Friday, April 16, 2021

Dog Poop And Defamation

The dismissal of a defamation claim brought against a person who commented on a blog post was affirmed by the Iowa Supreme Court.


Plaintiff Richard Bauer (Bauer) resides in Sloan, Iowa, where he manages Bauer Apartments. The apartments are owned by the Kendall R. Bauer Trust for which he is the trustee. On September 22, 2015, Kathy Lynch (Kathy) began the construction of Pet Perfect LLC, a dog care facility, directly next to Bauer Apartments. Bauer became concerned issues were going to arise from the dogs and their feces due to the outdoor area being constructed. He contacted the Sloan City Council and asked for the city’s zoning ordinances. Bauer also contacted Kathy about his concerns and offered to buy the parcel of land where she was building the facility. She refused. He ultimately filed suit against the City of Sloan and the city council members claiming they failed to enforce a zoning ordinance.

No defamation

Here, the context of the speech begins with a Facebook post by Gabbie Lynch on her personal page. The post criticized [plaintiff] Bauer for expressing concerns about dog feces outside at Pet Perfect LLC. Several people commented on her post expressing their own opinions about Bauer. Bauer concedes in his briefing that none of the comments on the thread discussed the condition of the apartments or his managerial abilities. It would be more reasonable for a reader to understand Brinkman’s use of “slumlord” as a serious factual assertion if the Facebook thread related specifically to Bauer’s occupation and Bauer Apartments. However, the Facebook post and comments were individual’s emotionally charged responses to how they perceived Bauer’s actions in relation to Kathy’s business. As an example of the tone of the comments on the thread, the comment directly above Brinkman’s states, “Dear Mr. Bauer” followed by a photo with enlarged text stating, “Good morning. Don’t forget to drink your water and mind your own fucking business.” This context of an ongoing heated discussion on matters separate from Bauer’s role as a rental property manager lends support to the conclusion that Brinkman’s speech was name-calling and an insult rather than an assertion of fact. See Greenbelt, 398 U.S. at 13–14, 90 S. Ct. at 1541–42 (noting context of a heated public debate showed statement was rhetorical hyperbole rather than factual); Feld v. Conway, 16 F. Supp. 3d 1, 4 (D. Mass. 2014) (determining that a tweet calling the plaintiff crazy was a protected opinion when viewed in the context of an ongoing heated debate on the internet about the disappearance of the plaintiff’s horse).

An examination of the specific context of Brinkman’s Facebook comment additionally shows his statements were rhetorical hyperbole rather than assertions of facts. He states “It is because of shit like this that I need to run for mayor!” followed by a grinning emoji, and that Bauer is a “PIECE OF SHIT!!!” before calling him a slumlord. The tone “is pointed, exaggerated, and heavily laden with emotional rhetoric and moral outrage” thus alerting readers that the statements are expressions of personal judgment. Milkovich, 497 U.S. at 32, 110 S. Ct. at 2712 (Brennan, J., dissenting); see also Wahrendorf v. City of Oswego, 899 N.Y.S. 502, 503–04 (App. Div. 2010) (determining statements made on the internet that the plaintiffs were slumlords and sociopaths and their property was a garbage heap and pigpen was name-calling and general insults because the tone was intended to be humorous and sarcastic).

Furthermore, Brinkman did not attempt to provide any support for the statement that Bauer is a slumlord; therefore, a reader is alerted it is an insult and a “single, excited reference” rather than a factual assertion.

(Mike Frisch)

April 16, 2021 in Current Affairs | Permalink | Comments (0)

Wednesday, January 27, 2021

No Client, No Jurisdiction: The Docket Of The Bay

A lawyer for the Department of Defense had no private right to compel public hearings in the proceedings involving Ibrahim al Qosi 

In this case, a defense attorney named Philip Sundel (with no client) petitioned a court (with no jurisdiction) to reverse a procedural ruling (excluding the public from a classified hearing) in an appeal filed by other attorneys who (like Sundel) have no client. Welcome to Guantanamo Bay.

Circuit Judge Walker authored the opinion  of the United States Court of Appeals for the District of Columbia Circuit

To be clear, government lawyers often have a right and a duty to argue against proposed policies within the agency’s walls. And when they think a policy is illegal, it is their job to say so. See, e.g., Steven A. Steinbach, The Two Lives of Laurence Silberman: Political Service and Judging, available at content/uploads/2019/06/Silbermanoral-history-summary-revised.pdf (Undersecretary of Labor Laurence Silberman submitted a resignation letter “after a runin with Chuck Colson, who was improperly ‘trying to fix’ DOL enforcement actions”). But we are not saying that, having lost the internal debate, a government lawyer can, as a member of the public, litigate the debate’s outcome in federal court.

Nor are we opining on the constitutionality of that debate’s outcome. It is an open question whether the public has a First Amendment right to attend hearings related to detainees at Guantanamo Bay. For now, we simply note that allowing a government lawyer to litigate that question as a member of the public would invite ill-advised litigation in other contexts.

In short, Sundel may or may not have prudential standing. But we need not address that precise issue today because there is a clearer reason we must dismiss Sundel’s case: We lack subject matter jurisdiction.

The above-cited Senior Judge Silberman was on the panel. (Mike Frisch)

January 27, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, January 14, 2021

COVID- Denying Sheriff Faces Recall For Incitement

The Washington State Supreme Court has held that an elected sheriff  is subject to recall for inciting disobedience of a COVID order

Fortney argues that the incitement charge is legally and factually insufficient because his refusal to enforce the law does not constitute inciting others to violate the law. Appellant’s Opening Br. at 36. Fortney underestimates both the significance of his words and the power of his office. Fortney unambiguously proclaimed that the Stay Home – Stay Healthy proclamation was unconstitutional and that the governor’s judgment should be questioned, and he advocated that residents had the right to work. Fortney specifically directed his message to Snohomish “business owners,” declaring that  “it is time to open up this freedom [to work]” for “small business owners,” and it was “time to lead the way.” 2 CP at 395-96.

Fortney insists that he encouraged individuals only to contact their representatives. Appellant’s Opening Br. at 36. However, the record indicates he said much more, and Fortney’s words can be reasonably interpreted as an exhortation for people to return to work. Moreover, petitioners provided evidence that Fortney’s words had such an effect on a small business owner who opened the doors of his barbershop to a line of unmasked customers. We agree with the trialcourt’s determination that a voter could reasonably conclude that Fortney’s specific words “incit[ed] folks to violate the stay-at-home order.” 1 VRP at 85.

He also will face recall for rehiring dismissed deputies.

But not for an alleged failure to investigate an incident involving the arrest of a black jaywalker.

Justice McCloud

I part ways with the majority because I cannot agree that Fortney’s public statements show complete “refusal to enforce the law” or countywide incitement to violate the law. Id. at 8-9. Instead, taken as a whole, his statements show that he disagrees with the law, that he encourages people to oppose the law—especially by writing to elected officials—and that he chooses to enforce the law through education rather than arrest. Finally, and most critically for the “incitement” charge, Fortney’s statements also show that he chose to make that enforcement decision public and transparent by posting it on social media.

I would therefore reverse the superior court’s decision to allow the incitement charge to move forward. Accordingly, I concur in part and dissent in part.

