Legal Profession Blog

No Wrongful Death Claim For Pet Cat

The Idaho Supreme Court in the main affirmed a Court of Appeals decision in a lawsuit over the death of a pet cat

This case addresses the types of damages available to bereaved pet owners for the death of a family pet and the treatment of its body post-mortem. The Schrivers seek to recover damages for the emotional distress they endured after their cat died following a veterinary procedure and the body was subjected to a necropsy, allegedly performed against their will. They assert that pet ownership creates a strong emotional bond between human and pet, which makes their grief foreseeable, and therefore, compensable. They also assert that a pet’s value to its owner is relational in nature, which they argue gives rise to the recovery of non-economic damages for the loss of companionship when that pet dies as a result of alleged malpractice. In essence, the Schrivers ask this Court to recognize a wrongful death action for the loss of their cat. We decline to do so.

While the loss of a beloved pet undoubtedly brings much sadness, our decision today reflects the bedrock legal principle that pets, like livestock, are personal property. Our decision upholds the long-standing rule of law that when a pet has no fair market value at the time of its death, the proper measure of damages is the pet’s actual, economic value to the owner, including the monetary value assigned to the pet’s pedigree, habits, traits, and reputation. The pet’s valuation does not, however, include the sentimental value attached to the pet’s companionship.

We also affirm the Idaho Court of Appeals’ longstanding conclusion that emotional distress damages are not available for the destruction of an animal as part of a claim for trespass to chattels or conversion. Instead, a claim for emotional distress damages for loss of personal property must be pursued as part of a negligent infliction of emotional distress or intentional or reckless infliction of emotional distress claim. In this case, a claim for negligent infliction of emotional distress is not available to the Schrivers because that type of claim must start with a duty of care to avoid emotional harm to others. We, along with a majority of jurisdictions across the nation, decline to recognize such a duty on the part of a veterinarian. However, an action for intentional or reckless infliction of emotional distress rests not on the establishment of a duty of care but on the extreme and outrageous nature of the conduct at issue. Whether the necropsy at issue in this case rises to the level of extreme and outrageous conduct sufficient to award recovery for emotional distress is a question of fact best left to the jury. Accordingly, and for the reasons expressed more fully below, we affirm the district court’s decision in part, reverse in part, and remand for further proceedings.

Gypsy had been adopted at eleven weeks and was brought into the veterinarian for what her owner thought might be an upper respiratory infection. An IV catheter was put in a vein

Approximately two hours after the attempted cystocentesis, Dr. Raptosh checked on Gypsy and noticed that she had labored breathing; Gypsy’s heart then stopped. Dr. Raptosh attempted CPR, but Gypsy passed away.

The owner's reaction

Following Gypsy’s death, Andrea became depressed and suffered from suicidal ideation. She also suffered from migraines, sleep disturbances, and tachycardia. She sought medical treatment for her emotional distress and was ultimately placed on medications.

The precedent of the pet donkey shot on purpose

Importantly, the Idaho Court of Appeals in Gill permitted the recovery of emotional distress damages for the death of the pet donkey because the alleged conduct of the defendant in that case could be considered “extreme and outrageous,” the critical element necessary for a claim of intentional or reckless infliction of emotional distress. Id. at 1138-39, 695 P.2d at 1277-78. In each case cited by the Schrivers in which a court permitted recovery of emotional distress damages for claims of conversion or trespass to chattels that involved a pet, there is an element of outrageousness with respect to the alleged conduct of the defendants.

(Mike Frisch)

You've Got To Be Carefully Taught

The Delaware Superior Court declined the dismiss a defamation claim brought against Deadspin by a family who had come from California to attend a Kansas City Chiefs game played in Las Vegas, Nevada.

The child ("H.A.") had worn a Chiefs jersey and had painted his face red and black. His image had been briefly broadcast and the image was then circulated online.

Deadspin published the image describing the child as wearing "blackface" as showing racial animus and "surmized" that his parents had taught him his racial hatred.

