Privilege shields attorney from bankruptcy creditor's claim of sham proceeding to hide client's assets

mohamed hassan CC0 via PxHere

The litigation privilege shields an attorney from tort liability in the conduct of a case, the Massachusetts high court held, even if there was fraud.

The question of litigation privilege arose in connection with a bankruptcy. Creditors of a construction company alleged that its bankrupt owner had transferred assets to his wife in a sham adversarial divorce proceeding, and that their lawyer had orchestrated the plan. Besides attaching property of the debtor, the creditors sued the lawyer who had represented the debtor's wife in the divorce while the debtor appeared pro se. 

The litigation privilege protects participants in litigation, including lawyers and witnesses, from liability arising from their participation in the litigation. The privilege is often employed in defense against tort actions such as defamation and interference with contract.

The litigation privilege is better characterized as an absolute privilege, rather than a qualified privilege, though the line between the two is not always bright.  Qualified privileges usually can be vitiated by malice, whether common law "ill will" malice or actual "reckless disregard" malice.

Closer to impregnable, an absolute privilege can be vulnerable on questions of scope, but usually not on grounds of culpability. For example, the Texas Supreme Court in 2021 declined to extend the litigation privilege to protect an attorney against defamation allegations based on extra-judicial statements to media to garner pre-suit publicity for litigation by the Animal Legal Defense Fund against the commercial owner of the Houston Downtown Aquarium. The privilege failed because of the remoteness of pre-suit publicity from the litigation process, not because of the alleged scienter of the attorney.

The Supreme Judicial Court recounted the common law history of the litigation privilege.

The roots of the litigation privilege can be found in English common law, with the first reported decision dismissing an action against an attorney on the ground of the privilege issued in 1606. See Brook v. Montague ... (K.B. 1606); [T. Leigh] Anenson, Absolute Immunity From Civil Liability: Lessons for Litigation Lawyers [Pepp. L. Rev.] (2004).... In that case, an English court held that an attorney accused of slandering his client's adversary during a previous trial—by asserting that the adversary was a convicted felon—was immune from suit.... The court decided that "[a] counsellor in law retained hath a privilege to enforce any thing which is informed him by his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false."

Courts in the United States adopted this doctrine in the Nineteenth Century and frequently cited the early English cases in doing so. See, e.g., Marsh v. Elsworth ... (N.Y. Super. Ct. 1869) [citing Brook]; Mower v. Watson [Vt. 1839 (citing Buckley v. Wood (K.B. 1591))]. Over time, the scope of the doctrine has broadened. See [Paul T.] Hayden, Reconsidering the Litigator's Absolute Privilege to Defame ... (1993). Nearly every State, including Massachusetts, has adopted the formulation of the privilege set forth in the Restatement (Second) of Torts, [§ 586 (1977),] which provides:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

"The privilege applies regardless of malice, bad faith, or any nefarious motives on the part of the lawyer so long as the conduct complained of has some relation to the litigation." Anenson, supra....

The court also recounted the purpose of the privilege, to "promote[] zealous advocacy by allowing attorneys 'complete freedom of expression and candor in communications in their efforts to secure justice for their clients'" (quoting Mass. precedent). The privilege simultaneously enhances judicial efficiency by precluding "meta-litigation" (my word choice) by disgruntled adversaries. (The same argument has been used to reject civil process torts.)

The litigation is not a privilege to commit wrongs, the court cautioned. Lawyers are subject to a court's inherent authority to sanction, by which a court can compel compensation to a wronged party. And lawyers are subject to bar discipline for violating the rules of professional conduct.

In the instant case, then, the complainants were not permitted to predicate an action for fraud based on the defendant-lawyer's in-court representation of the debtor's wife in the divorce proceedings.

A closer question arose as to the defendant's potential liability for conduct outside the courtroom, what the complainants characterized as orchestration of a fraudulent scheme. But the court resisted the effort to articulate a pattern of conduct apart from the litigation or expression in the course of litigation. The court cited and followed the lead of other state high courts, holding "that the litigation privilege shields an attorney from liability for actions taken during the course of litigation." The court cited a Restatement comment articulating a broad basis for the privilege "upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients."

"The litigation privilege thus applies to [the attorney's] advice and to the services he rendered," the court concluded.

The creditors are not without remedy, the court noted, evidenced by their efforts in collateral litigation to attach debtor assets notwithstanding the bankruptcy. Moreover, the court reiterated, civil immunity "would not shield the attorney from any applicable sanction for conduct contrary to the rules of professional responsibility, nor would it suggest to other attorneys that such behavior is acceptable."

The case is Bassichis v. Flores (Mass. July 1, 2022). Justice Serge Georges, Jr. wrote the unanimous opinion.

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

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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.