The court also unanimously  approved the recall petition of a different sheriff in an unrelated matter

The recall petition alleges 26 separate charges that, assuming, as we must, the truth of the allegations, illustrate a toxic and authoritarian culture that Sheriff Hatcher has created since his appointment in 2017.

(Mike Frisch)

January 14, 2021 in Current Affairs | Permalink | Comments (0)

Tuesday, January 5, 2021

Access To Biden Papers Denied

The Delaware Superior Court affirmed the decision to deny Judicial Watch and The Daily Caller News Foundation access to papers that then-Senator Joseph Biden donated to the University of Delaware library.

The appeal involved two opinions of the state Attorney General that the papers were not subject to a FOIA demand.

The court noted that "[e]very lawyer licensed in Delaware is bound by a duty of candor" and that "statements made by the University General Counsel may be given proper weight."

The "Appellants have provided nothing other than unsupported speculation in opposition to University Counsel's representation." (Mike Frisch)

January 5, 2021 in Current Affairs | Permalink | Comments (0)

Thursday, December 31, 2020

COVID And Double Jeopardy

The New Jersey Appellate Division has held that double jeopardy does not prevent the retrial of a murder charge that was mistried due to the pandemic.

A jury had been empaneled when the shutdown occurred

On October 26, 2020, seven months after the judge suspended the trial, [the judge] sua sponte declared a mistrial and entered the order under review

The court

We hold that the COVID-19 pandemic—an unexpected, untoward, and undesigned public health crisis, which does not bespeak bad faith, inexcusable neglect, inadvertence, or oppressive conduct by counsel—coupled with the unique facts of this case, presents a legally sufficient reason and manifest necessity to terminate defendants' trial. In analyzing whether to sua sponte terminate a trial due to the COVID-19 pandemic after a jury has been impaneled and sworn, trial judges should consider: (1) the circumstances that created the urgent need to discontinue the trial, including whether it was due to bad faith, inexcusable neglect, inadvertence, oppressive conduct, or prosecutorial or defense misconduct; (2) the existence of viable alternatives; (3) the extent of any prejudice to a defendant by a second trial; (4) whether a second trial accords with the ends of public justice and judicial administration; and (5) any other relevant factors unique to the facts of the case.

Here, the judge considered these factors and did not abuse his discretion by sua sponte declaring the mistrial. 

My own experience with double jeopardy came in this appeal where a mistrial was ordered after three weeks of trial due to the judge's health. (Mike Frisch)

December 31, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, December 16, 2020

It's Bitter In The Bahamas

The dismissal of certain allegedly defamatory statements in a dispute between wealthy Bahamian neighbors has been affirmed by the New York Appellate Division for the First Judicial Department

Here, the motion court properly determined that the disputed statements were not "reasonably susceptible of a defamatory connotation" to sufficiently state a cause of action (Davis, 24 NY3d at 268 [citations omitted]). Unlike the other allegedly defamatory statements that survived the motion to dismiss, the disputed statements at most assert pure opinions that plaintiff is racist by making nonspecific vague references to the KKK and juxtaposing his picture with violent iconographic images associated with the KKK. The context of these statements was such that a reasonable reader would have concluded that these statements were rhetorical epithets, not asserted facts. Contrary to plaintiff's contention, the disputed statements did not constitute "mixed opinions" because they did not indicate that the opinions were based on any undisclosed facts (see Davis, 24 NY3d at 269). As for the cited article excerpts, which plaintiff maintains are defamatory together with the title of and images in the internet article, the motion court properly dismissed them as the author disclosed the basis for his opinion that plaintiff is racist, and plaintiff did not dispute the underlying facts or quotes attributed to him in the article (see Gross, 82 NY2d at 153-154).

The New York Times published a February 2020 detailed recounting of the origins and scope of the dispute

 The Bahamian pleasure palace featured a faux Mayan temple, sculptures of smoke-breathing snakes and a disco with a stripper pole. The owner, Peter Nygard, a Canadian fashion executive, showed off his estate on TV shows like “Lifestyles of the Rich and Famous” and threw loud beachfront parties, reveling in the company of teenage girls and young women.

Next door, Louis Bacon, an American hedge fund billionaire, presided over an airy retreat with a lawn for croquet. Mr. Bacon preferred hunting alone with a bow and arrow to attending wild parties, and if mentioned at all in the press, was typically described as buttoned-up.

The neighbors had little in common except for extreme wealth and a driveway. But when Mr. Nygard wasn’t allowed to rebuild after a fire, he blamed Mr. Bacon. Since then, the two have been embroiled in an epic battle, spending tens of millions of dollars and filing at least 25 lawsuits in five jurisdictions. Mr. Nygard, 78, has spread stories accusing Mr. Bacon of being an insider trader, murderer and member of the Ku Klux Klan. Mr. Bacon, 63, has accused Mr. Nygard of plotting to kill him.

The Times reported yesterday on criminal charges brought against the defendant in this action.

Federal authorities previously investigated Mr. Nygard on allegations of sex trafficking between 2015 and 2017 without filing any charges. The F.B.I. conducted two brief inquiries, while the Department of Homeland Security investigated him for nine months.

For decades, Mr. Nygard portrayed himself as a playboy, describing the young women and teenage girls he surrounded himself with as “the source of youth,” according to a video he produced about his attempts to fight aging. He dated celebrities like Anna Nicole Smith and fathered at least 10 children with eight women. Born in Finland, he grew up in Canada, launching his multinational fashion company, Nygard International, in Winnipeg more than 50 years ago.

He divided his time between Canada, the United States and the Bahamas, where he built a sprawling Mayan-themed compound, with sculptures of animal predators and naked women, that he described as the “Eighth Wonder of the World.”

The indictment charged that Mr. Nygard used the prospect of modeling and other fashion industry jobs to lure women and teenage girls. It said that he also he used company funds to pay for so-called pamper parties. There, employees told The Times, he recruited victims with free drinks, manicures and massages.

He forced dozens of victims to engage in “commercial sex,” defined in federal law as any sex act performed in exchange for something of value, and used threats and promises to grant or withhold modeling opportunities or financial support to maintain control, the indictment said.

(Mike Frisch)

December 16, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, November 17, 2020

Almost Heaven

A decision issued yesterday by the West Virginia Supreme Court of Appeals absolves a defendant of claims of deceptive practices brought by the state Attorney General

The Attorney General of West Virginia (the Attorney General) sued the Diocese of Wheeling-Charleston and Michael J. Bransfield in his capacity as Former Bishop of the Diocese of Wheeling-Charleston (the Diocese). The Attorney General alleged that the Diocese knowingly employed persons who admitted to sexually abusing others or who were credibly accused of sexual abuse at its schools and camps for decades. By hiding that danger or misrepresenting it, the Attorney General alleged that the Diocese violated the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act. Upon the Diocese’s motion, the circuit court dismissed the Attorney General’s claims. But, the court stayed its order and certified the following question of law to this Court: “Do the deceptive practices provisions of the West Virginia Consumer Credit and Protection Act, West Virginia Code §§ 46A-6-101 to 106 (2015), apply to
educational and recreational services offered by a religious institution?” For the reasons discussed below, we answer “No.”

