Thursday, June 23, 2022

Slave Descendants Have Claim Against Harvard Reinstated

The Massachusetts Supreme Judicial Court has remanded the dismissal of a claim brought by a descendant of slaves against Harvard for use of photographic depictions of her ancestors.

The oral argument is linked here from Suffolk Law's web page. 

Editor's note: Benjamin Crump's pro hac vice argument is nothing short of brilliant. A model of effective appellate advocacy.

The court

In 1850, the Harvard professor Louis Agassiz arranged to have daguerreotypes made of Renty Taylor and Delia Taylor, who were enslaved on a plantation in South Carolina. Renty was ordered to disrobe. His daughter, Delia, was stripped naked to the waist. Their images were then captured in four daguerreotypes. These daguerreotypes were later used by Agassiz in an academic publication to support polygenism, a pseudoscientific racist theory for which Agassiz, a prominent scientist, was a vocal proponent.

Identifying herself as a descendant of Renty and Delia Taylor, the plaintiff, Tamara Lanier, contacted Harvard University seeking recognition of her ancestral connection to Renty and Delia and requesting information regarding Harvard's past and intended use of the daguerreotypes. When the university dismissed Lanier's claim of descent from Renty and Delia and ignored her requests, continuing to use and display images of Renty without informing her, she brought this action against the defendants, the President and Fellows of Harvard College, the Harvard Board of Overseers, Harvard University, and the Peabody Museum of Archaeology and Ethnology (collectively, Harvard), seeking relief for emotional distress and other injuries, as well as restitution of the daguerreotypes to her.

A judge of the Superior Court granted Harvard's motion to dismiss, determining that each of the claims Lanier raised failed as a matter of law and that the facts as alleged in her second amended complaint did not plausibly suggest an entitlement to relief.

Because we conclude that the alleged facts, taken as true, plausibly support claims for negligent and indeed reckless infliction of emotional distress, we vacate the dismissal of the plaintiff's claim for negligent infliction of emotional distress and remand the case to the Superior Court to allow the plaintiff to amend her complaint to incorporate allegations of reckless infliction of emotional distress. The dismissal of Lanier's other claims, however, we affirm.

When the daguerreotypes were re-discovered

In 1976, the daguerreotypes were discovered in a wooden cabinet in a corner of the Peabody Museum's attic by a museum researcher. Although the researcher who made the discovery expressed concern for the families of the men and women depicted in the daguerreotypes, Harvard did not act on the researcher's concerns. Rather, it simply claimed the daguerreotypes as its property. The discovery itself attracted national media attention, as the daguerreotypes were believed to be the "earliest known photographs of American slaves."

The family connection was discovered fulfilling a dying wish of the plaintiff's mother as in the story of "Roots"

The plaintiff's mother, Mattye Thompson, often told the story of their family, which began with a man named Renty Taylor, also known as Papa Renty or "the Black African." Papa Renty was an indomitable man who defied slavery's tyranny by teaching himself and others to read and by conducting secret Bible readings and study on the plantation where he was enslaved. As a reminder to never forget the family history that began with Renty Taylor, Mattye Thompson repeatedly told her children and grandchildren, "Always remember we're Taylors, not Thompsons."

She brought her concern to the attention of then-President Drew Gilpin Faust ("a distinguished historian of the antebellum South and the Confederacy"), who advised her that the daguerreotypes were part of an "ongoing project" and that Harvard "agreed to be in touch..."

A broken promise.


In 2017, Renty Taylor's image from one of the daguerreotypes at issue was used on the cover of the thirtieth anniversary edition of "From Site to Sight," a volume on anthropology and photography published and marketed by Harvard University Press. Harvard also used the image at a national academic conference it hosted on universities' historical connections with slavery in March of that year. At the conference, which the plaintiff attended with her own daughters, Renty's image was projected on a large screen onstage and was also featured on the front cover of the conference program, where it was accompanied by the following caption:

"The man you see on the program's front cover, Renty, lived and worked as a slave in South Carolina in 1850, when his photograph was taken for the Harvard professor Louis Agassiz as a part of Agassiz's scientific research. While Agassiz earned acclaim, Renty returned to invisibility."

According to the plaintiff's complaint, this description "took [her] breath away," not only because it omitted the "racist and dehumanizing" nature of Agassiz's work, but also because it "relegate[d] Renty to 'invisibility,'" in "flagrant disregard for [her] repeated attempts to share Renty's story and restore a measure of the humanity that Agassiz [had] stripped from him."

She then demanded that the daguerreotypes be "immediately relinquished" to her and sued when rebuffed.

Justice Cypher concurred and would keep an order to return the property on the table

The making of the daguerreotypes was a horrific harm to Renty and Delia, inflicted by their enslavers and by Louis Agassiz, a Harvard professor who ordered that the daguerreotypes be created. I agree with the court that the judge properly dismissed the specific property causes of action pleaded in the plaintiff's complaint based on our existing jurisprudence. However, if the plaintiff ultimately prevails on the surviving tort causes of action articulated by the court, the trial court will not be able to award the plaintiff with possession of the daguerreotypes, which was the plaintiff's primary reason for bringing suit...

Failing to recognize that the plaintiff, as a descendant of Renty and Delia, may have a claim to the daguerreotypes superior to Harvard's is precisely the sort of miscarriage of justice that the late Chief Justice Gants warned us against perpetuating. We are faced with an aggrieved plaintiff who has pleaded facts that, if proved, demand a full remedy and nothing less. It is within this court's authority to provide such remedy by recognizing the cause of action I have articulated today.

Notably, an amicus brief on behalf of the descendants of Louis Agassiz supports Ms. Lanier

We, the descendants of Louis Agassiz urge the Court to side with Ms. Lanier and we implore Harvard University, an institution with which our family has been intertwined for hundreds of years, to release the daguerreotypes to Ms. Lanier and provide the restitution she requests. We also call on the University to publicly apologize for the damage Agassiz and Harvard have done, not only to Ms. Lanier, but to generations of African-Americans. This gesture would begin an honest accounting of what is owed for Harvard’s historical support for slavery and elevation of Agassiz, who used his reputation and position at the university to enshrine the racist myth of white superiority...

As Ms. Lanier has said many times, it is because she grew up hearing stories about an enslaved ancestor, Papa Renty, or Congo Renty, that she began to uncover her relation to the man in the daguerreotype. Papa Renty’s efforts — and the oral history lovingly passed down through the generations to Ms. Lanier — have prevailed in heroic defiance of the legacy of chattel slavery, an institution that functioned to sever family ties and erase lines of ancestry for enslaved Africans. The history of our family, and that of Harvard, will forever be linked to that same odious institution. We do not choose our ancestry, but we can choose to learn from a history that has given us prestige, privilege and wealth at the expense of others. 