Media want anti-SLAPP security while ignoring real harm, and nobody wants to talk about tort dysfunction

Christian Dorn from Pixabay

On April 7, one of my favorite podcasts, WNYC's On The Media (OTM), ran a story, not its first, on anti-SLAPP laws: statutes in the states (not yet federal) designed to combat "strategic lawsuits against public participation."

I've written about anti-SLAPP many times.  I'm not a fan of the statutes.  The OTM piece is good and important, but it tells only one side of the anti-SLAPP story.  That's a common, and forgivable, shortcoming in mass media coverage of itself.

Why I Care, and You Should Too

I've been a media advocate since I was hooked by my first high school journalism class in the 1980s (hat tip at Mrs. McConnell).  I've been a media defense lawyer and a defamation plaintiff, besides a classroom teacher of media law and the First Amendment.  My hang-up is justice, or the remediation of injustice (yes, I'm a J), and there's plenty of both in the way our news media work in the shadow cast by the shield of the First Amendment.  Advocating for the devil in my classroom, I was a critic of the Sullivan/Gertz actual malice standard decades before it became fashionable, or even socially acceptable in academic circles, to question the supposed sine qua non of free speech.

So when the media defense bar teamed up with state legislators to start piling on anti-SLAPP statutes as another death-blow weapon in the scorched-earth media defense arsenal in the late 1990s, I was skeptical from the get-go.  Upon the siren song of free speech absolutism, now decades on, Americans have fallen into the lazy habit of denying access to our courts to would-be plaintiffs who are genuinely victimized.  As a scholarly observer of tort law, I can tell you, bad things happen when people are systematically disenfranchised from justice.  What's worse, as empirical research has consistently told us for decades, and I confirm from my own experience, the ordinary defamation plaintiff is not the money-grubbing opportunist that tort reformers (or distorters) wish us to imagine; rather, what a defamation plaintiff usually wants, first and foremost, is the truth.  News media defendants might remember the truth from journalism school.

How did we get to a point that when a plaintiff and defendant want the same thing, it's still a zero-sum game?  If with the best of intentions, the U.S. Supreme Court in the civil rights era so distorted the state landscape of defamation law that media defendants lost all interest in compromise, even if the simple compromise is to correct the record and speak the truth.  Sullivan biographer Anthony Lewis recognized this problem in the penultimate chapter of his otherwise-paean to the case in 1992.  And this is why the 1993 Uniform Correction or Clarification of Defamation Act proved a profound failure.  The uniform law proposed using a First Amendment-compliant carrot rather than a constitutionally prohibited stick to coax media defendants to hear complainants out before facing off in court.  But, media defendants implicitly pleaded in response, why should we listen when we always win?

Anti-SLAPP laws are perfect for the thing they're perfect for: To shut down an obvious attempt to abuse the legal process with a sham claim when the plaintiff's true motivation is to harass or silence a defendant engaged in constitutionally protected speech or petitioning, especially when it's whistle-blowing.  "I know it when I see it" is why a South African judge recently allowed anti-SLAPP as an "abuse of process" defense even in the absence of a statute, shutting down a mining company's implausible suit against environmentalists.  Meanwhile, the American anti-SLAPP statute, the darling offspring of mass media corporate conglomerates and financially beholden legislators, tears through court dockets with no regard for the balance of power between the parties.

As a result, sometimes, like the infinite monkey who stumbles onto Hamlet, anti-SLAPP works.  Other times, David is summarily shut out of court at the behest of Goliath.  The dirty secret of the media defense bar is that it's pulling for the latter scenario more often than the former, because Davids pose a much greater threat to the corporate bottom line than the occasional, over-hyped monkey.

Squirrel!  SLAPPs Aren't the Problem

SLAPP suits only work because of a bigger dysfunction in tort law:  Transaction costs are way too high.  Lawyers and litigation cost too much.  (Law school costs too much, but that's another rabbit hole.)  Our civil dispute resolution system, in contrast with those of other countries, so prizes precision as to draw out civil proceedings to absurd expectations of time, energy, heartache, and money.  Too often, at the end of a litigation, both exhausted parties are net losers, and only the lawyers, on both sides, come out ahead.  The tort system is supposed to engender social norms and deter anti-social conduct through its compensation awards, not its overhead costs.  We've so contorted torts, especially when accounting for suits that are never brought, that the norm-setting and deterrent effects of transaction costs dwarf the impact of outcomes.

Anti-SLAPP tries to solve the problem of runaway transaction costs by summarily dismissing claims on the merits when a plaintiff cannot prove the case at the time of filing, usually without the benefit of discovery.  The game is rigged, because the evidence the plaintiff needs is in the possession of the defense.  So plaintiff's unlikely path to proof, already mined with common law and constitutional obstacles to press the scale down on the defense side, is well obliterated by anti-SLAPP. We could use this "solution" of summary dismissal across the board to cut back on tort litigation.  But people wouldn't stand for it in conventional personal injury, because then we'd be overrun with uncompensated and visibly afflicted plaintiffs, and the injustice would be undeniable.