The dissent of Justice Workman

The majority opinion is transparently result-oriented which explains its logical incoherence and sins of omission. The issue before the Court is one of fairness and honesty in commercial communications to the public---potential purchasers of goods and services. The fundamental question involves matters of unfair or deceptive acts or practices in advertising or selling and in advertising based on false promises. That is all. Nothing else is at issue. This case has absolutely nothing to do with the free exercise or expression of religious thought and nothing to do with regulating religious institutions in the sense of excessive State entanglement. As brought and pled by the State, what is at issue is alleged false promises and deceptive advertising promoting a safe environment aimed at getting students and campers to attend for-fee-based schools and camps, when alleged facts indicated the contrary to be true.

The allegations

it is alleged that the advertisements did not disclose that at times the Diocese employed priests and laity convicted of, admitted to, or credibly accused of sexually abusing children. A list of some forty priests convicted or credibly accused in this State or other States before association in this State from 1950 to 2018 has been developed. The Diocese had a practice of concealing information about child abuse allegations despite a public letter in 2003 announcing a promise not to enter into confidential agreements in the future in order that the truth be known. The State alleges a number of specific fact situations involving credible sexual abuse allegations as well as some involving convictions regarding individuals at its schools and camps—none of which were accompanied by any disclosure of incidents or conduct to parents of other children. The State also alleges instances where the Diocese did not abide by its advertisements that personnel in schools and camps are subject to background checks.

For its claims of failure to deliver advertised services, failure to warn of dangerous services, and unfair methods of competition, the State sought relief in the form of a declaration that the Diocese violated the CCPA, an injunction against further violations, and civil penalties. Significantly, the State expressly represented that nothing in the complaint “should be construed as an attempt to modify or interfere with doctrinal matters and hiring decisions.” In other words, the State indicated it had no intent to interfere with religious matters and was interested only in protecting consumers from advertising in violation of the CCPA.

Conclusion of the dissent

the majority opinion slams the door shut on enforcement of even the most blatant unfair or deceptive commercial conduct on the grounds that false or misleading advertising was perpetrated by a religious institution. The majority grafted onto the CCPA a blanket exemption for religious entities that are operating and competing in the commercial marketplace. The educational and recreational services provided by these religious institutions are undertaken for fees and marketed to the public at large for a purely secular purpose—enticing buyers and selling product. Ironically, religious institutions have been given an unfair marketplace advantage with respect to their commercial enterprises.

(Mike Frisch)

November 17, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, November 3, 2020

Law Firm Not Liable For Phishing Theft

The West Virginia Supreme Court of Appeals held that a law firm did not breach the standard of care in a real estate transaction where the funds transferred were stolen by a phishing scheme

Sadly, Petitioners in this action were clearly victims of a phishing/spoofing scheme. An unidentified scammer was able to impersonate Petitioners’ real estate agent and Petitioners wired to the scammer a total sum of $266,069.22, which has never been recovered. We sympathize with Petitioners. However, under the facts of this case, they were unable to establish that Respondent breached any duty owed to them. Therefore, for the reasons stated herein, we affirm the circuit court’s denial of Petitioners’ motion to alter or amend that judgment.

The transaction

Petitioners located a home in the Falling Waters area of Berkeley County that they desired to purchase. An offer on this home was made and accepted in the amount of $265,000.00, which amount Petitioners intended to pay in cash. To handle the closing, Respondent Catrow Law PLLC was retained. Thereafter, Respondent set the closing for October 26, 2015.

Falling Waters West Virginia sits on the southern side of the Potomac River across from Falling Waters Maryland. It is where the Army of Northern Virginia crossed in its retreat after the defeat at Gettysburg. 

The details of the phish are set forth in the opinion. 

Frum (the real estate broker) communicated with the victim by unencrypted emails. 

The phish purported to be from Frum

Petitioner Richard Otto responded to this email. However, the email address to which the response was sent ( was not the same email address from which the initial email purportedly from Ms. Frum was sent that day ( Indeed, every email from the scammer appeared on its face to be from, but when a reply was generated to each email, such replies went to This went unnoticed by Petitioners.

When closing time arrived , Respondent advised that the funds had not been received. 

The crime thus came to light. 

Frum and Coldwell Banker settled. 

Standard of care

When Respondent provided the wiring instructions to Frum, Respondent took steps to encrypt its email containing that information. The contents of that email were highly sensitive and Respondent reasonably expected the information to remain confidential by use of encryption technology. Indeed, Petitioners concede that Respondent was not responsible for the hack because they pled in their amended complaint that “the money was diverted when the hacker was able to intervene in email correspondences between” Frum and Coldwell. Petitioners, however, contend that in addition to the encryption precautions it undertook, Respondent had a duty to warn Petitioners of phishing schemes that could target Petitioners.

To demonstrate that duty, Petitioners aver that Respondent was a title agent for Old Republic and point to bulletins that were issued by that company warning of phishing schemes targeting closing funds. On this issue, the circuit court found that Petitioners “failed to present any genuine issue of material fact which would demonstrate [Respondent] breached a duty of care owed to them associated with the conveyance of the wiring instructions.” We agree.

The court majority affirmed the trial court's exercise of discretion to exclude a proffered expert on standard of care because he was not versed in West Virginia law.


we conclude that the circuit court was correct in granting summary judgment on this issue because Petitioners did not meet their burden of production. The failure of Petitioners to do so – when the evidence they should have submitted was available to them when they filed their response to the motion for summary judgment – renders the circuit court’s denial of relief under West Virginia Rule of Civil Procedure 59(e) justified.

For the reasons set forth below, the case may have little impact on the emerging law of liability for transactional theft.

There is a dissent  on the exclusion of expert testimony

the court cited Mr. Gwynn’s representation that he was not purporting to provide expert opinion as to West Virginia law – a fact of absolutely no consequence, because even the respondent’s expert agreed that the duty of care owed by a settlement attorney is “a very general legal standard,” one not based on any specific West Virginia law or case or rule of professional responsibility.

Thus, with the stroke of a pen, the circuit court denied petitioners the right to put their case before a jury, finding that because petitioners’ expert practiced law ninety miles away from Martinsburg, West Virginia, his forty-five years of experience meant nothing and his opinions would all be discounted. In short, the court applied an antiquated doctrine known as the “locality rule” to bar testimony that was clearly and unequivocally admissible under Rule 702 of the West Virginia Rules of Evidence.

The expert is from College Park, Maryland. 

The dissent decries the application of the "locality" rule

More than thirty years ago, this Court dealt a death blow to an ill-conceived doctrine that had for decades made it  difficult – indeed, virtually impossible -- for victims of medical malpractice to seek redress for their injuries. In the single syllabus point in Paintiff v. City of Parkersburg, 176 W. Va. 469, 345 S.E.2d 564 (1986), we held that “[t]he ‘locality rule’ in medical malpractice cases is abolished,” adding in the text of the decision that “we shall not miss it.” Id. at 472, 345 S.E.2d at 567. In today’s decision, the majority has breathed new life into Frankenstein’s monster, tacitly approving the application of a locality rule in legal malpractice cases. In my view, it is an insult to every member of the West Virginia Bar that in the absence of specific evidence to the contrary, it will be assumed that the professional standard of care for West Virginia attorneys is lower than the standard for attorneys in other states, and that West Virginia attorneys may not follow best practices.