The screenshot had showed only the black part of the child's painted face. The article was posted on "X" with a "Community notes" notation that the image only showed the black and not the red part of the child's face.

The family contends that they received "hateful messages and death threats" and that Deadspin had rebuffed their request that it be removed; rather, the original post had been republished.

The court ruled that these arrestions were "provably false assertions of fact and are therefore actionable" as defamation.

The court also denied a forum non conveniens motion to dismiss favoring of California of Deadspin, which is incorporated in Delaware. (Mike Frisch)

The Bellamy Salute

The United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal of defamation and related claims

In 1989, thirty-four members of the Kappa Gamma fraternity at Gallaudet University were photographed together performing the Bellamy salute, which was created in the late 19th century for the Pledge of Allegiance. Unfortunately, it now also resembles the Nazi salute. Thirty years after the photograph was taken, the president of Gallaudet, referencing it, described Kappa Gamma as the “face of systemic racism” at Gallaudet. The Washington Post republished this statement and described the photograph as depicting “anti-Semitic” behavior and a “Nazi salute.”

The plaintiffs here are three alumni of Gallaudet’s Kappa Gamma chapter, and the estate of a fourth who passed away while this litigation was pending. Two of the alumni appeared in the 1989 photograph. All four sued Gallaudet and the Post for defamation and related torts. The district court dismissed the complaint on the grounds that none of the disputed statements concerned the plaintiffs, and many of them were not actionable.

We disagree in part, but nonetheless affirm. We conclude that the statements about the photograph concerned the individuals who were in it. But we agree with the district court that those statements were protected opinions.

The history of the salute

Francis Bellamy wrote the Pledge of Allegiance and created the salute for use while reciting it. The salute is performed by holding the right arm fully outstretched at an upward angle. It was widely used in the United States beginning in 1892. But it resembles the salutes adopted by fascist Italy in the 1920s and Nazi Germany in the 1930s. So in 1942, Congress amended the Flag Code to provide that the Pledge should be performed not with a Bellamy salute, but “with the right hand over the heart.” In 2015, Gallaudet prohibited fraternities from wearing robes at public events because of their resemblance to garb worn by the Ku Klux Klan. Gallaudet did not prohibit the salute.

The Gallaudet President suspended Kappa Gamma in the wake of the George Floyd protests and made this statement by youtube video

Kappa Gamma, pictures distributed on social media of their use of hooded robes and of the salute, they have become the face of systemic racism. This behavior is unacceptable.

A second video

In a later video posted in July, [President] Cordano clarified that Kappa Gamma was “not suspended because of old photos,” but based on “new evidence” of its “intention to bring back the use of robes.”

The Washington Post covered the controversy in a series of three articles.

Students in the photograph sued

we conclude that Cordano’s statement plausibly refers to the individuals in the photograph as well as to the fraternity itself.

But

In this case, statements describing the students in the salute photo as the “face of systemic racism” and “anti-Semitic” are likewise not actionable. In the abstract, “systemic racism” is a “hopelessly imprecise” phrase and is thus not provably false...

Others might conclude that the condemnation is unfair, given a tradition dating back not to Hitler and Mussolini, but to Francis Bellamy. Regardless, we are confident that the contested statements at issue here, although inflammatory, were not provably false.

And

The alumni also allege that Cordano and the Post stated or implied that the students in the photo performed a Nazi salute. They allege that Cordano signed a “version of a Bellamy salute” that “g[ave] the appearance” of a Nazi salute. J.A. 34. And they allege that the Post reported that the students in the photograph had performed an “apparent Nazi salute.” Id. at 56–57. These statements are opinions based on facts not provably false. The parties agree that a Bellamy salute and a Nazi salute are at least similar in appearance. Id. at 22. In fact, the alumni do not identify any difference between them. And anyone inspecting the photograph—which is necessary to connect the epithets used to Costello and Millios—would easily recognize what are at a minimum obvious similarities.