(Mike Frisch)

June 23, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, June 22, 2022

Forum Shopping Claim Rejected In Defamation Action

The United States District Court for the District of Columbia denied efforts of OAN to dismiss the defamation claims of Smartmatic and the remove the case to a California federal court

In November 2021, Smartmatic filed this lawsuit, claiming that OAN made numerous statements actionable as defamation about Smartmatic and the company’s role or lack thereof in the election.


OAN also notes that Smartmatic appears to be engaged in forum-shopping, striving to avoid a jurisdiction with an anti-SLAPP provision. See OAN’s Reply at 8; see also Justin W. Aimonetti & M. Christian Talley, How Two Rights Made A Wrong: Sullivan, Anti-SLAPP, and the Underenforcement of Public-Figure Defamation Torts, 130 YALE L.J. FORUM 708, 712 (2021) (discussing the advent and evolution of anti-SLAPP provisions). The Court’s exercise of specific personal jurisdiction over OAN comports with the requirements of the Due Process Clause. Indeed, if § 13-423(a)(1) has been satisfied then any added requirement emanating from the Due Process Clause has been satisfied, too. See GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). And although forum-shopping is not a trivial concern, a plaintiff may pick the forum and venue so long as the law allows it.

District Judge Nichols authored the opinion. (Mike Frisch)

June 22, 2022 in Current Affairs | Permalink | Comments (0)

Friday, June 17, 2022

Google And Departing Lawyers

A Memorandum Opinion of the United States District Court for the District of Columbia (District Judge Boasberg) dismissed litigation brought in the wake of a lawyer departure from his longtime firm

Perhaps it can be characterized as an occupational hazard, but disputes between law-firm partners tend to devolve into litigation. This case is no exception. Plaintiff William Lightfoot left Defendant Koonz, McKenney, Johnson & DePaolis LLP (KMJD) after working as a lawyer there for several decades. After his departure, KMJD retained the log-in credentials for Lightfoot’s Google My Business (GMB) page, which he used to advertise his services online. Lightfoot alleges that the firm subsequently accessed this page without his permission and also altered the telephone number there to KMJD’s own as a means to divert clients its way. He brings similar allegations with regard to the GMB page for his new law firm, Plaintiff May Lightfoot PLLC. Plaintiffs believe that KMJD’s actions violate two federal statutes — the Computer Fraud and Abuse Act and the Lanham Act — and constitute tortious interference with prospective advantage, negligence, and conversion under D.C. law. Defendant now moves to dismiss all counts. Because the Court finds in the firm’s favor on the federal causes of action, it will dismiss them and decline to exercise supplemental jurisdiction over the D.C.-based claims.

The opinion notes a post-departure development

Although he and his new firm have long since sorted out the [google] problem, Lightfoot is hardly disengaging, perhaps because an arbitrator socked him with nearly a half-million dollar award in favor of KMJD in 2021.

Merits of the federal claim

KMJD does not deny accessing Lightfoot’s page, but rejoins that such access could not have been unauthorized since it possessed the log-in credentials and, by Plaintiffs’ own description, “controlled” the GMB page during the relevant time period. 

So "unauthorized" is at least potentially at issue

Fortunately for the Court, it can allow these questions to percolate among those more learned in the field, since no resolution is necessary here. This is because Defendant’s third argument for dismissal carries the day.

That one urges the Court to find Count I insufficiently pled because the Complaint has not alleged a loss that meets the CFAA’s statutory requirement.

On that issue

First, although Plaintiffs allege that they suffered a “loss of more than $2,100,000.00,” they do not tie that loss to KMJD actions that occurred during the relevant timespan — namely, the brief period between February 6, 2020 (if the loss resulted from denial of access to the page) or February 14, 2020 (if it stemmed from the changing of the phone number) and February 20, 2020, when they gained control of Lightfoot’s GMB page...

Second, even assuming that lost revenues is a valid form of “loss” under the CFAA, Plaintiffs have not alleged that theirs resulted from an “interruption of service,” as the statute requires.

Lanham Act

Next up is Count II, in which Plaintiffs allege that KMJD violated the Lanham Act by “misappropriating and altering Mr. Lightfoot’s and Lightfoot’s GMB account” and “falsely designat[ing] the ownership, origin, and purveyor of the services advertised by Mr. Lightfoot’s and May Lightfoot’s GMB page in an effort to cause confusion and mistake as to the services offered and advertised by the May Lightfoot GMB page.” Compl., ¶ 39; id., ¶¶ 35–44. The firm believes that this count must be dismissed because Plaintiffs have not alleged the three elements of a trademark claim — namely, trademark rights, use of a trademark by KMJD, and likelihood of confusion.

This claim also was rejected, leaving only D.C. allegations. (Mike Frisch)

June 17, 2022 in Current Affairs | Permalink | Comments (0)

Monday, June 13, 2022

Dog's Lives (Don't) Matter

There a few things in life that have given as much pure joy as sharing my home with my rescue dogs.

I would dissent from a decision of the New Jersey Supreme Court as described in these headnote excerpts

In this appeal, the Court considers whether to expand the common law rescue doctrine to permit plaintiffs to recover damages for injuries sustained as a proximate result of attempting to rescue defendants’ dog.

Plaintiff Ann Samolyk sustained neurological and cognitive injuries when she entered a lagoon in Forked River to rescue her neighbors’ dog, which had fallen or jumped into the water. Samolyk’s husband filed a civil action against defendants, alleging they were liable under the rescue doctrine by negligently allowing their dog to fall or jump into the water, prompting Samolyk to attempt to save the dog.

The opinion describes the incident

The parties are neighbors in Forked River, an unincorporated bayfront community within Lacey Township. Their homes are situated on a canal. In the evening of July 13, 2017, defendants’ dog fell or jumped into the canal that snakes around the rear area of this shore community. Ann claimed she heard someone calling for help to rescue their dog that had fallen into the canal. A report filed by a Lacey police officer describes the incident as “a report of a dog swimming in the lagoon.” The report states that Ann “entered the lagoon to rescue the dog.” The dog “was removed from the lagoon,” without any apparent harm, by defendants’ son and a family friend. Regrettably, Ann was found “unconscious on a floating dock.” In response to defendants’ interrogatories, plaintiffs allege Ann sustained neurological and cognitive injuries as a result of the incident.

Dismissal affirmed

The Court explains that certain preemptive acts that appear to be driven by the protection of property are, at their core, adjuncts to the protection of human life and thus may give rise to a cause of action under the rescue doctrine. By contrast, the uncontested evidence here shows that Samolyk’s actions were based solely on her perception of danger to the dog’s life. The complaint was properly dismissed because the decision to jump into the canal to save the dog’s life does not give rise to a cognizable claim under the rescue doctrine.