And the grant to summary judgment.

First, let me state in the clearest terms: I defy anyone to argue that West Virginia attorneys do not have the “knowledge, skill, and ability” of lawyers anywhere else in this country. This State boasts a first-class law school; admission to the Bar requires passage of a rigorous bar examination; thereafter, all lawyers are required to complete twenty-four hours of continuing legal education every two years; and in this day and age, legal research requires the touch of a computer key, as opposed to the days when it might well have required a trip to Morgantown or Charleston to search a Dicentennial Digest. In short, attorneys in West Virginia stand on equal footing with attorneys in every other state in knowledge, skill, and ability. Second, the standard of care in this case has nothing to do with any West Virginia statute, case or rule; both Mr. Gwynn and the respondent’s expert agreed on this. Therefore, the fact that Mr. Gwynn isn’t versed in West Virginia law is completely irrelevant. Third, whatever may be the “practice” of settlement lawyers in Berkeley County, West Virginia, is also irrelevant; the question is whether that practice comports with the standard of care for attorneys practicing in the same area of law.

...As acknowledged by the majority, petitioners demonstrated that respondent was a title agent for Old Republic; that it received updates from Old Republic regarding “important information and events in the real estate industry”; and that Old Republic had sent out bulletins warning of the exact phishing scheme used in this case. I believe that this evidence was sufficient to take petitioners’ case to the jury; let the respondent establish, if it could, that it did not receive the Old Republic bulletins.

There was a recent case from Massachusetts where a law firm sought but failed to hold a bank liable for funds stolen in an online transfer.

Our summary of that case is linked here. (Mike Frisch)

November 3, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, October 22, 2020

Vanilla Claim May Go Forward

Neither side gets summary judgment in a tort claim brought against a veterinary clinic for a waiting room encounter according to an opinion of the New York Court of Appeals

Defendant Palmer Veterinary Clinic, PC treated Vanilla, a dog, for a paw injury at its clinic. That same day, plaintiff Marsha Hewitt brought her cat to the clinic for an examination. As plaintiff waited in the reception area, a veterinarian returned Vanilla to her owner in the waiting room; the dog had just undergone a medical procedure to remove a broken toenail. At some point after the veterinarian handed Vanilla’s leash back to her owner, Vanilla saw plaintiff’s cat in its carrier, slipped her collar and—in an apparent attempt to reach the cat—jumped at plaintiff from behind, grabbing her ponytail.

Several months later, plaintiff commenced the instant action against Palmer, alleging that she suffered injuries as a result of the incident. As relevant here, the complaint alleged that Palmer had a duty to provide a safe waiting room, that Palmer breached that duty by failing to exercise due care and by bringing an “agitated, distressed” dog into the waiting area, and that Palmer knew Vanilla had vicious propensities and was in an agitated and aggressive state.

The court reversed the grant of summary judgment to the clinic. 

Supreme Court granted Palmer’s motion for summary judgment, reasoning that Palmer’s liability was contingent upon it having had notice of vicious propensities in the same manner as that of a dog owner. Upon plaintiff’s appeal, the Appellate Division affirmed, with one Justice dissenting in part (167 AD3d 1120 [3d Dept 2018]).

The "vicious propensity"(one free bite) rule that applies to dog owners did not govern

It is undisputed that Palmer owed a duty of care to plaintiff—a client in its waiting room. Palmer is a veterinary clinic, whose agents have specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed. An animal in a veterinary office may experience various stressors—in addition to illness or pain—including the potential absence of its owner and exposure to unfamiliar people, animals, and surroundings. Moreover, veterinarians or other agents of a veterinary practice may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior. Indeed, here, a veterinarian introduced Vanilla into a purportedly crowded waiting room, where the dog was in close proximity to strangers and their pets—allegedly creating a volatile environment for an animal that had just undergone a medical procedure and may have been in pain. Palmer is in the business of treating animals and employs veterinarians equipped  with specialized knowledge and experience concerning animal behavior—who, in turn, may be aware of, or may create, stressors giving rise to a substantial risk of aggressive behavior. With this knowledge, veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices— an environment over which they have substantial control, and which potentially may be designed to mitigate this risk.

Therefore, we conclude that Palmer does not need the protection afforded by the vicious propensities notice requirement, and the absence of such notice here does not warrant dismissal of plaintiff’s claim.

Justice Wilson

I concur with the majority’s holding that Ms. Hewitt may proceed against Palmer Veterinary Clinic (Palmer) in negligence. I further agree with the majority’s holding that this case does not implicate Bard’s rule (subjecting animal owners to strict liability) because Palmer was not the owner of Vanilla, the dog who injured Ms. Hewitt. Because the record presents disputed issues of fact, I further agree with the majority that neither party is entitled to summary judgment. I concur separately to express why prudence and longstanding precedent dictate that Bard’s strict liability rule—a rule that has rendered New York an outlier and confounded common sense and fairness in application—should not be extended to persons who are not the owner of the domestic animal causing injury.

I note that neither party has asked us to overturn Bard—understandably so because its rule does not apply to the facts of this case.

...It remains for the trier of fact to resolve the issue of whether the exercise of due care under the circumstances would have required any or all of the measures advocated by Ms. Hewitt’s expert affiant, for example, delaying Vanilla’s return to the waiting room or discharging her through a separate room, checking or adjusting Vanilla’s collar, or otherwise preventing Vanilla from coming close to Ms. Hewitt’s cat. Thus, neither Palmer nor Ms. Hewitt is entitled to summary judgment.

(Mike Frisch)

October 22, 2020 in Current Affairs | Permalink | Comments (0)

Monday, October 19, 2020

Georgia: Votes For Deceased Candidate Void

The Georgia Supreme Court has held that votes cast for a deceased candidate do not count

Jerry NeSmith earned the support of a sufficient number of his community members to be elected as their district’s commissioner for the Athens-Clarke County Unified Government. Sadly, NeSmith died just three days before Election Day. In addition to the personal loss of his family and friends, NeSmith’s death before Election Day ultimately resulted in an electoral loss for his supporters, a number of whom joined to bring suit in superior court challenging the results of the election.

Because the applicable Georgia statutes dictate that votes cast on paper ballots for a candidate who has died before Election Day are void, none of the votes cast for NeSmith had legal effect.

Accordingly, for reasons more fully explained below, we determine that the Athens-Clarke County Board of Elections properly applied OCGA §§ 21-2-437 (d) and 21-2-438 (a) when it voided the votes cast for NeSmith and declared Jesse Houle the commissioner-elect for Athens-Clarke County Commission District 6. Moreover, we also hold that the Board’s application of those statutes in this case did not violate any rights of the appellants under the First or Fourteenth Amendments to the United States Constitution or the equal protection clause of the Georgia Constitution. Accordingly, we affirm the order of the superior court dismissing the appellants’ election challenge.

(Mike Frisch )

October 19, 2020 in Current Affairs | Permalink | Comments (0)

Sunday, September 13, 2020

Legal Malpractice Arbitration Agreements Upheld In Georgia

The Georgia Supreme Court has held that a retainer provision mandating arbitration of legal malpractice claims does not violate public policy

Innovative Images, LLC (“Innovative”) sued its former attorney James Darren Summerville, Summerville Moore, P.C., and The Summerville Firm, LLC (collectively, the “Summerville Defendants”) for legal malpractice. In response, the Summerville Defendants filed a motion to dismiss the suit and to compel arbitration in accordance with the parties’ engagement agreement, which included a clause mandating arbitration for any dispute arising under the agreement.