If we dared have the creativity to experiment with more effective dispute resolution mechanisms as alternatives to tort litigation, we might best start with defamation cases, in which we know what plaintiffs want, and it's not money.  Yet here we are, hamstrung by the Supreme Court, disenfranchised by defense lobbyists, and forced to swallow the dangerous myth that we can have free speech only if we stand aside and let mass media deliver misinformation with impunity.

The Case of the Charity Exposé
and the Lamentations of the Media Defense Bar

In the April segment, OTM host and media veteran Bob Garfield interviewed Victoria Baranetsky, general counsel for the 501(c)(3) nonprofit Center for Investigative Reporting (CIR), about a lawsuit by also-501(c)(3) nonprofit Planet Aid against CIR.  The lawsuit arose from a 2016 series on the CIR Reveal platform, in which CIR alleged abuse of charitable status by the organization through, inter alia, improper diversion of donor funds.  A California federal judge dismissed the 2018 complaint in March 2021, and Planet Aid, which is appealing, and CIR have very different takes on what that dismissal meant.  Planet Aid emphasizes "46 statements" in the reporting that the court found false, notwithstanding anti-SLAPP dismissal, while CIR emphasizes "several million dollars" of legal costs, "vastly exceed[ing] ... insurance coverage" and impossible to pay without pro bono aid.

CIR is not an outfit that publishes without doing its homework.  So without opining on the merits of the lawsuit, I admit, my gut allegiance in the case tends to CIR.  And I think it's OK that OTM interviewed only Baranetsky.  "Balance" as a journalistic value too often feeds the "talking heads" phenomenon we know from the disintegration of television broadcast journalism.  OTM's report was about the toll of litigation on journalism, not the merits of the CIR stories.  Looking, then, at the OTM story, I find that a side was missing, but it wasn't Planet Aid's.  Missing is reasoned resistance to the anti-SLAPP craze.  Here, then, are my reflections on five media lamentations in the OTM story about anti-SLAPP.

Lamentation Over Forum Shopping

(1) Baranetsky lamented that Planet Aid was permitted to sue in Maryland, where the law was advantageous to a plaintiff, and CIR was forced to incur major costs to move the case to California, where anti-SLAPP law is more protective.  Federal anti-SLAPP would fix this problem.

Forum shopping is a problem, but not specially a media defense problem.  Barring defamation victims from redress equally across the states isn't better than barring them one state at a time; i.e., 50 wrongs don't make a right.  Rather, everything that's wrong with anti-SLAPP would be multiplied by a federal statute.  Plaintiff's choice of forum does aggravate costs, and that allows forum shopping to be used improperly as a SLAPP tool.  The answer is to change how we manage forum selection in federal civil procedure to stop the externalization of costs to defendants and to compel professionalism in the plaintiffs' bar—not to put a thumb on the scale of merits in lawsuits, even SLAPPs.

Moreover, in overriding state court discretion to hear defamation actions on the merits, a federal anti-SLAPP statute would double down on the entrenched Sullivan/Gertz paralysis of the tort system that's precluding the development of innovative alternatives.  Our problem in defamation law is not lack of uniformity in the states, but precisely the opposite, lack of diversity that would generate new approaches.

Lamentation Over the Burdens of Discovery

(2) Baranetsky lamented that California federal courts have allowed limited discovery before dismissing cases under California anti-SLAPP law, thereby upping the costs of money and time for media defendants and mitigating the efficacy of anti-SLAPP. 

Notwithstanding the present debate in the Courts of Appeal over whether state anti-SLAPP laws can displace federal court process, anti-SLAPP puts defamation plaintiffs in a no-win scenario, especially when the plaintiff is a public figure.  Under Sullivan/Gertz, a public-figure plaintiff can prevail only by proving subjective knowledge or intent on the part of the defendant to publish falsity.  Subjective culpability lies only in the mind of the defendant.  Without precogs, we prove subjective culpability with circumstantial evidence.  When the defendant is a mass media organization, that evidence is in the possession of the defendant.  Even in a negligence case with a private-figure plaintiff, it is impossible to probe the culpability of the defendant when the plaintiff has no knowledge of the defendant's internal process, even the identity of a staff editorial writer, for example.

Yet along comes anti-SLAPP to demand (in the usual formulation) that a plaintiff prove likelihood of success on the merits with evidence that the plaintiff could not possibly possess.  Win-win for the media defense, lose-lose for access to justice.  Baranetsky bemoaned the costs, tangible and intangible, of discovery, especially on a nonprofit media outlet.  With that complaint, I am sympathetic.  Again, though, the answer is to change the process to control transaction costs.  The long reach of American discovery is globally infamous and socially problematic in ways well beyond the woes of media defendants.