There are dogs who contribute far more love and devotion to the common good than many humans. 

My dog Max has authorized me to state he would join my dissent. (Mike Frisch)

June 13, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, June 2, 2022

Breaking News: Weinstein Conviction Affirmed

The New York Appellate Division for the First Judicial Department has affirmed Harvey Weinstein's conviction.

Defendant Harvey Weinstein, a famous and highly successful movie and television producer, was charged with one count of criminal sexual act in the first degree against Miriam Haley, and rape in the first degree and rape in the third degree against Jessica Mann. He was also charged with two counts of predatory sexual assault, based on his alleged assaults of Haley and Mann, two women who were trying to make a name for themselves in the entertainment industry. Shortly before trial, the People were granted permission to include defendant's alleged rape of Annabella Sciorra, a well-known actor, in 1993, as an alternate predicate to each count of predatory sexual assault.

As relevant here, the trial featured testimony from Haley, Mann, and Sciorra. In addition, three other women testified who were burgeoning actors. They alleged that they too were sexually assaulted by defendant. The People offered their testimony as Molineux evidence (People v Molineux, 168 NY 264 [1901]). Molineux evidence relates to crimes or bad acts committed by a criminal defendant that are not part of the pending case, but which helps to explain the conduct for which the defendant is being tried. Here the evidence was offered by the People because of the multifaceted nature of defendant's relationships with Haley and Mann. These relationships included episodes of consensual sex, some of which occurred after the alleged assaults, and behavior by complainants in the days and even years after the charged episodes, that to jurors could seem incongruent with what would be expected from a victim of a sex crime. The trial court agreed with the People that complainants' behavior before and after the sexual encounters risked masking the fact that the alleged assaults were nonconsensual, and that the Molineux witnesses placed the incidents in a more accurate context.

Another witness was Dr. Barbara Ziv, a forensic psychiatrist. The People presented her as an expert on the subject of rape trauma syndrome, a recognized phenomenon that causes victims of sexual assault to engage in behavior vis-Á-vis their assailants that is counter-intuitive to what outside observers would expect. Defendant hoped to counter Dr. Ziv's testimony with that of two experts, Dr. Deborah Davis and Dr. Elizabeth Loftus, whom he offered for the purposes of testifying about factors affecting memory of sexual encounters, or statistics on false or delayed reporting of sex offenses. However, while the court ruled that both witnesses could testify about memory in general and how it is flawed in its ability to recover traumatic events, it precluded testimony about how memory of sexual assault is specifically affected. In the wake of that ruling, defendant decided to have only Dr. Loftus testify on his behalf.

Defendant did not testify. Had he chosen to do so, the People were prepared to subject him to a cross-examination that exposed to the jury a host of evidence intended to impeach his credibility, such as deceptive acts and bullying behavior that included infliction of mental and physical abuse on people who worked for him. The material that the People sought permission to introduce into the trial through a Sandoval (People v Sandoval, 34 NY2d 371 [1974]) motion consisted of 32 separate bad acts. In the end the trial court precluded the People from making any reference to certain acts that would be too prejudicial or too non-specific, or where a ruling in the People's favor would be inconsistent with the limitations the court placed on the People's ability to present Molineux evidence.

Other witnesses whose testimony was relevant to the arguments presented by defendant on this appeal included Emmanuella Postacchini, an Italian actor who Haley alleged defendant arranged, without her consent, to engage in group sex with her and defendant. In addition, the People called the actor Rosie Perez, a close friend of Sciorra's, to corroborate the latter's testimony about defendant's alleged rape of her. The People also presented the testimony of Elizabeth Entin, a friend of Haley's who discussed conversations with Haley immediately after defendant's alleged assault of Haley. Defendant called Talita Maia, a friend of Mann's, and Tommy Richards, another friend of Mann's who was also a talent agent. They testified about, inter alia, Mann's behavior immediately after the incident that formed the basis of the rape charges against defendant.

Defendant was acquitted of the charge of first-degree rape against Mann and both counts of predatory sexual assault and convicted of third-degree rape against Mann and first-degree sexual act against Haley. On appeal, he maintains, inter alia, that the conviction for third-degree rape against Mann was based on insufficient evidence, and that that conviction, as well as the conviction for first-degree sexual act against Haley, were against the weight of the evidence. He argues that the complainants' behavior both before and after the charged incidents, which included voluntary sex, and sending communications to him that were both flattering and affectionate, belie the People's theory that the complainants did not consent to those sexual engagements. He further claims that the trial court unduly prejudiced him and prevented an acquittal by admitting the testimony of the three non-complainant women regarding sexual offenses committed against them by defendant. In addition, he argues that the court granted the People's Sandoval application without regard to the fact that the sheer number of bad acts it allowed the People to use in cross-examination would preclude him from taking the stand in his own defense, for fear that those uncharged acts would, on their own, poison the jury against him. Defendant also contends that the trial was unfair because the court permitted the People's expert witness to opine on the complainants' credibility, while severely curtailing his own experts' testimony. In addition, defendant maintains that the court unfairly permitted one of the jurors to sit and participate in deliberations notwithstanding that she allegedly lied to get a spot on the jury and was biased against him because she had been a victim of sexual abuse, was intimately familiar with the dynamics between predatory men and their victims, and had a profit motive for serving.

For the following reasons, we reject defendant's arguments, and affirm the conviction in all respects.

(Mike Frisch)

June 2, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, May 24, 2022

No Transformative Steps

The Wisconsin Supreme Court has dismissed a criminal appeal as improvidently granted in a per curiam decision.

A concurrence by Judge Rebecca Grassl Bradley

Justice Dallet seems to suggest Lee's case somehow offers an avenue for taking "transformative steps" to implement policy changes.  As she sees it, "Lee's appeal provided the court with the chance to highlight the problems with our appointed-counsel system, so all three branches of government can begin working toward solutions."  That's not part of our case-deciding function. When we grant a petition for review, we resolve issues of law.


The criminal justice system has already failed Nhia Lee twice, and by dismissing his appeal, we fail him as well. First, he was not promptly appointed counsel after being charged with felony drug and identity theft offenses. Second, the circuit court and court commissioners, often over Lee's pro se objections, erroneously exercised their discretion by repeatedly extending the 10-day statutory time limit for holding a preliminary examination solely because the State Public Defender's Office (SPD) had not yet appointed counsel for Lee.

Noting that the defendant was held for 101 days without counsel

Now, with no explanation, the court dismisses his appeal as improvidently granted. By doing so, we minimize the important questions Lee's case raises about the efficacy of Wisconsin's process for appointing counsel for indigent defendants, which protects one of a defendant's most important constitutional rights...I write separately to discuss the systemic issues highlighted by Lee's case.