The trial court denied the motion to dismiss, concluding that the agreement was unconscionable and violated public policy

the Court of Appeals reversed that ruling, holding that the arbitration clause was not void as against public policy or unconscionable.

The court here agreed

we conclude that regardless of whether Summerville violated GRPC Rule 1.4 (b) by entering into the mandatory arbitration clause in the engagement agreement without first apprising Innovative of the advantages and disadvantages of arbitration – an issue which we need not address – the clause is not void as against public policy because Innovative does not argue and no court has held that such an arbitration clause may never lawfully be included in an attorney-client contract. For similar reasons, the arbitration clause is not substantively unconscionable, and on the limited record before us, Innovative has not shown that the clause was procedurally unconscionable. Accordingly, we affirm the judgment of the Court of Appeals...

Even if we assume – as we will for the remainder of this opinion – that such conduct does violate Rule 1.4 (b) such that an attorney may be subject to professional discipline, the Arbitration Clause in dispute here is neither void as against public policy nor unconscionable.

Rather than unnecessarily addressing this attorney ethics issue by judicial opinion, we will leave it to the State Bar of Georgia to address in the first instance whether this is a subject worthy of a formal advisory opinion about or amendment to the GRPC. We have before us only one factual scenario and the arguments only of the parties and one amicus curiae (the Georgia Trial Lawyers Association). Under these circumstances, the Bar’s processes provide better opportunities to obtain input from all types of lawyers as well as the public and to consider all of the potentially applicable rules without limitation to a particular litigant’s arguments.

(Mike Frisch)

September 13, 2020 in Clients, Current Affairs | Permalink | Comments (0)

Friday, August 28, 2020

Gun Rights In The New Hampshire House Of Representatives

The New Hampshire Supreme Court reversed the dismissal of a complaint

The appellant, John Burt, a member of the New Hampshire House of Representatives, appeals an order of the Superior Court (Kissinger, J.) dismissing his complaint against Stephen Shurtleff, in his official capacity as the Speaker of the New Hampshire House of Representatives. In the complaint, the appellant, together with co-plaintiffs Kevin Craig, Alicia Lekas, Tony Lekas, and Hershel Nunez, each a member of the New Hampshire House of Representatives, alleged that House Rule 63 — which, with limited exceptions, prohibits the carrying or possession of any deadly weapon in Representatives Hall, as well as in the anterooms, cloakrooms, and House gallery — violates their fundamental rights under Part I, Article 2-a of the New Hampshire Constitution.

The trial court had dismissed on separation of powers grounds

The trial court concluded that, “[a]s an independent and coequal branch of government, the legislature holds the inherent power to control the wearing of firearms within their chambers. This Court will not encroach on the legislature’s inherent authority to enact such rules.”

The court on remand must address the constitutional challenge

Finally, the Speaker urges us to reject the constitutional challenge, arguing that House Rule 63 is constitutional because it “merely imposes a reasonable restriction on deadly weapons in the House chamber.”

...Here, the trial court did not address the merits of the constitutional challenge. We express no opinion as to that issue, and remand for further proceedings consistent with this opinion.

(Mike Frisch)

August 28, 2020 in Current Affairs | Permalink | Comments (0)

Friday, August 21, 2020

Qualified Immunity And Government Attorneys: No Liability When Court Disagrees On Interpretation Of Law

The United States Court of Appeals for the Fourth Circuit reversed the denial of qualified immunity to two government attorneys.

The plaintiff had sued on a theory that the attorney's erroneous interpretation of law had prolonged his incarceration

This suit raises interesting questions about the liability of government attorneys when an agency adopts their legal interpretation, but a court later disagrees. According to lawyers for the South Carolina Department of Corrections (“SCDC”), state law required Marion Campbell to serve at least eighty-five percent of his drug-distribution sentence before he could be released. The South Carolina Administrative Law Court agreed; the South Carolina Court of Appeals did not. Based on the appeals court’s ruling, the SCDC should have freed Campbell earlier than he was actually released based on the application of work and good-conduct credits.

After his release, Campbell filed this § 1983 suit. He asserts that the SCDC lawyers’ analysis of South Carolina law was erroneous and violated the Eighth Amendment’s prohibition on “cruel and unusual punishments” by prolonging his detention. But we find that qualified immunity shields the government attorneys. Assuming Campbell’s continued detention falls within the ambit of the Eighth Amendment, the SCDC lawyers were not deliberately indifferent to his plight. So Campbell has failed to make out a constitutional violation, and his suit must be dismissed.

Plaintiff had been incarcerated for a drug offense

To fulfill its responsibilities—including determining parole eligibility and calculating release dates based on earned credits—the SCDC needed to sort through the new law in all its contradictions. The task fell to Chris Florian, the SCDC’s deputy general counsel. Florian pored over the South Carolina caselaw on statutory interpretation and legislative intent. And based on his review, he concluded that South Carolina law required the SCDC to adopt a legal interpretation that harmonized potentially contradictory provisions of a statute, if possible.


Finding the meaning of the state law obvious, the district court explained that Campbell’s Eighth Amendment right was, therefore, clearly established. So Florian and Tatarsky were not entitled to qualified immunity.


Simply put, the record shows that Florian acted reasonably to confront the interpretive problem before him. See Farmer, 511 U.S. at 845 (“[P]rison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.”). Indeed, Florian approached the relevant statutory-interpretation questions as a careful attorney would.

Plaintiff invoked res ipsa

Even if the res ipsa loquitor doctrine can be applied here, it fails. An incorrect legal opinion often occurs without some negligent (much less reckless) act or omission. In our adversarial legal system, roughly 50% of litigants lose—and thus have pressed an incorrect legal opinion. Competent administrative agencies and lower courts are often overturned despite careful and thoughtful legal interpretations. Indeed, the South Carolina Administrative Law Court (an independent body) first upheld Florian’s reading of the Omnibus Act. And even at the highest levels of the law, four colleagues at times share an “incorrect” or “unreasonable” opinion. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 HARV. L. REV. 2118, n.4 (2016) (listing recent “divides in statutory interpretation cases”). An unreasonable outcome in that context cannot support an inference that the dissenters were negligent or criminally reckless in their analysis.


The correct interpretation of the Omnibus Act has now been settled as a matter of state law—Florian and Tatarsky were wrong. But legal error alone is not deliberate indifference. As a result, Campbell fails to make out a violation of the Eighth Amendment. Florian and Tatarsky are thus entitled to qualified immunity, and Campbell’s claim against them should be dismissed with prejudice.

(Mike Frisch)

August 21, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, August 20, 2020

With Friends Like These

A significant criminal law decision of the District of Columbia Court of Appeals reversed a murder conviction on Constitutional grounds due to an overbroad warrant authorizing a search of the defendant's cell phone

A Superior Court jury found Mr. Burns guilty of first-degree premeditated murder while armed and related weapons offenses in the November 14, 2015 shooting death of Onyekachi Osuchukwu. The government’s theory at trial was that Mr. Burns killed Mr. Osuchukwu, his best friend, because he thought Mr. Osuchukwu was cheating him out of his fair share of the proceeds of a drug dealing business the two men operated together. Mr. Burns argued that he acted in self-defense, testifying that he shot Mr. Osuchukwu at close range only after Mr. Osuchukwu rushed him and tried to wrestle away his gun in an argument over the money.