Baranetsky raised the further point that the permitted discovery was one-sided, so CIR was not able to use discovery to bolster what might be a winning affirmative defense, such as truth.  I take this point, too.  I have some concern about the potential for a media organization—imagine not CIR, but a more partisan and unscrupulous outfit—to misuse discovery to further ill intentions.  But courts can and should control the scope of discovery with appropriate protective orders.   

Lamentation Over Interment by Paper

(3) Baranetsky lamented that the Planet Aid "complaint was about 66 pages, almost 70 pages long.... [B]ecause our reporters did such extensive reporting, published on the radio, published online, there were a lot of remarks to pull in from a really substantive investigation. The complaint here was padded with all of those bells and whistles."  That again upped media defense costs and slowed down the anti-SLAPP process.  

I don't doubt that the complaint was longer than it needed to be.  Plaintiffs anticipating high-profile litigation—by the way, including agenda-seeking litigators from both left and right, as well as state attorneys general—routinely plead "to the media" and to "the court of public opinion," rather than to the court of law.  Excessive pleading runs up defense costs, as well as court time, which is not fair to litigants or taxpayers.  Again, the answer lies in bar and bench control of process and professionalism, not in summary dismissal on the merits.

More importantly, to some extent, a defamation plaintiff's claim in a case over a series of reports must be lengthy, for a very reason Baranetsky said, and not because the plaintiff wants it that way.  It's not "padding," "bells," or "whistles."  Defamation plaintiffs are compelled by rules of pleading to commit a perverse self-injury by republishing the defamation of which they complain.  Thereafter, mass media entities are permitted to restate the defamation as a fair report of a public record, almost with impunity.  As a result, often, the defamation is amplified, and the plaintiff's suffering is vastly compounded.  Even if the plaintiff wins the case, compensation for this added injury is disallowed, and no media entity can ever be compelled to correct or update the record by reporting that the plaintiff later prevailed upon proof of falsity.

In my own plaintiff's case, precisely this happened.  Among countless national outlets, The New York Times reported the defamatory allegations I republished in the complaint, but never covered the case again, despite my entreaties to the reporter and ombudsperson.  To this day, I overhear innuendo based on the Times story with no reference to my later exoneration, which was reported in only one excellent-but-niche publication.  In my experience with would-be defamation plaintiffs, I have seen that this risk alone prevents a victim from seeking redress as often as not.  Once again, we could answer this problem by reforming pleading in defamation, rethinking what "fair report" means in the digital age, and experimenting with dispute resolution, if only Sullivan/Gertz left the defense bar with the slightest incentive to participate.

Lamentation Over Litigiousness

(4) In his introduction to the case, Garfield said, "Without offering evidence to rebut the allegations, the charity promptly sued the news organization for libel."

OTM itself walked back this characterization of Planet Aid's lawsuit as a blindside attack.  An OTM editor's note to the story posted online added that, according to a PR firm representing Planet Aid, the organization "reached out to [CIR] prior to filing its lawsuit asking for a retraction and correction."

I don't know whether Planet Aid's version is right, or OTM's, or maybe the demand letter got lost in the mail.  As I've indicated, I'm not rushing to sign up Planet Aid as my poster child for the Anti-SLAPP Resistance.  But OTM's post hoc characterization of events is, to my experience, typical of media-defense-bar spin.  In reality, rare in the extreme is the case that there is not at least a demand letter and response.

In my own plaintiff's case, I filed suit as late as possible, on the eve of the expiration of the statute of limitations.  I sought to diffuse the disagreement through every possible avenue, both vis-à-vis my defendants and through negotiation with a third party.  Yet when my case turned up years later in a book by an academic colleague, Amy Gajda, she used my case to support the book's thesis that alternative dispute resolution mechanisms on university campuses would help to avert lawsuits by litigious academic plaintiffs like me.  I don't dispute (or support) that thesis in the abstract, but my case did not support it.  Gajda suggested that I rushed to sue, without probing alternatives, which was utterly false.  In fact, it was the refusal of my potential defendants to come to the table—the very problem of Sullivan/Gertz inhibition of dispute resolution—that forced me into a lawsuit as an undesired last resort.

Gajda, by the way, is herself an award-winning journalist and scholar of media law.  Yet she readily contorted the procedural facts of my case to fit her expectations without ever asking me what happened.  We know each other, and I'm not hard to find.  If a top-flight journalist can be so sloppy with the facts in a case about a professional colleague, and I have to lump it, what chance does a lay soul in private life have to correct the record on something that really matters, as against a professional media outlet with a partisan agenda and lawyers on retainer?

How simple it is to make assumptions and feed the tort reformer's myth that greedy plaintiffs eagerly sue at the drop of a hat.  Yet no one properly counseled by an experienced attorney chooses a lawsuit as a first course of redress.  To the contrary, defamation victims, especially in matters as difficult to win as media torts, typically cannot find an attorney willing to take the case at the opportunity cost of sure-thing personal-injury money, and certainly not on contingency.  Plaintiffs wind up not suing for that or many other reasons unrelated to their real losses.  Other reasons include the risk, under anti-SLAPP fee-shifting, of having to pay attorneys' fees to a corporate media defendant's high-priced lawyers—not because the plaintiff wasn't defamed, but because the plaintiff could not meet the enhanced burdens to overcome a First Amendment defense.  Other reasons also include the stigma associated with being a plaintiff in America, a stigma perpetrated by corporate advocates of tort reform and conveniently perpetuated by would-rather-not-be defendants in the media business.