Systemic failure

The facts of this case are concerning, and reflect a breakdown in our system of appointing attorneys for indigent defendants. Even prior to the COVID-19 pandemic, SPD staffing shortages and a low hourly rate for appointed counsel resulted in delays in finding counsel for indigent defendants, especially to more rural parts of the state. Delays will likely increase as the criminal-justice system responds to a statewide backlog of more than 17,000 felony cases.

Although circuit courts cannot solve all of the state's appointed-counsel problems on their own, they can help to prevent unjust delays by ensuring that extensions of time for holding a preliminary examination are granted only upon a finding of cause. Circuit courts should also seriously consider using their power to appoint counsel at county expense,
especially when they find, as the circuit court put it in this case, that the delay is "very, very close to . . . a constitutional violation."

Judge Ann Walsh Bradley joined the dissent. (Mike Frisch)

May 24, 2022 in Current Affairs | Permalink | Comments (0)

Friday, May 20, 2022

Corporate Director Of Customer Service May Be Terminated For Racially-Insensitive Facebook Comments

The New Jersey Appellate Division affirmed the power of a private company to discharge an at-will employee for "racially insensitive comments" on a private Facebook page where her employment was "prominently stated" 

The issue raised in this appeal is whether the First Amendment or Article I, Paragraph 6 of the New Jersey Constitution prevents a private employer from terminating one of its at-will employees for posting racially insensitive comments about the Black Lives Matter movement on her personal Facebook account. Defendants AtlantiCare Medical System Incorporated and Geisinger Health System Incorporated (AtlantiCare) employed plaintiff Heather J. McVey as a Corporate Director of Customer Service. During the height of the nationwide protests concerning the murder of George Floyd by police in Minnesota, McVey posted that she found the phrase "Black Lives Matter" to be "racist," believed the Black Lives Matter movement "causes segregation," and asserted that Black citizens were "killing themselves." McVey's Facebook profile prominently stated she was an AtlantiCare Corporate Director. After it discovered the comments, AtlantiCare fired McVey and she filed a complaint alleging wrongful discharge. The trial court concluded that the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution did not bar a private employer from terminating an at-will employee and dismissed McVey's complaint...we affirm.

She had been employed there since 2005.

The posts implicated the company's written social media policies

An AtlantiCare administrator discovered McVey's Facebook posts. On June 17, 2020, an AtlantiCare Vice President called McVey to discuss her remarks. McVey acknowledged the posts and discussed some of their content.

She was suspending pending an investigation

On June 23, 2020, AtlantiCare's Senior Vice President of Administrative Services and the Chief Administrative Officer met with McVey. After McVey revealed she was recording the conversation, "the meeting ended and plaintiff was terminated." AtlantiCare told McVey the firing was due to her "repeated instances of poor management judgment – a failure to uphold AtlantiCare values."

Dismissal of her suit affirmed

AtlantiCare had previously given McVey a copy of its social media policy, which warned her to avoid posting about "any topics that may be considered objectionable or inflammatory—such as politics and religion." The policy also stated that an employee's use of social media had "the potential to affect AtlantiCare employee job performance, the performance of others, AtlantiCare's brand and/or reputation, and AtlantiCare's business interests."

McVey posted her remarks at the height of the Floyd protest demonstrations and AtlantiCare appropriately considered that the comments, and her public identification as an AtlantiCare "Corporate Director," opened its business up to the possibility of unwanted and adverse publicity and criticism. As the AtlantiCare Vice President told McVey at the June 17, 2020 meeting, "[it] was bad."

We have balanced McVey's slight interest in publicly making her position on the Black Lives Matter movement known against AtlantiCare's strong interest in protecting and fostering the "diverse set of customs, values[,] and points of view of its physicians, staff, volunteers, vendors, customers[,] and partners[.]" Under the circumstances presented in this case, AtlantiCare did not violate a clear mandate of public policy when it terminated McVey's employment.

(Mike Frisch)

May 20, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, May 18, 2022

A Headstone In Granite

The Oklahoma Supreme Court has held that a city has no duty to care for the headstones of those interred in the city burial ground

Town operates the Granite Town Cemetery as a benefit to the community. Town sells cemetery plots to individuals who are responsible for the burial of their decedents. Those individuals also purchase and are responsible for the placement of the monuments and headstones on the cemetery plots.

Mother and Son attended a funeral at the Granite Town Cemetery. During their visit, Son played near the graves of Amanda Bryan and James Bryan. Ms. Bryan was interred in 1918, and Mr. Bryan was interred in 1927. Son came in contact with the Bryans' headstone, and the headstone fell over, injuring Son.

The court here reversed the decision of the Court of Civil Appeals, which had reversed the grant of summary judgment to the defendant

We hold Town owed no duty to Son with regard to the headstone placed on the Bryans' cemetery plot. Town did not own the headstone belonging to the Bryans and therefore had no duty to maintain or inspect it. To hold otherwise would impose a duty on Town (and other publicly owned cemeteries) to maintain every headstone installed in a cemetery into perpetuity. We affirm the district court's judgment.

Location, location, location

The alleged defect--the headstone--was not placed by Town near a walkway belonging to Town. Rather, the headstone was placed on the easement belonging to the purchaser of the cemetery plot. This matter is also not as in Moran wherein we noted that the defendant could be held responsible for an injury that occurred for not acquiring knowledge of the condition of its uncovered sewer manhole; the headstone at issue did not belong to Town. 2003 OK 57, ¶ 10, 77 P.3d at 592. Even more, unlike in McCathern and Moran, the record before us fails to establish that any defect in the headstone was known by Town or would have been discovered by Town upon inspection.

Whether Town was exempt from liability under [governmental immunity] is not determinative of whether Town had a duty to inspect the headstone. Instead, Town had no duty to inspect the headstone because it was not owned, placed, or controlled by Town.

(Mike Frisch)

May 18, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, May 12, 2022

National Law Journal Commentary on Prosecuting Defense Counsel

I highly recommend an article that just appeared in the National Law Journal entitled Prosecuting Defense Counsel by Geremy Kamens, Rebecca LeGrand and my Georgetown colleague Abbe Smith.

The article justifiable decries the federal prosecution of defense attorney Joshua Treem and investigator Sean Gordon (represented by Ms. LeGrand). The article notes that Mr. Treem, who was acquitted of the charges, is a highly-esteemed former federal prosecutor and longtime defense counsel with a sterling reputation for integrity and professionalism.

In the interest of full disclosure. Josh and I have been friends since about 1975. 

I was a freshly-minted assistant federal public defender (the fourth person hired for the just-created Maryland office) and had moved to Columbia MD. For the next few years until I left for private practice in DC, I carpooled with three AUSAs Josh, Gerry Martin, and the late Joe Fairbanks.