The government prevailed at trial largely on the strength of data obtained from two cell phones seized from Mr. Burns on the day after the shooting and the testimony of the Chief Medical Examiner about the results of an autopsy performed by one of his deputies. Police obtained the cell phone data pursuant to Superior Court search warrants that authorized a review of the entire contents of Mr. Burns’s phones; the data included highly incriminating records of internet search inquiries made by Mr. Burns in the days leading up to the homicide (“Are you capable of killing your best friend?” “How does it feel when you kill someone for the first time?” “Shot placement for instant kill?”) and enabled the government to paint a compelling picture of Mr. Burns’s premeditation and deliberation. The Chief Medical Examiner’s testimony contradicted Mr. Burns’s claims about the way the shooting unfolded with detailed information about the gunshot wounds described in the autopsy report, including the absence of soot and stippling the government argued would have been observed at the site of the wounds had the shots been fired from within inches of Mr. Osuchukwu’s body.

The appeal challenged the admission of the evidence extracted in executing the search warrant

An investigator with the United States Attorney’s Office executed the search warrants a few days later using a software program called Cellebrite to extract all of the data on both phones, including data the user of the phones likely believed had been deleted.

The court

Both constitutional claims implicate important and recurring aspects of the criminal process in the District of Columbia. Virtually everyone in the District now uses a cell phone — typically a modern smart phone capable of holding an extraordinary amount of personal information related to the user and/or owner of the device...

Yet despite the ubiquity of cell phones and cell phone search warrants, this is the first case in which this court has been called on to analyze the validity of a cell phone search warrant under the Warrant Clause.


A search warrant for data on a modern smart phone therefore must fully comply with the requirements of the Warrant Clause. It is not enough for police to show there is probable cause to arrest the owner or user of the cell phone, or even to establish probable cause to believe the phone contains some evidence of a crime.  To be compliant with the Fourth Amendment, the warrant must specify the particular items of evidence to be searched for and seized from the phone and be strictly limited to the time period and information or other data for which probable cause has been properly established through the facts and circumstances set forth under oath in the warrant’s supporting affidavit. Vigilance in enforcing the probable cause and particularity requirements is thus essential to the protection of the vital privacy interests inherent in virtually every modern cell phone and to the achievement of the “meaningful constraints” contemplated in Riley, 573 U.S. at 399.


We conclude that Mr. Burns has established violations of his rights under both the Fourth and the Sixth Amendments. Police sought search warrants that authorized an unlimited review of the contents of his cell phones for “any evidence” of murder even though the warrants were supported by affidavits that established probable cause for only three narrow and discrete items of data. The warrants were thus overbroad and lacking in probable cause and particularity, and the warrant judge should not have issued them. The warrants’ deficiencies, moreover, were so extreme and apparent that a reasonably well-trained police officer, with reasonable knowledge of what the law prohibits, would have known the warrants were invalid notwithstanding their approval by a judge. The good faith exception to the exclusionary rule therefore does not apply, and the trial judge should have granted Mr. Burns’s motion to suppress all of the data collected from both phones. Separately, the Chief Medical Examiner’s testimony plainly transmitted to the jury the findings of the deputy medical examiner who conducted the autopsy on Mr. Osuchukwu’s remains. Because those findings, set forth in the autopsy report and other materials maintained in the autopsy file, were made in the context of an ongoing police investigation of a homicide, the findings were “testimonial” and their communication to the jury through the Chief Medical Examiner’s testimony violated the Confrontation Clause. Both constitutional
errors prejudiced Mr. Burns at trial, and in combination they cannot be deemed harmless beyond a reasonable doubt.

Superior Court Associate Judge Kravitz (sitting by designation) authored the opinion joined by Associate Judges fisher and Easterly. (Mike Frisch)

August 20, 2020 in Current Affairs | Permalink | Comments (0)

Wednesday, August 19, 2020

Crime And Punishment In Indiana

The Indiana Supreme Court addressed thorny criminal law issues in two cases decided yesterday.

Double jeopardy in the Wadle case

we expressly overrule the Richardson constitutional tests in resolving claims of substantive double jeopardy. Going forward, and with a focus on statutory interpretation, we adopt an analytical framework that applies the statutory rules of double jeopardy. See infra Section I.B.3. This framework, which applies when a defendant’s single act or transaction implicates multiple criminal statutes (rather than a single statute), consists of a two-part inquiry: First, a court must determine, under our included offense statutes, whether one charged offense encompasses another charged offense. Second, a court must look at the underlying facts—as alleged in the information and as adduced at trial—to determine whether the charged offenses are the “same.” If the facts show two separate and distinct crimes, there’s no violation of substantive double jeopardy, even if one offense is, by definition, “included” in the other. But if the facts show only a single continuous crime, and one statutory offense is included in the other, then the presumption is that the legislation intends for alternative (rather than cumulative) sanctions. The State can rebut this presumption only by showing that the statute—either in express terms or by unmistakable implication—clearly permits multiple punishment.

The defendant here stands convicted of several offenses for leaving the scene of an accident after twice striking and seriously injuring his victim while driving drunk. Because we interpret the statutory offenses charged as alternative sanctions, we hold that the defendant’s multiple convictions violate the statutory rules of substantive double jeopardy. Accordingly, we affirm in part, reverse in part, and remand with instructions for the trial court to vacate all but one of his convictions: Level 3 felony leaving the scene of an accident. And because this conviction alone justifies the penalty imposed, we further instruct the trial court to leave in place his sixteen-year sentence with two years suspended to probation.

Multiple offenses in the Powell case

Most everyone would agree that intentionally shooting at and killing two persons (one immediately after the other) amounts to two separate murders. Reasonable persons would also likely conclude that robbing a person and then brutally beating and injuring that person (all in the same encounter) amount to two separate criminal acts: robbery and aggravated battery. Other scenarios, however, are less clear. Is the baker who sells four loaves of bread on Sunday subject to four counts of violating the “blue law” or only one? Does the theft of a single package in which several articles of property belong to multiple persons amount to one offense or multiple offenses? Does every punch thrown upon a single victim amount to a separate act of battery? Are two pulls of the trigger one attempted murder or two? Does it matter if the defendant aimed at two victims rather than one? What if he had aimed at the same person but on different days and at different locations?


The defendant here, during an escalating confrontation, fired five to six shots in rapid succession at two victims sitting in an adjacent vehicle, seriously injuring one of them. In these circumstances, may a court convict on one count of attempted murder (for the single act of shooting) or two (one for each victim)? While our attempted-murder statute contains no clear unit of prosecution, we find sufficient evidence of the defendant’s dual purpose in firing his weapon: intent to kill both victims. Accordingly, we hold that the defendant’s actions, despite their proximity in space and time, amount to two distinct, chargeable offenses.

