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.

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.

Attorney Scaturro talks monument metrics

Grant monument in Chicago (image CC BY-SA 3.0)

Attorney Frank Scaturro has written an in-depth, four-part-essay series on monument destruction for Emerging Civil War, a platform "for sharing original scholarship related to the American Civil War."  Here is part one, and here are links to all four parts.

Scaturro is president of the Ulysses S. Grant Monument Association and is working on a book about "New York City’s largely forgotten sites from the founding era."  I quoted Scaturro writing about Grant's civil rights record here on the blog back in November.  I put a couple of my own coins in the monument meter in October.

Court: UK hospital's mishandling of corpse after suspicious death violated human rights convention

St. James's Hospital is among those managed by the Leeds group

(image by CommsLTHT 2020 CC BY-SA 4.0).

From the eastern shore of the pond comes an unusual spin on the tort of mishandling a corpse.

The usual mishandling case invokes the longstanding common law exception to the rule against recovery in negligence for emotional distress in the absence of physical injury to person or property.  There was more at stake in this case, as The Guardian explained:

The family of a woman whom they suspect was killed has won a lawsuit against a health trust that allowed her body to decompose to the point that experts were unable to rule out third-party involvement in the death ....

The court ruled that the Leeds, England, hospital violated Article 8 of the European Convention of Human Rights, on the right to respect for private and family life.

The case is Brennan v. Leeds Teaching Hospitals NHS Trust, per High Court Judge Andrew Saffman.  I cannot locate the opinion online.  Besides The Guardian, there is more coverage at the Yorkshire Evening Post and Wharfedale Observer.  Hat tip to Professor Steve Hedley's Private Law Theory.  See also Professor Eugene Volokh's compelling 2019 missive on "the tort of loss of sepulcher."

FDA reg doesn't preempt state medical device liability, but plaintiff must plead 'plausible' theory, Court says

PainDoctorUSA CC BY-SA 4.0

Medical-device liability claims in state courts are not preempted by federal law, the Massachusetts Supreme Judicial Court confirmed Friday, but the plaintiff before the Court failed to meet the pleading standard.

Seeking relief from the pain of osteoarthritis, Plaintiff Dunn received in her knees two injections of "Synvisc-One," a product of defendant Genzyme Corp. and an FDA-approved "Class III medical device," the Court retold.  Subsequently, she "experienced severe side effects, including 'pain and swelling in her knees, difficulty walking, hip bursitis and systemic pseudoseptic acute arthritis," resulting in falls and injuries, including a torn meniscus and broken neck.

The plaintiff sued Genzyme in negligence and product liability and under Massachusetts consumer protection law.  Commonly called "93A," after its codification, the latter theory of unfair or deceptive practices is favored by plaintiffs' lawyers for its allowance of punitive damages upon an up-to-treble multiplier.  Massachusetts allows punitive damages only upon statutory authorization, and 93A is generous, tracking tort liability theories, including product liability, that would not be thought of as statutory consumer protection in other states.

The U.S. Supreme Court ruled in 2008 that state law claims are not necessarily preempted by regulatory approval under the 1976 Medical Device Regulation Act (MDA).  To survive preemption, a plaintiff's claim must parallel, and not exceed, federal regulatory requirements.

Justice Gaziano

Applying the Supreme Court standard, the SJC determined that the plaintiff's claims met the standard.  Specifically, "negligent failure to warn, breach of warranty, negligent manufacture, products liability, and violations of [chapter] 93A—all can be interpreted as coextensive with the comprehensive Federal requirements."

Contrary to implication by the defense, the SJC held that a plaintiff asserting medical-device liability in parallel with the MDA is not required to plead with the high level of particularity (Rule 9(b)) required in fraud.  Rather, the requisite pleading standard is "plausibility": "plaintiffs asserting parallel State-law claims based upon a violation of FDA regulations must articulate only "factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief" (quoting SJC precedent).

Nevertheless, the plaintiff failed to meet that standard.  The complaint alleged foreseeability of "significant dangers," known or reasonably knowable "dangerous propensities," and, as an alternative theory, adulteration or defect of the product.  But the plaintiff alleged no factual support for causation linking the injection to the injury other than "temporal proximity."  Evidence of other complaints about the product would have helped, the Court suggested.  But deficiency of pleading does not entitle a plaintiff to discovery.

Accordingly, the Court reversed the trial court's denial of the defense motion to dismiss.

The case is Dunn v. Genzyme Corp., No. SJC-12904 (Mass. Jan. 29, 2021).  Justice Frank M. Gaziano authored the opinion of the unanimous Court.