Lamentation Over the Price of Free Speech

(5) Baranetsky opined, "We have to be wary of defamation law being used by public figures and politicians and wielded in ways that can be used retributively. At the same time, make sure that lies aren't being spread.  The hope is that anti-SLAPP laws are really, they're the precise scalpel that's supposed to sharply and acutely figure out which falls on which side of the line."

That's a profound misapprehension of anti-SLAPP laws.  There is nothing about anti-SLAPP that is precise or acute.  Very much to the contrary, anti-SLAPP is designed to be a blunt instrument that stomps out litigation before it can get started, looking scarcely at the quantum of evidence on the merits and rounding down in favor of the defense.  Anti-SLAPP operates upon the very theory of Sullivan/Gertz, which is that the price of free speech is the prophylactic annulment of meritorious claims and the tolerance of misinformation.  The theory of anti-SLAPP is that we don't want to know the truth, and would rather abide falsity, when the cost of disentangling truth and falsity is inconveniently excessive.

Baranetsky's take on anti-SLAPP is ironic in the extreme.  The Sullivan/Gertz constitutionalization of state tort law is based on the age-old argumentative hypothesis of moral philosophy that "the truth will out" in the marketplace of ideas, so the courts ought not intervene to abate falsity.  That proposition has been vigorously refuted by scholars as demonstrably erroneous.  And CIR's very motto, splashed on a home page banner, is: "The truth will not reveal itself."

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I've identified areas of tort law that need reform—abuse of forum selection, excessively broad discovery, permissiveness of fact pleading—and areas of defamation law in particular that need reform, procedural and substantive—pleading requirements, fair report protection, culpability and proof standards, plaintiff access to representation, and availability of alternative dispute resolution—but are paralyzed by federal capture of common law and media defense intransigence.

Let me not understate my appreciation for OTM, WNYC, CIR, and all kinds of nonprofit journalistic enterprises.  I am grateful that CIR did the reporting that it did on Planet Aid, and for the reporting that OTM does all the time on threats to public interest journalism.  I am fearful of a world in which that reporting does not happen.  

Nevertheless, I object to a legal standard that presumes news media have the corner market on truth.  If our system of civil dispute resolution is broken, and I think it is, then we need to fix it.  Anti-SLAPP is at best a patch to paper over unsightly symptoms of our dysfunction, and, too often, it does so at the expense of genuine victims.  Our willingness to ignore injury says more about the sorry state of our democratic character than does our blind fealty to an unbridled press.

At the annual meeting earlier this year of the Communications Law Forum of the American Bar Association, a famously media defense-identifying conference, I heard whispered for the first time some cautious and reluctant concern that media defendants holding all the cards in tort litigation might—wait, is this a secure channel?—might not necessarily be the best strategy to ensure the freedom of speech and to protect the flow of truthful information in America, especially in the digital age.

Now where have I heard that before?

Big Oil deploys slick strategy to stay ahead of liability

Image by Ucheke CC BY-SA 4.0

On February 12, the UK Supreme Court allowed a claim of environmental catastrophe by 40,000 to 50,000 Nigerian farmers to proceed in English courts against defendant Royal Dutch Shell.  The ruling came just two weeks after farmers prevailed in a significant but more limited case against Shell's Nigerian subsidiary in a Dutch appellate court in The Hague, after 13 years of litigation, and eerily echoes the still unfolding saga of the Chevron-Ecuador battle over Lago Agrio in the Amazon.

I'm compelled to mention the UK case, though it has been covered exhaustively in the media (e.g., N.Y. Times), because I wrote just last week on the controversial scope of "alien tort" liability in U.S. courts.  The case against Royal Dutch Shell ("Shell"), for devastating oil pollution in the Rivers State of the Niger Delta, is a kind of alien tort case in UK and Dutch courts.  In the UK, no specific statutory authorization is required to sue Shell, which is incorporated in the UK and headquartered in The Hague.  Rather, jurisdiction may be invoked upon the plaintiffs' demonstration of a duty in common law tort owed by the defendant company.

UK Supreme Court
(photo by M. Zhu CC BY-NC-ND 2.0)

The UK ruling is preliminary only; the court held that the plaintiffs demonstrated a "real issue to be tried," the preliminary standard, over the role of Shell in the pollution. The nub of the problem for the plaintiffs is that operations in Nigeria were run by, and not exclusively owned by, a subsidiary corporation of Shell, the foreign-registered Shell Petroleum Development Company of Nigeria Ltd. (SPDC).