(Mike Frisch)

August 19, 2020 in Current Affairs | Permalink | Comments (0)

Monday, August 10, 2020

Password NOT Protected: A Foregone Conclusion

In a matter involving a question of first impression, the New Jersey Supreme Court has held that forcing a defendant to reveal iPhone passwords  for properly seized phones does not run afoul of the state or United States Constitutions. 

From the court's syllabus

The Court considers whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellphones violates the Self Incrimination Clause of the Fifth Amendment to the United States Constitution or New Jersey’s common law or statutory protections against self-incrimination.

The target of a State narcotics investigation, Quincy Lowery, advised detectives that defendant Robert Andrews, a former Essex County Sheriff’s Officer, had provided him with information about the investigation and advice to avoid criminal exposure. The State obtained an arrest warrant for defendant, who was later released, and search warrants for defendant’s iPhones, which were seized.

The State moved to compel disclosure of the passwords to two iPhones

The trial court rejected Andrews’s arguments but limited access to Andrews’s cellphones “to that which is contained within (1) the ‘Phone’ icon and application on Andrews’s two iPhones, and (2) the ‘Messages’ icon and/or text messaging applications used by Andrews during his communications with Lowery.” The court also ordered that the search “be performed by the State, in camera, in the presence of Andrews’s defense counsel and the [c]ourt,” with the court “review[ing] the PIN or passcode prior to its disclosure to the State.” The Appellate Division affirmed. 457 N.J. Super. 14, 18 (App. Div. 2018). The Court granted leave to appeal. 237 N.J. 572 (2019).

The court agreed

Here, the State correctly asserts that the lawfully issued search warrants -- the sufficiency of which Andrews does not challenge -- give it the right to the cellphones’ purportedly incriminating contents as specified in the trial court’s order. And neither those contents -- which are voluntary, not compelled, communications -- nor the phones themselves -- which are physical objects, not testimonial communications -- are protected by the privilege against self-incrimination. Therefore, production of the cellphones and their contents is not barred. But access to the cellphones’ contents depends here upon entry of their passcodes. Communicating or entering a passcode requires facts contained within the holder’s mind. It is a testimonial act of production...

Based on the record in this case, compelled production of the passcodes falls within the foregone conclusion exception. The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the exception thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones. The Court would reach the same conclusion if it viewed the analysis to encompass the phones’ contents. The search warrants and record evidence of the particular content that the State knew the phones contained provide ample support for that determination. This was no fishing expedition.

The court majority reaches the same result under state law.

Justice LaVecchia, dissented (quoting from the opinion)

In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts -- the contents of our minds -- from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.

We are at a crossroads in our law. Will we allow law enforcement -- and our courts as their collaborators -- to compel a defendant to disgorge undisclosed private thoughts -- presumably memorized numbers or letters -- so that the government can obtain access to encrypted smartphones? In my view, compelling the disclosure of a person’s mental thoughts is anathema to fundamental principles under our Constitution and state common law.

The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Those same principles should apply even in the face of the latest challenge presented by new technology. Respectfully, I dissent from the course the Court now takes.

...This Court has never before permitted law enforcement to compel from a defendant’s lips inner thoughts to assist in his own prosecution. I cannot join in taking our state law in that direction. Therefore, for the same reasons that I would not extend federal law to require what the Supreme Court has not expressly held, so too I would not turn our jurisprudence from the guiding principles it has followed to date.

This intrusive use of compelled cooperation forcing self-incrimination through disclosure of the contents of one’s mind is not consistent with our law. It should be rejected as a step backwards from the storied history in this State of protective law concerning personal autonomy and the privacy of one’s inner thoughts with respect to the privilege against self-incrimination.

The oral arguments can be accessed on the court's opinions page. (Mike Frisch)

August 10, 2020 in Current Affairs | Permalink | Comments (0)

Friday, July 24, 2020

Suing Facebook

The New Hampshire Supreme Court reversed and remanded the dismissal on motion of a small claims action brought against Facebook by an Instagram user whose account had been deleted

Teatotaller alleged that in June 2018, Facebook “deleted [Teatotaller’s] Instagram . . . account without notice.” Teatotaller further alleged that Facebook “sent two contradicting statements as to the reason for deletion and provided no appeal or contact to get more information.” Teatotaller also alleged that Facebook “had a duty of care to protect [Teatotaller] from an algorithmic deletion as it hampers [Teatotaller’s] business” and that Teatotaller has “continue[d] to lose business and customers due to [Facebook’s] negligence.” In addition to seeking $9,999 in damages, Teatotaller sought restoration of its Instagram account.

The case featured legal heavyweights against a non-lawyer

Emmett Soldati, non-lawyer representative appearing by approval of the Supreme Court under Rule 33(2), on the brief and orally, for the plaintiff.

Paul Frank + Collins P.C., of Burlington, Vermont (Stephen J. Soule on the brief); Keker, Van Nest & Peters, LLP, of San Francisco, California (Matan Shacham and Victor Chiu on the brief); and Primmer, Piper, Eggleston & Cramer, PC, of Manchester (Doreen F. Connor orally), for the defendant.

For now, David beat Goliath.


Following a hearing, the trial court granted Facebook’s motion, determining that the Terms of Use gave the court personal jurisdiction over Facebook, but also precluded Teatotaller’s claims. Specifically, the court  determined that, “given the language in the [Terms of Use],” Teatotaller “cannot state a claim or demonstrate any breach of contract that gives rise to a cause of action.” In response to Teatotaller’s subsequent motion to reconsider, the trial court stated that Facebook is entitled to immunity under the CDA for “the acts that are alleged by [Teatotaller].” This appeal followed.

On review

Teatotaller alleged that it entered into the Terms of Use with Facebook regarding Teatotaller’s use of Instagram in exchange for fees. Teatotaller further alleged that Facebook deleted Teatotaller’s Instagram account in violation of the Terms of Use, causing Teatotaller to “lose business and customers,” for which Teatotaller requested “damages and the restoration of [its] account.” Assuming the facts alleged by Teatotaller to be true, we hold that these allegations suffice in the context of a small claim action to state a cause of action for breach of contract.

Immunity under the Communications Decency Act

We next consider whether Facebook is entitled to immunity under the CDA for Teatotaller’s breach of contract claim.

...because it is not clear on the face of Teatotaller’s complaint and objection whether prong two of the CDA immunity test is met, we conclude that the trial court erred by dismissing Teatotaller’s breach of contract claim on such grounds. See Pirozzi, 913 F. Supp. 2d at 849. We simply cannot determine based upon the pleadings at this stage in the proceeding whether Facebook is immune from liability under section 230(c)(1) of the CDA on Teatotaller’s breach of contract claim. See id. For all of the above reasons, therefore, although Teatotaller’s breach of contract claim may ultimately fail, either on the merits or under the CDA, we hold that dismissal of the claim is not warranted at this time.

Footnote 2 in part

Because the parties have not yet litigated the issue, we express no opinion as to whether the trial court has authority to order Facebook to restore Teatotaller’s Instagram account in the context of this small claim action.

The web page of the plaintiff is linked here. (Mike Frisch)

July 24, 2020 in Current Affairs | Permalink | Comments (0)

More Than Mere Curiosity

The New York Appellate Division has reversed and remanded  an order that granted nonparty BuzzFeed's request to unseal the petition and confidential settlement agreement in a dismissed special proceeding involving Oleg Deripaska. 