The panel consisted of Henderson and Katkas (who authored the opinion), Circuit Judges, and Edwards, Senior Circuit Judge.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

I join my colleagues regarding the law that controls this case without reservation — but I do so with nose held. The highest-ranking official of a respected and public-spirited university serving specialized students for over 150 years has successfully deflected criticism and skirted responsibility in an apparently long-running controversy. And the fourth estate is once again — and under the law — blameless. The only parties to suffer are the alumni plaintiffs, whose antiquated gesture of fraternal allegiance — gratuitously publicized 35 years later — has most likely blighted the remainder of their lives.

(Mike Frisch)

Passantino Defamation Suit Survives Motion To Dismiss

A defamation suit brought by Cassidy Hutchinson's former attorney against Andrew Weissmann has survived a motion to dismiss in an order of the United States District Court for the District of Columbia (Judge AliKhan)

Plaintiff Stefan Passantino brings this action against Defendant Andrew Weissmann, alleging defamation (Count I) and injurious falsehood (Count II) stemming from a September 2023 social media post. In the post, Mr. Weissmann referredto Mr. Passantino—a lawyer—as someone “who coached [a Congressional witness] to lie.” ECF No. 1 ¶ 18.  Mr. Weissmann moves to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). ECF No. 7. For the reasons explained below, the court will grant his motion in part and dismiss Count II, but will allow Count I to proceed.

The order recounts Ms. Hutchinson's testimony

At her fifth deposition, Ms. Hutchinson discussed a line of questioning from her first deposition about the January 6 incident in the Presidential limousine. Id. 55:3-56:21. She explained that, during a break after facing repeated questions on the topic, she had told Mr. Passantino in private, “I’m f*****. I just lied.” Id. 55:15-16. Mr. Passantino responded, “You didn’t lie. . . . They don’t know what you know, Cassidy. They don’t know that you can recall some of these things. So you [sic] saying ‘I don’t recall’ is an entirely acceptable response to this.” Id. 55:16-20. He concluded, “You’re doing exactly what you should be doing.” Id. 55:23-24. Ms. Hutchinson explained that, in the moment, she “[felt] like [she] couldn’t be forthcoming when [she] wanted to be.” Id. 56:3-4.

Ms. Hutchinson did, however, state at her fifth deposition: “I want to make this clear to [the Select Committee]: Stefan [Passantino] never told me to lie.” ECF No. 1 ¶ 17; Sept. 14 Deposition, Tr. 42:11. She recalled him saying to her: “I don’t want you to perjure yourself, but ‘I don’t recall’ isn’t perjury. They don’t know what you can and can’t recall.” Sept. 14 Deposition, Tr. 42:12-13. She then reiterated to the Select Committee, “[H]e didn’t tell me to lie. He told me not to lie.” Id. 42:20-21

The allegedly defamatory part of the tweet

Hunt also is Cassidy Hutchinson's good lawyer (not the one who coached her to lie)...

Plaintiff alleges

Mr. Passantino alleges that Mr. Weissmann’s post “deeply damaged [his] 30-year reputation and caused him to lose significant business and income.” Id. ¶ 21. Prior to the allegations surrounding his representation of Ms. Hutchinson, Mr. Passantino had “never been accused by a client, or anyone else, of unethical or illegal behavior.” Id. ¶ 8