The corporate shell is designed specifically to insulate the parent company against liability for the conduct of the subsidiary.  To penetrate the shell and reach the parent, the plaintiffs must show that Shell, the parent company, directed the conduct of SPDC, the Nigerian subsidiary, or worked jointly with SPDC.  The court in The Hague allowed jurisdiction upon a comparable control theory in 2015, though ultimately entered a monetary judgment only against SPDC.

The preliminary ruling from the UK Supreme Court does not yet establish direction or joint control, but says that the plaintiffs have made a sufficient showing to serve their lawsuit on Shell.  Rather than digging into the facts, the Supreme Court faulted the courts below, both the majority that had rejected the plaintiffs' claim and the dissent, for looking too closely at the plaintiffs' evidence and effecting a sort of "mini-trial" on the question of Shell control before the case has even been pleaded properly.

Nchanga Copper Mine, Zambia, 2008
(photo by BlueSalo CC BY-SA 3.0)

Environmental damage and human toll in the developing world as a result of resource extraction by western corporations is, sadly, not a new problem, and the UK Supreme Court invoked its experience in a prior case.  In 2015, plaintiffs in Zambia won the right to sue UK-based Vedanta Resources upon allegations that copper smelting had poisoned the water supply with "rivers of acid," containing sulfuric acid and other dangerous toxins.  The cooper operation in Zambia was owned by a Vedanta subsidiary, Konkola Copper Mines.  After the Supreme Court allowed suit in England, Vedanta settled with more than 2,500 Zambian claimants.

Vedanta was decided in the spring of 2019, and only then, after the lower courts had rejected the claims against Shell, did the Supreme Court admonish judicial restraint on questions of fact in preliminary proceedings and set out an approach to analyze parent-company duty: "depend[ing] on the extent to which, and the way in which, the parent availed itself of the opportunity to take over, intervene in, control, supervise or advise the management of the relevant operations (including land use) of the subsidiary."

Niger Delta, Nigeria
(ESA photo CC BY-SA 3.0)

In pleadings and on appeal, the plaintiffs asserted a dozen bases in fact to demonstrate Shell control of SPDC, including mandatory compliance standards for subsidiaries on health, security, safety, and environment; business principles; and best practices for assets, facilities, and infrastructure.  According to the plaintiffs, "[Shell's] executive remuneration scheme depended to a significant degree on the sustainable development performance of SPDC."  The plaintiffs alleged that Shell "for many years had detailed knowledge about widespread pollution in the Niger Delta caused by spillages and leakages of oil from infrastructure operated by SPDC, including knowledge of the frequency, location and size of oil spills, including its failure to protect its oil infrastructure against the risk of damage caused by the criminal acts of third parties."

According to the New York Times report on the case, Shell is retreating from investments in the Niger Delta and other sites near human habitation, preferring to drill offshore.  Meanwhile, disputes endure over responsibility to clean up the pollution left behind by extraction and over the efficacy of cleanup efforts.  In this way, the Nigeria case is strikingly similar to others in the world, notably, the long-running dispute between rain-forest communities in Ecuador and oil giant Chevron, successor to Texaco.

In the case against Chevron, an Ecuadorean court in 2011 ordered Chevron to pay $9.5bn to residents of Lago Agrio, a community in the Amazon, for catastrophic oil pollution there.  In 2014, a U.S. federal court ruled that the judgment was procured through fraud, and the plaintiffs' champion U.S. attorney, Steven Donziger, was disbarred in 2020.  The plaintiffs' efforts to collect on the award in courts with jurisdiction over Chevron assets in other countries, such as Canada and Argentina, have failed so far.  Donziger is appealing his disbarment while also facing contempt prosecution in New York.  Celebrity environmentalists continue to hail him as a hero, railroaded by Big Oil.  Meanwhile a district court in The Hague has demanded (subscription), pursuant to arbitration, that Ecuador nullify the judgment, and the matter continues to haunt Ecuador's destabilizing presidential elections.

For the third time, I'm having my comparative law class read Paul M. Barrett's Law of the Jungle, which chronicles the Chevron-Ecuador matter until the book's 2015 publication.  For my money, Barrett's is the most even-handed account out there.  (See also coverage by Michael I. Krauss for Forbes.)  And it's not flattering of Donziger.  But it's also not flattering of Texaco.

The complicated truth of what happened at Lago Agrio is a tragedy in multiple dimensions, generating plenty of blame to go around.  Donziger might have played fast and loose with the law in Ecuador, after being rebuffed in the United States, but he was navigating the outstretched hands of a sorely corrupt judiciary.  The devastation at Lago Agrio is real, and no one, oil firms or government, has ameliorated it.  At the same time, much, if not most, of the pollution can be traced directly to the national oil company of the Ecuadorean government, which at various relevant times bore exclusive or joint responsibility for Lago Agrio.  Even insofar as Texaco controlled the site, government regulators, also riddled with corruption, were utterly derelict in their duty to protect fundamental human rights and enforce industry norms.  To date, the people of Lago Agrio, maybe the only innocent actors in the whole story, have been left to struggle with the horrific health consequences and daily challenges of water and land contaminated by lethal toxins.