Initially, we agree that Supreme Court had jurisdiction to unseal the documents, even if it had no personal jurisdiction over Deripaska (see Gambale v Deutsche Bank AG, 377 F3d 133, 141 [2d Cir 2004]). However, we find that the court abused its discretion in granting BuzzFeed's request to unseal the petition and settlement agreement in their entirety. The court improvidently found that Deripaska could not have reasonably relied on the confidentiality of the subject documents because they were not filed under seal. The record shows that the settlement agreement was the subject of a prior sealing order, and the documents were never made publicly available, but filed under restricted access, before they were placed under seal.

Nonetheless, as BuzzFeed persuasively argues, New York has a "long-standing, sound public policy that all judicial proceedings, both civil and criminal, are presumptively open to the public'" (Matter of James Q., 32 NY3d 671, 676 [2019], quoting Matter of Hearst Corp. v Clyne, 50 NY2d 707, 715 [1980]; see also Mosallem v Berenson, 76 AD3d 345 [1st Dept 2010]). Sealing of a document, when the public or press seeks to gain access to it, should not be permitted except in compelling circumstances especially where as occurred here, the court relied on the documents in reaching its decision (see generally United States v Amodeo, 71 F3d 1044, 1049 [2d Cir 1995]; see also Mosallem, 76 AD3d at 350). Buzzfeed contends that Deripaska is a well-known figure, who is connected to numerous people in American public life and American government at the highest level. The motion court described him as a figure of "notoriety." Appellant does not dispute this but contends that good cause existed for the prior justices to seal these documents, and that Buzzfeed has not met its burden to undo those rulings. Appellant further argues that since the documents were previously sealed, a higher standard should apply and that in applying this higher standard, Buzzfeed failed to demonstrate why the petition and settlement agreement should be unsealed (see Geller v Branic Intl. Realty Corp., 212 F3d 734 [2d Cir 2000]; see also Securities & Exch. Commn. v TheStreet.Com, 273 F3d 222 [2d Cir 2001]).

Here, in light of the strong public policy in favor of open court records and the fact that the documents were relied on by the court in its decision, we conclude that Buzzfeed has shown that complete sealing is not necessary. We reject Deripaska's contention that Buzzfeed's request is motivated by mere curiosity (see generally Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1 [lst Dept 2000]).

In unsealing the documents, the motion court did not address whether a more narrow remedy, such as limited redaction, would serve to protect any confidential or proprietary information in the agreements. While appellant contends that he relied on the sealing order when agreeing to the English Settlement Agreement, neither the record nor the briefs contain a satisfactory explanation as to exactly how he would be prejudiced if it were released, provided that any confidential or proprietary information is redacted. In rejecting appellant's contention that all of the documents should remain sealed we are not holding that all such media applications should be granted, but rather that, on balance, in this case Buzzfeed has established a basis for obtaining access subject to any redactions. Accordingly, we remand to the motion court for it to determine, after further submissions if it determines that is necessary, and after in camera review of the unredacted records, whether any redactions are necessary before the documents are released.

July 24, 2020 in Current Affairs | Permalink | Comments (0)

Monday, July 20, 2020

COVID And Confrontation

The Tennessee Court of Criminal Appeals has remanded an order allowing remote testimony in a murder case

On July 12, 2019, the State filed a motion requesting that four of the prosecution’s witnesses, all of whom were from Virginia, be allowed to testify via teleconferencing technology, namely “Microsoft Teams,” the software used by the District Attorneys General Conference.

The trial court

So to respond to the laser point that I made at the very beginning, is this gentleman going to receive exactly what he deserves under his right of confrontation, not only to observe and watch the witnesses who are testifying against him, but also have the right to cross-examine those witnesses. I believe he receives exactly the same rights as if . . . the witnesses were live testifying in the courtroom.

I will allow the witnesses to testify by [teleconferencing technology] .

The constitutional issue

On appeal, the Defendant contends that allowing witnesses in a criminal prosecution to testify against him via teleconferencing software violates his right to confrontation under the Sixth Amendment to the United States Constitution and Article I, section 9 of the Tennessee Constitution. The State counters that the Tennessee Constitution does not afford any greater protections than the United States Constitution and that the United States Supreme Court has held that teleconferencing software does not violate the Confrontation Clause where there is a sound public policy reason to use such technology. See Maryland v. Craig, 497 U.S. 836, 855-57 (1990). The State further contends that those public policy reasons exist in this case, so the trial court did not err when it held that the four witnesses could testify via teleconferencing software.


While we concede that two-way videoconferencing more closely approximates face-to-face confrontation, it is in no way constitutionally equivalent to the face-to-face confrontation envisioned by the Sixth Amendment. We respectfully but firmly disagree with the trial court’s finding that “if the software works the way it should work, will be, in my opinion, as good as the person being here live.” Further, two-way video conferencing allows for the witness to testify remotely and not come to the courthouse at all. The physical presence of the witness in the courthouse is, itself, a significant moment for the witness, during which any witness in a criminal proceeding understands the wide ranging implications their testimony may have on the life of another. Foregoing in person testimony potentially removes a witness’s understanding of the enormity of those implications. We are not inclined to remove the requirement of physical presence of a witness in the courthouse, save for instances in which the most necessary public policy considerations arise. We hold that face-to-face confrontation in Tennessee means simply that, face-to-face communication, unless there is some greater public interest that overrides the directives of our great state’s constitution.

Having so decided, we remand this case back to the trial court to make a specific finding, using the law as articulated in Craig, about the public policy implications triggered by the circumstances of each of the witnesses herein.

...we conclude that the standard as articulated in Maryland v. Craig, 497 U.S. 836 (1990), should extend to two-way video conferencing technology. As such we reverse and remand this case to the trial court for a case-specific and witness-specific determination that the denial of the defendant’s confrontation right is necessary to further an important public interest.

(Mike Frisch)

July 20, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, June 23, 2020

DC Provides Access To Remote Oral Arguments

The District of Columbia Court of Appeals has created opportunity out of challenges by providing easy online access to its oral arguments.

Today's arguments are already available.

DCCA Remote Oral Arguments

To expand the administration of justice during the current pandemic, the court is conducting oral arguments via videoconference, effective May 26, 2020. The public may view the argument in real time at the DC Court of Appeals YouTube channel. If you are the arguing attorney or a self-represented party in an oral argument, you will receive an email containing a link to access your videoconference, and the participant protocol (PDF) provides technical guidance and best practices.

The next Oral Argument will begin Thursday, June 25th at 9:30 am on the DC Court of Appeals YouTube channel. You may need to refresh the YouTube page to see it after 9:30 am.

Previous Oral Arguments
6/23/2020 D.C. Court of Appeals Zoom Oral Arguments

6/18/2020 D.C. Court of Appeals Zoom Oral Arguments

6/17/2020 D.C. Court of Appeals Zoom Oral Arguments

6/11/2020 D.C. Court of Appeals Zoom Oral Arguments

6/9/2020 D.C. Court of Appeals Zoom Oral Arguments



This is a major advance in court transparency. Glad I am around to enjoy it. (Mike Frisch)

June 23, 2020 in Current Affairs | Permalink | Comments (0)