Our free parking spots were up against the warehouse that is now part of Camden Yards.

Oh the stories but...

Nothing is more sacred than the carpool privilege.

As a former bar prosecutor, I am fully aware of the power that comes with the privilege of the ability to institute charges.

I agree with the authors that the prosecution of Messrs. Treem and Gordon is an object lesson in abuse of that power. (Mike Frisch)

May 12, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, April 5, 2022

My Pet Chickens

A next-door-neighbors dispute in the Sleepy Hollow subdivision led the North Carolina Court of Appeals to conclude that four chickens were household pets

“The issue is, what is chicken?” This is the opening line in Frigaliment Importing Co. v. B. N. S. Int’l Sales Corp., 190 F. Supp. 116, 117 (S.D.N.Y 1960), a case studied by most law students when learning about principles of interpreting contract provisions. This present appeal involves the fate of four chickens and whether their presence in a residential planned community violates the private restrictive covenants governing that community.

I must have skipped that class

Turning to the 1998 covenant, we conclude that the keeping of poultry is clearly forbidden by the covenant’s first clause, as chickens are “poultry.” However, we must determine whether the covenant’s second clause could reasonably be construed to allow poultry if kept as “household pets.” We conclude that it does: While the first clause forbids the keeping of any “animals,” the second clause clearly allows the keeping of animals, so long as they are “household pets” and otherwise not used for a commercial purpose. In the same way, where the first clause forbids the keeping of “poultry,” the second clause could be reasonably read to allow poultry—which, we note, are animals—kept as “household pets” and otherwise not kept for any commercial purpose.

The court found a precedent involving Nigerian Dwarf goats persuasive.

But a remand on the effectiveness of later covenant amendments

We are not holding that the 2020 covenant is invalid. It may be that the covenant was voted on at a meeting. On remand, Defendants are free to move the trial court for leave to amend their answer to assert the 2020 amendment as a defense. However, the recorded document that was before the trial court and that is in our record states that the document was adopted by “written agreement.” Accordingly, we cannot say that the trial court abused its discretion in denying Defendants’ motion based on the 2020 amendment.

(Mike Frisch)

April 5, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, March 22, 2022

Failed Ambition

The United States Court of Appeals for the District of Columbia Circuit dismissed an appeal of an order referring an attorney to the Committee on Grievances

To call the underlying action in this case ambitious would be an understatement. On December 22, 2020, just over two weeks before Congress was to certify the presidential election results, plaintiffs sued Vice President Pence, the U.S.  of Representatives, the U.S. Senate, the Electoral College, and a raft of state officials to prevent the counting of their states’ electoral votes. Invoking Article II of the Constitution, as well as the Equal Protection Clause and the Due Process Clause, plaintiffs argued that only state legislatures may certify Presidential electors. They sought judgments declaring numerous state and federal election laws unconstitutional and an injunction barring the Vice President and Congress from counting their states’ electoral votes “in current and future elections” or, “[a]lternatively,” an order requiring “the State Defendants’ state legislatures to meet in their respective States to consider post-election certification of their respective Presidential electors.” Compl. at 115.

The same day plaintiffs filed suit, they moved for a preliminary injunction to prevent the defendants from certifying state electors or counting their votes absent postelection certification from state legislatures. Denying that motion, the district court called “the legal errors underpinning this action manifold,” pointing to several shortcomings: (1) the plaintiffs lacked standing; (2) the court appeared to lack personal jurisdiction over the defendants; and (3) the suit’s Article II argument not only lay “somewhere between a willful misreading of the Constitution and fantasy,” but also contravened two Supreme Court decisions. Wisconsin Voters Alliance v. Pence, 514 F. Supp. 3d 117, 120–21 (D.D.C. 2021). On top of that, the district court pointed out that, despite insisting that the suit was “‘not about voter fraud,’” the complaint dedicated scores of pages to alleging voter fraud. Id. at 119 (quoting Compl. ¶ 44). These flaws, together with plaintiffs’ failure to serve the defendants and the action’s eleventh-hour timing, made it “difficult to believe that the suit [was] meant seriously,” rather than as a “symbolic political gesture[].” Id. at 121. Accordingly, the district court stated it would “determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel,” Erick G. Kaardal. Id. at 121–22.

Following Congress’s certification of the electoral vote, plaintiffs voluntarily dismissed their suit, and the court ordered Kaardal to show cause why he should not be referred to the Committee on Grievances. Kaardal’s several-hundred-page response failed to allay the court’s concerns. In an order reiterating the suit’s many flaws, the court concluded that it would “refer the matter to the Committee via separate letter so that it may determine whether discipline is appropriate.” Wisconsin Voters Alliance, 2021 WL 686359, at *1. In doing so, the court “expresse[d] no opinion on whether discipline should be imposed or, if so, what form that should take.” Id. at *2.

Kaardal now appeals and urges us to vacate the referral order, claiming that the district court “abused its discretion” by (1) issuing an order “based on an erroneous view of the law or a clearly erroneous assessment of the evidence,” Appellants’ Br. 14, and (2) announcing the decision to make the referral in a public, non-confidential proceeding, id. at 29–34. Given the unusual posture of this appeal, our court appointed Matthew X. Etchemendy as amicus curiae to address whether Kaardal has standing to appeal. He has ably discharged this duty, and we thank him for his assistance.

A referral is not an appealable final order

Measured against this standard, the district court’s referral order is non-final. Rather than “fixing [Kaardal’s] rights and liabilities,” the order merely initiates disciplinary proceedings.

As the Carpenters might sing, we've only just begun

If the Committee deems a complaint potentially actionable, an investigation may ensue, either by the Committee or by the Office of Bar Counsel. Ultimately, the Office of Bar Counsel or the Disciplinary Panel, composed of three district court judges, decides whether an attorney should face punishment and, if so, what disciplinary measures are appropriate. Along the way to a final decision, there are multiple opportunities to discharge a complaint meriting no further action, and if the Disciplinary Panel reaches an adverse decision, the attorney may appeal to our court

The panel consisted of Circuit Judges Tatel, Katsas and Supreme Court nominee Circuit Judge Jackson. (Mike Frisch)

March 22, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, March 17, 2022

The Grapes Of Wrath (And Sam's Club)

Busy day for slip-and-fall law as the New Jersey Supreme Court affirmed a judgment for Sam's Club  in a claim by a patron who had slipped on loose grapes.

The appeal involved the failure to give a "mode of operation" jury instruction.