In Nigeria, Shell and SPDC also lay blame on the Nigerian government, a partner of SPDC in the extraction operation through the state-owned Nigerian National Petroleum Company.  I have no doubt that the government bears responsibility both for what it did as an owner and what it did not do as a regulator.  I wager that Shell and SPDC, like Texaco and Chevron, are guilty of conscienceless exploitation, but also behaved as rational corporate actors, splitting the difference between the costs of malfeasance and the benefits of non-regulation.  Like in Lago Agrio, the people of the Niger delta are left to endure the consequences of symbiotic opportunism, while the perpetrators point their fingers at each other.

Shell corporate building in The Hague
(photo by Mr. Documents Uploader CC BY-SA 4.0)

Maybe the concept of "alien tort" in the UK is turning the tide at last.  One might expect Shell to follow Vedanta's example and settle, for public relations reasons, if nothing else.  Reuters reported that Shell settled another Niger Delta pollution claim in British courts in 2015 for €70m.  Shell has consistently pledged to clean up Niger Delta pollution, even while disavowing responsibility.  But Shell did not settle the case in the Netherlands, where the company has been able to postpone liability for 13 years to date.  The AP reported that two of four farmer-plaintiffs died since the case there was filed in 2008.  An appeal to the Dutch Supreme Court may yet be filed, and Big Oil might be emboldened by Chevron's experience.

Rivers State, Nigeria
(image by Jaimz height-field CC BY-SA 3.0)

If Shell digs in its heels in the UK, the plaintiffs have an uphill battle ahead.  They will have to produce clearer evidence to persuade the trial court that Shell exercised control at the local level, and then to link Shell oversight to the pollution in proximate causation.  Shell, fairly, will seek to muddle the chain of causation with the intervening actions of venture partners, private and public, and the third-party actions of criminals who sabotaged and burglarized the oil pipeline.  The Dutch appellate court mitigated the plaintiff-farmers' win there by nullifying defense liability in part for the actions of saboteurs, even while recognizing with regard to one claim that SPDC made nefarious access to the pipeline too easy.

If ever there is a settlement or award for plaintiffs that turns ripe for enforcement, it will remain to be determined how effectively money can be converted into remediation in a legal regime whose wavering commitment to the rule of law has been complicit in damage to the Niger Delta environment for the six-decade duration of the nation's independence.  To the plaintiffs' favor, for now, in the UK, their case is informed by their experience in The Hague, where the trial court afforded plaintiffs latitude to probe Shell files for evidence of corporate control.

The case in the UK Supreme Court is Okpabi v. Royal Dutch Shell Plc, [2021] UKSC 3 (Feb. 12, 2021).  Lord Nicholas Hamblen delivered the opinion, with which Lord Hodge, Lady Black, and Lord Briggs agreed.

UK court: Long arm of GDPR can't reach California*

Image my composite of Atlantic Ocean by Tentotwo CC BY-SA 3.0

and "hand reach" from Pixabay by ArtsyBee, licensed

*[UPDATE, Jan. 30, 2022:] On December 21, 2021, the Court of Appeal allowed service on U.S. defendants without ultimately resolving the GDPR territorial scope question.  Read more from Paul Kavanaugh, Dylan Balbirnie, and Madeleine White at Dechert LLP.]

A High Court ruling in England limited the long-arm reach of European (now British) privacy law in a suite of tort claims against Forensic News, a California-based web enterprise doing "modern investigative journalism."

The complainant is a security consultant investigated by Forensic News and a witness in the U.S. Senate Intelligence Committee probe into Russian interference in the 2016 U.S. elections.  A British national, he accused Forensic News of "malicious falsehood, libel, harassment and misuse of private information," the latter based on violation of the British enactment of the European General Data Protection Regulation (GDPR).

The extraterritorial reach of the GDPR has been a hot topic lately in privacy law circles, as U.S. companies struggle to comply simultaneously with foreign and burgeoning state privacy laws, such as the California Consumer Privacy Act (CCPA).  

Forensic News has no people or assets in the UK, but the complainant tried to ground GDPR application in the news organization's website, which accepts donations in, and sells merch for, pounds and euros.  No dice, said the court; it's journalism that links Forensic to the plaintiff and to the UK, not the mail-order side show.

The case is Soriano v. Forensic News LLC, [2021] EWHC 56 (QB) (Jan. 15, 2021).  Haim Ravia, Dotan Hammer, and Adi Shoval at Pearl Cohen have commentary.