Court: Employer has no free speech right to republish worker healthcare data that state provides conditionally

Confidential (Nick Youngson Alpha Stock Images CC BY-SA 3.0)

An employer has no First Amendment right to republish the identity of workers who relied on publicly subsidized healthcare when the state provides the names conditionally, for restricted use, the Massachusetts Appeals Court held yesterday.

A state program imposed assessments on employers whose employees relied on publicly subsidized healthcare.  The state offered to tell the employer which employees triggered assessment, so that the employer could review, and if appropriate challenge, the assessment. But the names came with strings attached: employers were required to promise that they will use the names in the administrative process only and not republish them.

Emerald Home Care, Inc., challenged the assessment program and conditional disclosures as violative of procedural due process and the First Amendment.

Affirming the Superior Court, the Appeals Court rejected both arguments.  As to due process, the state provided employers ample notice and opportunity to be heard in resisting the assessments.  As to the First Amendment, the state may attach conditions to access to confidential information.

In the First Amendment analysis, the court cited two U.S. Supreme Court oldies but goodies: LAPD v. United Reporting (1999) and Seattle Times v. Rhinehart (1984).  In LAPD, the Court allowed a statute to condition access to criminal histories on non-commercial use.  In Seattle Times, the Court allowed a protective order on discovery disclosures in a defamation-and-privacy case in which a newspaper was the defendant.

Justice Desmond

The Appeals Court applied intermediate scrutiny, drawn from Seattle Times.  The court reasoned that confidentiality in healthcare insurance information is an important state interest, and the restrictions on disclosure were closely tailored to the purpose of maintaining confidentiality while allowing the employer limited access for the purpose of administrative review.

The case is not remarkable for its holding, but it marks an ongoing tension between U.S. and foreign law over free speech, privacy, and data protection.  In the United States, the First Amendment often is a wrench in the works of government efforts to regulate information downstream from its disclosure to a third party.  Legal systems elsewhere in the world are more comfortable with the notion that a person's privacy rights may tag along with information in its downstream transfer from hand to hand, outweighing the free speech right to republish.

I noted some years ago that in some areas of U.S. law, including freedom of information (FOI), or access to information, we can see examples of American privacy expectations that accord with, not diverge from, European norms.  Downstream control by contract has been a key advancement in making some jurisdictions willing to furnish court records to information brokers.  Binding a broker to adjust records later as a condition of receipt helps to solve problems such as expungement, the American judiciary's equivalent to the right to be forgotten.

The case is Emerald Home Care, Inc. v. Department of Unemployment Assistance, No. AC 20-P-188 (Mass. App. Ct. Feb. 2, 2021).  Justice Kenneth V. Desmond Jr. authored the opinion for a unanimous panel that also comprised Chief Justice Green and Justice Lemire.

Collateral to drug-testing race discrimination suit, Boston wins chance to demand indemnity by lab

National Archives

Is hair-follicle drug testing racially discriminatory?

That was not the question before the Massachusetts Supreme Judicial Court Friday, but the Court's decision ancillary to that disparate-impact civil rights question is instructive on indemnity.

The civil rights claim in this case was filed in 2005 and still is in litigation in federal court.  Plaintiffs in that suit are eight police officers, a police cadet, and an applicant for a 911-operator job who suffered adverse action after testing positive in hair-follicle drug tests administered by the City of Boston.  Seven of the officers were fired for cocaine-positive results.

The plaintiffs, all African American, deny drug use.  They assert that the test is inaccurate and "disproportionately yielded false positives for people of color, resulting in disparate impact by race," the SJC wrote Friday.  "During the eight years for which the plaintiffs present data, black officers and cadets tested positive for cocaine approximately 1.3% of the time, while white officers and cadets tested positive just under 0.3% of the time," the First Circuit wrote in 2014.

The city won summary judgment twice in the trial court, yet the First Circuit twice found error, in 2014 and in 2016, and remanded for further proceedings.  The case, Jones v. City of Boston, remains in the district court, though the docket shows no activity on the merits since the latter remand, suggesting a resolution might have been reached.

The instant case is a dispute in state court between the city and the test provider, Psychemedics Corp.  In the city's contract with Psychemedics, the company promised "to 'assume the defense of' the city, and to 'hold [it] harmless' from all suits and claims arising from 'wrongful or negligent' acts by Psychemedics."  After suit was filed against the city, it went to Psychemedics to talk defense.  It's not clear that the two ever got on the same page.  Psychemedics seemed to regard the suit as outside the scope of the indemnity and regarded its obligations fulfilled by offering the city technical assistance on the science.