Governing law

Deciding whether a statement implies verifiably false facts or instead an opinion is a question of law. See Farah, 736 F.3d at 534-35. In conducting this inquiry, the “publication must be taken as a whole, and in the sense in which it would be understood by the readers to whom it was addressed.” Id. at 535 (quoting Afro-Am. Publ’g Co. v. Jaffe, 366 F.2d 649, 655 (D.C. Cir. 1966) (en banc)). Consistent with District law, the D.C. Circuit has adopted a four-factor test to determine whether a statement implies a verifiably false assertion of fact or is a nonactionable opinion. Courts must consider: (1) “the common usage or meaning of the allegedly defamatory words themselves,” (2) “the degree to which the statements are verifiable,” (3) “the context in which the statement occurs,” and (4) “the broader social context into which the statement fits.” Ollman v. Evans, 750 F.2d 970, 979-84 (D.C. Cir. 1984) (en banc); see Myers v. Plan Takoma, Inc., 472 A.2d 44, 47 (D.C. 1983). There is no set order or hierarchy to these factors. Ollman, 750 F.2d at 980 n.17 (“We do not . . . suggest that the four-factor analysis is to be undertaken in a rigid lock-step fashion . . . [A] logical starting point . . . may be the broad social context or . . . the language surrounding the challenged statements[.]”).

Actionable

Nothing about the surrounding context suggests that the reference to Mr. Passantino’s “coach[ing]” Ms. Hutchinson “to lie” is facetious or sarcastic. It presents neutrally, nestled between a statement of opinion and a statement of fact. Mr. Weissmann contends that because the challenged statement follows a statement of opinion, it must also be an opinion, especially because it comes in the form of a parenthetical. ECF No. 15, at 10. Mr. Passantino takes the opposite view, arguing that the challenged statement must be a statement of fact because it is followed by a statement of fact. ECF No. 13, at 13-14. Given how short the full statement is, the court cannot divine much from the contested language’s location to determine whether it is presented as a subjective thought or a verifiable fact.

...the court concludes that the overall analysis of the Ollman factors suggests that his statement was not a subjective opinion.

(Mike Frisch)

Unlawful Disclosure Claims Survive In Hunter Biden I.R.S. Suit

The United States District Court for the District of Columbia (Judge Contreras) granted and denied in part motions in a suit filed on behalf of Hunter Biden against the Internal Revenue Service

Plaintiff Robert Hunter Biden sued the United States Internal Revenue Service (“IRS”), alleging that two IRS employees and their private attorneys unlawfully disclosed his confidential tax return information in violation of 26 U.S.C. § 6103. Biden additionally alleges that the IRS failed to establish proper safeguards over that tax return information in violation of the Privacy Act, 5 U.S.C. § 552a. Biden seeks declaratory judgment, compensatory and punitive damages, attorney’s fees, and an order compelling the IRS to produce certain documents and adopt a security plan that satisfies the Privacy Act’s requirements. The IRS moves to dismiss the Privacy Act claim, Biden’s non monetary claims, and any compensatory damages claims arising from disclosures by the employees’ private attorneys rather than the employees themselves. The IRS employees additionally move to intervene in this lawsuit, both permissively and as of right, asserting that their interests will be impaired if Biden prevails in this case.

For the reasons stated below, the Court grants the IRS’s motion to dismiss Biden’s Privacy Act claim and any non monetary claims for relief. The Court concludes, however, that the IRS is liable for its employees’ actions through their non-employee agents and denies the IRS’s motion to dismiss Biden’s unlawful disclosure claims. Finally, the Court denies the employees’ motion to intervene, concluding that they lack a sufficient stake in the outcome of this litigation to support intervention as of right and that permissive intervention would unduly prejudice the parties and add complexity to the litigation.

Allegations

According to the allegations in the Amended Complaint, which the Court accepts as true at this stage of the litigation, two IRS agents—Gary Shapley and Joseph Ziegler—engaged in the “unauthorized public disclosure” of Biden’s “confidential return information during more than 20 nationally televised and non-congressionally sanctioned interviews and numerous public statements” either personally or by directing legal counsel to make those appearances. Am. Compl. ¶ 4, ECF No. 15

The court analysed the history of confidentiality protections provided to tax returns

The Court approaches the case with this background, which indicates that Congress intended taxpayers’ return information to be broadly protected from disclosure to prevent abuse by Executive officers and politicization of the voluntary assessment system. The evolution of these statutes additionally demonstrates that Congress specifically decided that civil liability for federal employees’ unlawful activity should lie against the federal government and not against the employees themselves.