From the headnote

Here, the Court finds that the mode of operation rule does not apply to the sale of grapes in closed clamshell containers. Sam’s Club is a self-service business, and there was geographic proximity between plaintiff’s fall and the self-service sale of grape containers. But Sam’s Club permitted only the self-service sale of prepackaged sealed grape containers, not grapes, on the display. The Court finds it compelling that Sam’s Club elected not to sell grapes in open-top, vented plastic bags, like those found to create a foreseeable risk of spillage in Nisivoccia, and it finds no nexus between plaintiff’s fall on grapes and Sam’s Club’s self-service sale of grape containers. The Court is not persuaded by the argument that Sam’s Club knew its customers occasionally opened the grape containers in the store because the clamshell package itself was secure and because customers were not permitted to open the containers -- doing so was tampering with the product. (pp. 20-23)

JUSTICE ALBIN, dissenting, writes that the “mode-of-operation” rule should apply here because Sam’s Club knew that customers opened grape containers to taste the goods, and it was reasonably foreseeable that loose grapes would fall to the floor, endangering unsuspecting customers. Justice Albin states that the burden of production should have shifted to Sam’s Club to show that it took reasonable measures, such as checking the aisles, to mitigate foreseeable dangers and avert preventable accidents. According to Justice Albin, the majority’s approach will lead to less safe conditions in stores, more accidents, and an increased number of blameless and uncompensated victims. In Justice Albin’s view, Jeter was entitled to have a jury decide whether Sam’s Club acted as a “reasonably prudent business.”

Be careful out there (hat tip to Michael Conrad) (Mike Frisch)

March 17, 2022 in Current Affairs | Permalink | Comments (0)

Thursday, March 10, 2022

The Law Of Lustful Disposition

The Washington State Supreme Court affirmed in part, reversed in part and remanded a criminal conviction in a case involving allegations of sexual abuse of a child

In this case, we are asked to examine the “lustful disposition” doctrine. We are also asked to evaluate whether a prosecutor’s statements in closing, asking the jury to decide if the witnesses were telling the truth, constitute misconduct that—absent an objection—was so prejudicial that reversal is warranted. We conclude that the term “lustful disposition” is archaic and reinforces outdated rape myths and misconceptions of sexual violence. Moreover, use of that term wrongly suggests that evidence of collateral offenses relating to a specific victim may be admitted for the purpose of showing that the defendant has a propensity for committing sexual misconduct. Therefore, we now reject the “lustful disposition” label and hold that “lustful disposition” is not a distinct or proper purpose for admitting evidence. To the extent our precedent indicates otherwise, it is disavowed. However, rejection of the label “lustful disposition” does not modify our established doctrine of allowing “[e]vidence of other crimes, wrongs, or acts” to be admitted as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” pursuant to ER 404(b). In this case, we conclude that evidence of Crossguns’s uncharged acts of sexual assault was properly admitted for permissible ER 404(b) purposes. Therefore, the trial court’s reference to lustful disposition in its decision admitting the evidence was harmless. Further, we conclude that the prosecutor’s statements constitute misconduct, but the prejudice could have been corrected by an instruction. Therefore, we affirm the Court of Appeals in part and reverse in part, and remand to the Court of Appeals for further proceedings consistent with this opinion.

The term is a mislabel for admissible evidence under Rule 404

This demonstrates that “lustful disposition,” properly understood, is not a distinct purpose for admitting evidence, but a label used to refer to permissible ER 404(b) purposes in the specific context of sex crimes. This anachronistic label is incorrect and harmful. It is often incorrectly used to admit evidence of behavior that is prominent in crimes of sexual abuse, such as grooming, victim identification, and planning, which has nothing to do with general sexual attraction. Moreover, the term “lustful disposition” reinforces the myth of the pathological, crazed rapist who is a stranger to the victim. By continuing to label this kind of evidence as proof of a “lustful disposition,” we perpetuate other rape myths that improperly focus on the victim. This reinforces incorrect and harmful misconceptions about sexual assault. We therefore conclude the term “lustful disposition” is both incorrect and harmful. We reject the “lustful disposition” label, and to the extent that our precedent indicates that “lustful disposition” is a distinct, permissible purpose for admitting evidence, we clarify that it is not.

The prosecutor had argued that it was the jury's task to decide who told the truth

The prosecutor’s statements mispresented the jury’s role, which is to determine whether the State has proved the offenses beyond a reasonable doubt.

The prosecutor's reference to "eye contact" was a slur on the defendant's Blackfeet Nation heritage

While Crossguns does not challenge these statements by the prosecutor in closing argument, we note that it is inappropriate for counsel to utilize any appeal to racist stereotypes to bolster their arguments.

The Court of Appeals had reversed the conviction on prosecutorial misconduct grounds.

Justice McCloud dissented

The jury heard extensive, highly prejudicial evidence of uncharged acts of sexual misconduct extremely similar to the acts comprising the charged crimes. The trial court admitted that evidence for several purposes, including that it was relevant to proving the defendant’s “lustful disposition” toward R.G.M.

I agree with the majority that we should abandon the “lustful disposition” doctrine as incorrect and harmful. But I disagree with its holding that any error in admitting the challenged evidence to show “lustful disposition” was harmless because the evidence was admissible for a different ER 404(b) purpose. Actually, the evidence admitted under the lustful disposition moniker was classic propensity evidence—and ER 404(b) bars admission of such propensity evidence under any name...

But the majority does not abandon the [lustful disposition] doctrine at all. The majority just changes its name. That solves nothing. I therefore disagree with the remainder of the majority’s reasoning and conclusions on the admissibility of the challenged evidence for another purpose.

(Mike Frisch)

March 10, 2022 in Current Affairs | Permalink | Comments (1)

Wednesday, March 9, 2022

A House In The Hamptons Is Not A Home

The New York Appellate Division for the Second Judicial Department has held that a divorcing couple's Hamptons retreat was not a residence for venue purposes when the wife sheltered there with her pregnant immunocompromised daughter during the pandemic

This case presents two issues relating to the parties’ residence: (1) whether the parties’ seasonal use of the Southampton house on weekends prior to March 2020 made them residents of Suffolk County; and (2) whether the defendant’s retreat to the Southampton house at the outset of the COVID-19 pandemic made her a resident of Suffolk County. We conclude that neither of these things made the parties residents of Suffolk County.

The defendant clearly established that the parties primarily resided in New York County. The defendant submitted, among other things, copies of: the parties’ income tax returns, listing their address in New York County as their residence and reflecting their payment of New York City income taxes; the defendant’s voter registration showing that she was registered to vote in New York County; the defendant’s driver license listing her address in New York County; motor vehicle records showing that the parties’ cars were all registered in New York City or were in the process of having the registration transferred from New Jersey to New York City; an email from the plaintiff to the parties’ art insurance carrier stating that the parties did not have any intention of adding any art to the Southampton house; and bank statements listing the Beresford apartment and the plaintiff’s Manhattan office as the parties’ addresses.