Then, as the SJC recounted flatly, "Ten years passed."  In 2017, the city started looking around for help with its long mounting legal expenses and set its sights on Psychemedics.  "What?!" Psychemedics said.  I paraphrase.  Psychemedics sued for declaratory relief, and the city counterclaimed for breach of contract and related theories.

The case boils down to an indemnitee's duty to notify an indemnitor of the need to defend.  An indemnitee, the Court held, "must give the indemnitor 'notice and an opportunity to defend.'  The indemnitee then must allow the indemnitor to take over the defense (if it attempts to do so), and must not later block the indemnitor from doing so."  Parties are free to contract specifics, but in the absence of other specification, "'no particular form of words is necessary' to present notice and the opportunity to assume the defense."  (Citations omitted throughout.)

Justice Lenk

The SJC vacated the trial court summary judgment for Psychemedics and remanded.  The trial judge had improperly decided questions of fact, inadvertently burdening the city with having to refute the company's assertions of fact.  The SJC rejected as unproved, as yet, a number of Psychemedics theories, such as that the city had declined the company's defense or had not litigated Jones in good faith as to protect Psychemedics from liability.

To my novice reading—I am no expert on insurance or indemnity—the city fairly invoked the company's duty to defend many times, and Psychemedics tried to weasel out.  Anyway, the SJC concluded that that was how the trial court should have looked at the case on summary judgment motion, because that was the position of the city, which was the non-moving party.

The case is Psychemedics Corp. v. City of Boston, No. SJC-12903 (Mass. Jan. 29, 2021).  Justice Barbara A. Lenk, since retired, authored the opinion of the unanimous Court.

See America in black and white

13th Amendment

With the imprimatur of federal law, today is National Freedom Day, celebrating the day that President Abraham Lincoln signed the joint congressional resolution proposing the 13th Amendment in 1865.  Congress passed the proposal the preceding day, and it was ratified on December 6, 1865.  Today also is the first day of African-American History Month.

With my comparative law class recently, I had the occasion to visit a classic treatment of race in Star Trek's original series.  We were studying "the perspective problem" in comparative research, which refers to the way a legal system (any social system) can look one way when studied by someone within it, and a different way when studied by an outside observer.

There's a scene in the 1969 episode "Let That Be Your Last Battlefield" (s3e15) that's been talked about for half a century even by social commentators outside science fiction and entertainment communities.  The theme of the episode is almost cliché insofar as it typifies the tendency of Star Trek creator Gene Roddenberry and 1960s showrunner Gene L. Coon to employ heavy-handed metaphor to effect social comment.  Still, the story is effective.

Gorshin with Lou Rawls in 1977
(Orange County Archives CC BY 2.0)

What cliché might have diminished was restored and then some by ferocious performances in Frank Gorshin (Bele) and Lou Antonio (Lokai).  Gorshin, who continued acting right up until his death in 2005, was already a well known villain to TV audiences in the 1960s, as Adam West Batman's Riddler.  Antonio had recently played chain-gang prisoner Koko in Cool Hand Luke (1967).  He followed up Star Trek with a four-decades-long career in TV directing that ranged from The Partridge Family and Rockford Files to legal classics Picket Fences, Boston Legal, and The Guardian, not to mention one West Wing.

The first scene below sets the stage; you only need about the first two minutes.  I'm sorry that CBS has labeled it inappropriate for children, so you have to open a new window to watch it.  I rather disagree; I recommend the clip especially for children, especially now, part of an essential diet of dialog about race and America.

The second scene below delivers the pièce de résistance.  I won't spoil it, in case it's new to you.

For social context, this Star Trek episode aired in January 1969.  Martin Luther King Jr. had been assassinated only nine months earlier.  While this episode aired, student protestors were occupying buildings at Brandeis University; they renamed them "Malcolm X University" and demanded the creation of an African-American studies department.  Stonewall, the moon landing, and Woodstock followed in the celebrated summer of '69.

Happy National Freedom Day.

New England poli sci group announces virtual meeting, extends CFP deadline for faculty, grad students

NEPSA art

The New England Political Science Association (NEPSA) has decided that its spring 2021 annual conference will be all virtual.

The call for proposals (CFP) deadline has been extended to February 19, 2021. NEPSA will convene on April 23 and 24, 2021.  The CFP is open to faculty and graduate students.  I have tremendously enjoyed this conference in past years and found it to be a collegial, inclusive, and supportive environment for scholars both junior and senior, and both political science and interdisciplinary, including law students. 

NEPSA subject-matter sections are: American Politics, Comparative and Canadian Politics, International Relations, Political Theory, Politics and History, Public Law, Public Policy, and Technology and Politics.