Mary Trump sues President, family, alleges three decades' fraud in oversight of her father's estate

Author of Too Much and Never Enough (2020), Mary L. Trump on Thursday sued her uncle, the President, and her aunt, retired federal judge Maryanne Trump Barry, for ongoing fraud and breach of fiduciary duty in oversight of the estate of Mary's father, Fred Trump, Jr., since his death in 1981.

The case comes just two months after a failed bid by presidential brother Robert S. Trump to enjoin publication of Mary's book, and one month after Mary's release of audio recordings in which her aunt condemned the President. Considering the First Amendment and the futility of last-minute injunction, the court in the earlier case refused to enforce the confidentiality provisions of a family agreement that settled litigation arising from the deaths of Robert, Maryanne, and the President's parents, Mary's grandparents, Fred and Mary Anne, in 1999 and 2000. Robert S. Trump died on August 15, 2020. Try to keep up.

To navigate the statute of limitations, Mary Trump alleges that she only became aware of the fraud upon the publication of investigative journalism by The New York Times in 2018 (pay wall; about).  Links to the dockets, the complaint in the latest Mary L. Trump case, and the court decision denying injunction in the Robert S. Trump case are now posted at the Trump Litigation Seminar blogsite, a project of The Savory Tort. HT @ TLS students Spencer K. Schneider and Richard Grace. 

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

Notice of Removal in Carroll v. Trump

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

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

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

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

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

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

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

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

Trump litigation in legal education: Come for the car wreck, stay for the seminar

Coinciding with the U.S. presidential election in the fall semester of 2020, August to November, I'll be teaching a 15-student seminar in "Trump Litigation."

Donald J. Trump is a phenomenon in U.S. litigation, principally litigation over obligations (contract and tort).  He and his enterprises are infamously litigious; perhaps the most comprehensive analysis of Trump litigation is USA Today's remarkable compilation of data from more than 4,000 cases, by investigative journalist Nick Penzenstadler and team.  This vast body of litigation offers at once a deep sea in which one can dive into the doctrine of torts, contracts, and civil procedure, and an opportunity to ask the big questions I relentlessly press on first-year law students, such as whether the common law litigation system represents a pinnacle in human achievement in dispute resolution, or a disastrous failure.

No one knows now whether Donald Trump will be "a thing" after January 2021.  So I thought this fall would be an optimal time to capitalize on the Trump phenomenon as a teaching opportunity.  Here is the short course description:

Trump Litigation Seminar.  Investigation of civil court cases involving Donald Trump, and his family and businesses, in personal rather than public capacities. In tandem with the 2020 election cycle, this seminar invites students to examine public litigation files to study advanced doctrine in obligations law, to witness litigation skills and strategy, and to analyze public policy in American civil dispute resolution. Final paper.

As described, this seminar is calculated to be something of a capstone experience for third-years, comprising threads of doctrinal study, litigation skills, and discussion of theory and policy.

As I previewed to co-panelists at the Law and Society Association and the Southeastern Association of Law Schools conferences in 2019, my plan was to create an open-source course module that would be ready in summer 2020 for adoption, in part or in whole, by faculty in law, political science, mass communication, or other areas, exploiting the same fall time frame to explore Trump litigation with students.

Unfortunately, that summer project won't happen.  The University of Massachusetts Dartmouth found itself in a budget crisis after refunding student fees for room and board amid the coronavirus lockdown.  To help fill the hole, UMass Law canceled faculty compensation for summer 2020.

I plan still in the fall to use a blog page, ancillary to The Savory Tort and in conjunction with Dropbox cloud storage, to furnish resources for my seminar students.  To the extent that there might be any utility in those materials for anyone else, I am making the page public.  I will adapt and populate the page as I prepare the materials.  I have invested considerable effort in amassing and organizing litigation files on a range of key Trump cases, and it seems a shame to hoard them for my class, when they might be useful to others, whether for teaching, research, reporting, or just civic interest.

My focus here, again, will be to support my seminar, not, as originally planned, to support an open-source course module.  So I reserve the latitude to post what I want when I want to, and to make changes as it suits the needs of my class.  The page probably will undergo a lot of changes between now and when class starts in the second half of August, and more yet as the class develops in the fall.  That said, if you are a teacher, researcher, or journalist in need of something it looks like I might have but have not posted, or you have questions about what I've posted, please do reach out, and I'll help if I can—my availability being spotty while away from my desk until August 17.

Welcome to the Trump Litigation Seminar.

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:

• Oral argument in Oakland v. BP (9th Cir. argued Feb. 5, 2020)
• Complaint in Missouri v. PRC (E.D. Mo. filed Apr. 21, 2020) (item 1)
• The English Game (Netflix 2020)

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.

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:

• Heather Goldman, Bryan Cave Leighton Paisner, Washington, D.C.,
• Rachel Matteo-Boehm, Bryan Cave Leighton Paisner, San Francisco,
• Christine Walz, Holland & Knight, New York, and
• Michael Grygiel, GreenbergTraurig, New York.