Although a person may have more than one residence, as in, for example, “a joint custody situation or other shared living arrangement” (Yaniveth R. v LTD Realty Co., 27 NY3d at 194), contrary to the plaintiff’s contention, the defendant demonstrated that neither party resided in Suffolk County at the time of the commencement of the action.

The plaintiff husband had initiated the divorce in Suffolk County.

The court here concluded that the trial court improperly found venue there and granted defendant wife's motion to transfer the matter to New York County.

The background

The parties met while attending Columbia Law School and were married in 1985. After graduating law school, they moved to New Jersey, where they raised their three daughters. The defendant ultimately became a Superior Court Judge in Newark, while the plaintiff is a real estate developer with an office in Manhattan as well as a trustee of the Metropolitan Museum of Art and the chairman of that museum’s Acquisitions Committee.

Beginning in the late 1990s, the parties rented an apartment on the Upper West Side as a pied-a-terre. In 2010, the parties purchased an apartment at the Beresford, located at 81st Street and Central Park West in Manhattan.

The split and the aforementioned art collection

According to the defendant, after the parties separated in April 2019, the plaintiff began renting an apartment near East 79th Street and Fifth Avenue in Manhattan. The parties sold their New Jersey residence in 2020. The entirety of the parties collection of Old Master paintings, insured at $177 million, hangs at the Beresford apartment or the plaintiff’s apartment in New York City, except for one painting that has been consigned for auction.

Artnet News covered the consignment sale.

The aforementioned house in the Hamptons.

Meanwhile, in 2012, the parties purchased property in Southampton. In 2016, the parties demolished the existing house on the property and built a new house that cost more than $4 million. During a portion of the construction, the parties rented another house in Southampton.

According to the defendant, the parties only used the Southampton house for summer weekends, with limited exceptions.


Here, although the defendant retreated to the Southampton house in March 2020, it is undisputed that the defendant planned only to stay there temporarily to assist her immunocompromised daughter and newborn grandchild when the COVID-19 pandemic was at its zenith in New York City. Under the circumstances of this case, the defendant did not “have the bona fide intent to retain [Suffolk County] as a residence with at least some degree of permanency”

(Mike Frisch)

March 9, 2022 in Current Affairs | Permalink | Comments (0)

True Threats And Intent To Cause Terror

The Minnesota Supreme Court upheld a conviction for violation of the State's threats of violence statute applied to "true threats" on these facts

In January 2017, [defendant] Mrozinski slid an envelope under the door of the Initial Intervention Unit of St. Louis County Children’s Protection Services. She had handwritten “MISS ME YET?” on the outside of the envelope, which contained a letter and four toe tags, like ones used to identify bodies in a morgue. The letter read:






Each of the four toe tags contained the handwritten name of a different person associated with Mrozinski’s child protection matter that resulted in Mrozinski losing custody of her children. In the space on the tags labeled “case number” were handwritten numbers starting with “#1 of 9” going up to “#4 of 9.” Each toe tag also included a handwritten address for “place of death,” a date for “date of birth,” “TBD” for “date of death,” and insulting names in the other spaces. Some of the birthdays and addresses were accurate, but some were not. All four people named on the toe tags reported making changes to their daily routines and taking safety precautions accordingly. Three of the persons named said that they believed that Mrozinski was capable of carrying out her threats.

After an analysis of First Amendment precedent

Given the statutory safeguards listed above that narrow the Statute’s reach—that the threat be considered in context, that it refer to a violent crime, that the defendant be conscious of a substantial and unjustifiable risk of causing extreme fear and disregard the risk—few situations of reckless but protected threats would be swept up in criminal prosecutions. Accordingly, the Statute is not facially overbroad.

Justice Thissen dissented and would require proof of "a specific intent to cause terror"

“True threats” is a category of speech that is not protected by the First Amendment. But the boundaries of the category are ill-defined. In this case, our fundamental task is to define the contours of the true threats category. Specifically, we must determine whether the unprotected true threats category includes threatening speech or expressive conduct where the speaker does not intend to cause extreme fear in the person to whom a threat is directed. I conclude that the answer to that question is “No.” Accordingly, I dissent. Appellant Chris Mrozinski’s conviction for violating Minn. Stat. § 609.713, subd. 1 (2020), for making threats in reckless disregard of the risk of causing terror, but without any determination that she acted with a specific intent to cause terror, must be reversed.

(Mike Frisch)

March 9, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, February 16, 2022

Don't Drive Through New Miami

A non-decision reached today by the Ohio Supreme Court is summarized by Dan Trevas

The Village of New Miami will not have to refund $3 million to motorists who received camera-generated speeding tickets, the Supreme Court of Ohio ruled today.

In a 4-3 decision not to decide the case, the Supreme Court let stand the Twelfth District Court of Appeals’ October 2020 decision overturning a Butler County trial court ruling in favor of the drivers. The trial court found the village’s process for recipients to contest the speeding tickets violated their constitutional rights.

The Supreme Court heard the vehicle owners’ challenge to the New Miami automated speed enforcement program (ASEP) during oral arguments on Jan. 26. Today the Court determined the case was improvidently accepted.

Chief Justice Maureen O’Connor and Justices Sharon L. Kennedy, Patrick F. Fischer, and Melody J. Stewart ruled the case should not have been considered.

In a written dissenting opinion, Justice R. Patrick DeWine described New Miami’s ASEP as a “classic speed trap,” and stated the case presented an important question about the process that is due before the government may find citizens civilly liable and impose fines.

“A decision by this court would provide the benefit of a resolution to the live controversy in front of us as to whether the plaintiffs are entitled to a refund of their traffic fines,” he wrote. “But more importantly, by reaching a decision on the merits, we could answer the important question whether a government may deprive citizens of property through an administrative scheme that provides as little procedural protection as this one.”

Justices Michael P. Donnelly and Jennifer Brunner joined Justice DeWine’s dissent.

...The dissent questioned whether a “rational person would actually appeal” because appealing a $95 fine to common pleas court would require the payment of a $285 filing fee.

(Mike Frisch)

February 16, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, January 26, 2022

No Forced Arbitration Of Structured Settlement Transfers Of Rights

The Maryland Court of Special Appeals declined to enforce arbitration agreements between lead paint victims who had settled claims and a company that purchased the resulting income stream

Crystal Linton and Dimeca D. Johnson, and other putative class members, had obtained structured settlements, and the resulting stream of payments, after resolving their lead paint exposure claims. Ms. Linton, Ms. Johnson, and the others (“Plaintiffs”) later signed Purchase and Sale Agreements(“Agreements”) that purported to transfer their rights to those income streams to Access Funding LLC and/or affiliated entities (“Access”) in exchange for discounted lump sum cash payments. Ms. Linton and Ms. Johnson filed this action in July 2016, alleging claims of negligence, misrepresentation, fraud, and conspiracy in connection with those Agreements.

