminal case is initiated.  Rather, the proper analogy, the court reasoned, is a grand jury refusal to indict, which is sealed presumptively at common law.  The court also rejected analogy to pre-complaint search warrants, reasoning that the appropriate analogy is to the search warrant denied, or not yet served, when the public interest still weighs in favor of secrecy.

Pressing on the scale in favor of analogy to secret proceedings at common law was the privacy interest of the accused.  Here the broader context of the contemporary internet and technology as a threat to personal privacy overshadowed the court's logic.  The court reasoned that a principal common law rationale for secrecy in grand jury proceedings and in denied search warrants, namely, protection of the reputation of the innocent, is powerfully implicated in today's world, when a public record of a show cause hearing could turn up online.  There it would be accessible to everyone, including landlords and employers, who might discriminate against a person who never suffered a criminal complaint.

For the record, this argument for privacy and reputational integrity pulls at even my skeptical heart strings, as I have advocated for American adoption of the European online erasure concept in precisely this vein, notwithstanding First Amendment objections.  That said, I admit, it's a bit troubling to see this problem of unwarranted discrimination arising in the private misuse of information sneaking in through the back door of common law access and accountability analysis as a justification for government secrets.  Arguably the solution to the misuse of information is to do something about the person who misuses information, rather than redacting the free flow of information itself.  But that's a debate for another day.

Second, the court's First Amendment analysis tracked the common law analysis.  On the up side, the court employed the now long known, if no less opaque and controverted, "experience and logic" test of First Amendment access to the courts.  Building upon the analogy of the show cause hearing to grand jury secrecy, access was bound to fail both prongs of the First Amendment test.  Analogy naturally doomed the experience analysis, because pre-complaint criminal process has never been public.  And the privacy concerns fueled failure of the logic test.  The problem with "experience and logic" always has been that its results are foreordained by how one thinks about the hearing or record to which access is sought. 

Third, the court wrote that it never before has construed the Massachusetts Declaration of Rights more broadly than the First Amendment with regard to judicial access, and it saw no reason to do so today.  That disappoints me mostly just from the broad standpoint of liking creative state judicial construction of state constitutions as an instance of the 50-state-laboratory theory of our federalism.  In an age of paralysis in Washington—think gerrymandering—state constitutional law is a promising way forward.

Massachusetts Supreme Judicial Court
Faithful to access doctrine, the court pointed out that upon its very same grand jury analogy, it remains possible for an intervening movant, say, an investigative journalist, to seek access to a show cause record on a case by case basis.  This is a lesser known, and for my money under-utilized, access strategy, so it's pleasing to see the court stamp its imprimatur.  Common law access and secrecy are both presumptions, and each may be rebutted.  The court explained, "In considering individual records requests, the clerk-magistrate should balance the interests of transparency, accountability, and public confidence that might be served by making the requested records public against the risk that disclosure would unfairly result in adverse collateral consequences to the accused."

Transparency may win out, the court advised, in matters of public interest.  "[W]here the accused is a public official, the interests of transparency, accountability, and public confidence are at their apex if the conduct at issue occurred in the performance of the official's professional duties or materially bears on the official's ability to perform those duties honestly or capably."  That's a key check on clerks who might give the politically powerful a break—as long as watchdogs have an inkling to ask.

How will watchdogs know when something is amiss?  Even the court seemed somewhat concerned about the "wide disparities" in dismissed matters in the Globe's data set, e.g., probable cause with no criminal complaint issuing, one year "from a high of 43.9 percent in the Gloucester Division to a low of 0.2 percent in the Chelsea Division."  Though expressly eschewing any conclusion from the numbers, the court observed that "the magnitude of the apparent differences among courts suggests that different clerk's offices might have very different philosophies regarding the adjudication of these hearings."

To help the watchdog, the court exercised its power of superintendence over lower courts to compel electronic recordings of show cause hearings, preserving the record of judicial reconsideration in appropriate cases, and careful compilation of data about the secret hearings, including the race and gender of persons accused, and the names of attorneys in cases of private complainants.  Courts are expected to come into compliance in a year's time and to report anonymized statistics publicly.

Those measures hardly open the door to secret proceedings the way the Globe wanted, and they do nothing about the problem of clerks appointed through political connections playing an outsized role in the criminal charging process.  But the Globe got better than nothing, and maybe the door is cracked open just enough to deter dubious conduct and to squeeze some accountability out through a shaft of sunshine.

The decision against the Globe's petition for declaratory relief came from a unanimous panel of the Supreme Judicial Court, comprising six of the seven justices, and was authored by Chief Justice Ralph D. Gants.  The case is Boston Globe Media Partners LLC v. Chief Justice of the Trial Court, No. SJC-12681 (Mass. Sept. 9, 2019).

Monday, May 20, 2019

The summer beach read you've been looking for:
Don Herzog on 'Defaming the Dead'


Looking for the perfect gift for that tort lover in your family?  The perfect read for the beach this summer?  Look no farther.  Pick up Don Herzog’s Defaming the Dead (Yale University Press 2017).

Herzog, a law professor at the University of Michigan, published this odd delight.  He makes a cogent argument against the common law rule prohibiting defamation actions predicated on injury to the reputation of the dead.  I was skeptical: a whole book about this little common law trivium?  Turns out, the history of defamation and the dead is compelling: at times bizarre, thought-provoking, and often funny, especially in Herzog’s capable conversational style.

Do you care what people say about you after you die?  It’s human nature to put a lot of thought into the future beyond your lifespan.  But it doesn’t really matter.  You won’t be here to be injured by defamation, nor gratified by its omission.  And if you’ve moved on to a heavenly (or other) afterlife, why would you care what mortals are saying back on earth?  Sometimes we imagine that we care about the future because we want happiness for our survivors.  But we won’t be here to know whether they have it, so is the interest really ours, or theirs?  Should the law protect either?  These problems, which Herzog posits in the beginning of the book, force some deep thought about what we want to accomplish with tort law—e.g., compensation, deterrence, anti-vigilantism—and accordingly, how we think about tort’s elements—duty, breach, causation, and injury—in the context of dignitary harms.

To oversimplify, Herzog pits what he calls “the oblivion thesis”—you can’t assert legal rights from beyond—against the Latin maxim and social norm, de mortuis nil nisi bonum, loosely meaning, “speak no ill of the dead.”  Common law defamation observes the first proposition, while as to the second, Herzog cautions: “No reason to think that just because it’s stated in Latin and has an imposing history, it makes any sense.”

Yet as Herzog then well demonstrates, we observe the Latin maxim in American (and British) common law in all kinds of ways.  The law’s purported disinterest in protecting reputations of the dead never became a rule in criminal libel.  And 19th century precedents that excluded post mortem defamation recovery seem to have been motivated by the same illogic that survival statutes were meant to redress.

Meanwhile we recognize a range of legal interests that appear to reject the oblivion thesis:  We honor the intentions of the dead in trusts and estates.  Attorney and medical privileges can survive death, even as against the interests of the living.  In intellectual property, copyright and publicity rights survive death, and trademark discourages disparagement of the dead.  Privacy in the federal Freedom of Information Act protects survivors by way of the decedent’s personal rights.  And Herzog devotes an entire riveting chapter to legal prohibitions on—and compensations for—corpse desecration.

Whether or not you’re convinced in the end that the common law rule on defaming the dead should yield, Herzog’s tour of the field is a worthwhile interrogation of much more than defamation, and much more than tort law.  His thesis unpacks the fundamental question of who we think we are, if we are so much more than the sum of our carbon compounds; and how that understanding of our personhood is effected and perpetuated by our most curious construct: the rule of law.