The Agreements contained arbitration clauses, and the Defendants filed petitions to compel arbitration in August 2016.


Compelling arbitration in this case effectively would allow the Defendants to circumvent the court authorization process mandated by the Structured Settlement Protection Act. Put another way, allowing the dispute about the validity of the court’s authorization to be decided by the arbitrator would be the same as allowing Access to avoid the court at the very stage in the process where the General Assembly required the court’s approval. CJ § 5-1102. Indeed, the arbitration clause states expressly that it is not to be used for that purpose: “[t]his arbitration provision cannot be used to bypass state and federal laws requiring court approval of this transaction.” And other courts have held that companies seeking to avoid the statutorily-required court authorization process via arbitration cannot do so.

Judge Nazarian authored the opinion. (Mike Frisch)

January 26, 2022 in Current Affairs | Permalink | Comments (0)

Tuesday, January 25, 2022

Reduced Web Traffic Does Not Confer Standing

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of a lawsuit against Rep. Adam Schiff

The Association of American Physicians and Surgeons appeals the dismissal of its complaint for lack of Article III standing. The Association, joined by an individual, sued a Member of Congress who wrote to several technology and social media companies before and during the COVID-19 pandemic expressing concern about vaccine related misinformation on their platforms and inquiring about the companies’ policies for handling such misinformation. The Association, which purveys vaccine-related information online, alleged that the inquiries prompted the technology companies to disfavor and deprioritize its vaccine content, thereby reducing traffic to its web page and making the information more difficult to access. Because appellants have not established that they have standing, the court affirms the dismissal of the complaint.

Causation on reduced web traffic

Yet appellants’ allegations have not presented a plausible account of causation. Even assuming the Association’s content was indeed demoted in search results and on social media platforms, the technology companies may have taken those actions for any number of reasons unrelated to Representative Schiff. Appellants offer no causal link that suggests it was an isolated inquiry by a single Member of Congress that prompted policy changes across multiple unrelated social media platforms. The timeline of events in the amended complaint also undermines any possibility that the companies acted at Representative Schiff’s behest in particular.

Circuit Judge Rogers authored the opinion. (Mike Frisch)

January 25, 2022 in Current Affairs | Permalink | Comments (0)

The Veil Of Suspicion

Decisions in two criminal matters before the New Jersey Supreme Court hold

The only information the officer possessed at the time of the stop was the race and sex of the suspects, with no further descriptors. That information, which effectively placed every single Black male in the area under the veil of suspicion, was insufficient to justify the stop of the vehicle and therefore does not withstand constitutional scrutiny.

(Mike Frisch)

January 25, 2022 in Current Affairs | Permalink | Comments (0)

Wednesday, January 19, 2022

Page Defamation Suit Dismissal Affirmed; Trial Court Mishandled Lin Wood Pro Hac Matter

The Delaware Supreme Court has affirmed the dismissal of Carter Page's defamation suit against Oath Inc.

Dr. Carter Page, a public figure with ties to President Trump’s 2016 campaign, claimed that Oath Inc.’s online news organizations published eleven defamatory articles about him in 2016 and 2017. Michael Isikoff authored a Yahoo! News article that forms the backbone of the amended complaint (the “Isikoff Article”). Three other articles were written by employees at (“HuffPost”) and refer to the Isikoff Article (the “Employee Articles”). The remaining seven articles were written by HuffPost non-employee “contributors” (the “Contributor Articles”). The articles discuss an “intelligence report” from a “well-placed Western intelligence source” with information that Page met with senior Russian officials and discussed potential benefits to Russia if Donald Trump won the presidential election.

The Superior Court granted Oath’s motion to dismiss. It found that the Isikoff Articles and Employee Articles were either true or substantially true; Page was at least a limited purpose public figure, meaning he was required to plead actual malice by the individuals responsible for publication, and he failed to meet that standard; the fair report privilege for government proceedings applied; and Oath was protected for the Contributor Articles under the federal Communications Decency Act. Page appeals the Superior Court’s judgment except the Superior Court’s ruling that the Employee Articles were true.

We affirm the Superior Court’s judgment. The Isikoff Article describes a federal investigation into a report about Page—an investigation that existed and was being pursued by the FBI. At a minimum, the article is substantially true, and as such, Page did not state a claim for defamation based on that article. Page also fails to state a claim for defamation with respect to the remaining articles. At oral argument, Page conceded that if the Isikoff Article is not defamatory, he loses on his remaining claims. Page also failed to allege that the individuals responsible for publication of those articles acted with actual malice. Finally, Page does not contest the Superior Court’s holding that the Employee Articles were true. Because these grounds dispose of Page’s defamation claims, we do not address any of the Superior Court’s other grounds for dismissal.

The court entered a separate order chiding the trial court for its handling of l'affaire Lin Wood

Both the tone and the explicit language of the Superior Court’s memorandum opinion and order suggest that the court’s interest extended beyond the mere propriety and advisability of Wood’s continued involvement in the case before it. In fact, one cannot read the court’s order without concluding that the court intended to cast aspersions on Wood’s character, referring to him as “either mendacious or incompetent” and determining that he was not “of sufficient character” to practice in the courts of our State. We offer no opinion on the accuracy of these characterizations, but we see no evidence in the Superior Court’s record that supports them. Similarly, the court’s foray into the events of January 6 and its unequivocal finding that “[n]o doubt [Wood’s] tweets . . . incited the [] riots,” was not justified given the scope of the Rule to Show Cause and the record.

 Because the Superior Court’s revocation order is based on factual findings for which there is no support in the record and because the court failed to explain why Wood’s withdrawal would not moot the court’s concerns about the appropriateness or advisability of Wood’s continued admission, we find that the court’s revocation order was an abuse of discretion.

To be clear, when a lawyer admitted pro hac vice to practice in a trial court of this state is accused of serious misconduct in another state, the admitting trial court is not powerless to act. It might be appropriate to issue—as the court did in this case—a rule to show cause why the out-of-state lawyer’s pro hac vice status should not be revoked, and to act upon that rule if cause is not shown. But when, as here, the allegations of misconduct in another state have not yet been adjudicated, there is no assertion that the alleged misconduct has disrupted or adversely affected the proceedings in this State, and the lawyer agrees to withdraw his appearance and pro hac vice admission, it is an abuse of discretion to preclude the lawyer’s motion to withdraw in favor of an involuntary revocation of the lawyer’s admission

(Mike Frisch)

January 19, 2022 in Current Affairs | Permalink | Comments (0)