Intervention denied

The Court additionally finds that the IRS agents’ intervention would add undue complexity to the case. See Fed. R. Civ. P. 24(b)(3). The IRS agents make plain that they hope to exercise control over the conduct of discovery—including other parties’ discovery and depositions. See, e.g., Reply in Support of Mot. Intervene at 4. The Court concludes that this would unnecessarily complicate discovery that, at present, already promises to be unusually complex because it will likely implicate lawyers, Congress, and news organizations. For these reasons, the Court denies the IRS agents’ motion to intervene permissively.

(Mike Frisch)

Ghislaine Maxwell Conviction Affirmed

Ghislaine Maxwell's criminal conviction has been affirmed by the United States Court of Appeals for the Second Circuit

On appeal, the questions presented are (1) whether Jeffrey Epstein’s Non-Prosecution Agreement (“NPA”) with the United States Attorney’s Office for the Southern District of Florida (“USAO-SDFL”) barred Maxwell’s prosecution by the United States Attorney’s Office for the Southern District of New York (“USAO-SDNY”); (2) whether Maxwell’s second superseding indictment of March 29, 2021 (the “Indictment”) complied with the statute of limitations; (3) whether the District Court abused its discretion in denying Maxwell’s Rule 33 motion for a new trial based on the claimed violation of her Sixth Amendment right to a fair and impartial jury; (4) whether the District Court’s response to a jury note resulted in a constructive amendment of, or prejudicial variance from, the allegations in the Indictment; and (5) whether Maxwell’s sentence was procedurally reasonable.

We hold that Epstein’s NPA did not bar Maxwell’s prosecution by USAO-SDNY as the NPA does not bind USAO-SDNY. We hold that Maxwell’s Indictment complied with the statute of limitations as 18 U.S.C. § 3283 extended the time to bring charges of sexual abuse for offenses committed before the date of the statute’s enactment. We further hold that the District Court did not abuse its discretion in denying Maxwell’s Rule 33 motion for a new trial based on one juror’s erroneous answers during voir dire. We also hold that the District Court’s response to a jury note did not result in a constructive amendment of, or prejudicial variance from, the allegations in the Indictment. Lastly, we hold that Maxwell’s sentence is procedurally reasonable.

Epstein NDA did not bind New York federal prosector

Since 1789, while the number of federal districts has grown significantly, the duties of a U.S. Attorney and their scope remain largely unchanged. By statute, U.S. Attorneys, “within [their] district, shall (1) prosecute for all offenses against the United States; (2) prosecute or defend, for the Government, all civil actions, suits or proceedings in which the United States is concerned.” Again, the scope of the duties of a U.S. Attorney is cabined to their specific district unless otherwise directed.

In short, Annabi controls the result here. Nothing in the text of the NPA or its negotiation history suggests that the NPA precluded USAO-SDNY from prosecuting Maxwell for the charges in the Indictment. The District Court therefore correctly denied Maxwell’s motion without an evidentiary hearing.

New trial motion based on juror non-disclosure of childhood abuse

Maxwell contends that she was deprived of her constitutional right to a fair and impartial jury because Juror 50 failed to accurately respond to several questions related to his history of sexual abuse as part of the jury questionnaire during jury selection. Following a special evidentiary hearing, the District Court denied Maxwell’s motion for a new trial.

We review a District Court’s denial of a motion for a new trial for abuse of discretion. We have been extremely reluctant to “haul jurors in after they have reached a verdict in order to probe for potential instances of bias, misconduct or extraneous influences.” While courts can “vacate any judgment and grant a new trial if the interest of justice so requires,” Fed. R. Crim. P. 33(a), they should do so “sparingly” and only in “the most extraordinary circumstances.” A district court “has broad discretion to decide Rule 33 motions based upon its evaluation of the proof produced” and is shown deference on appeal.

The district court did not abuse its discretion in denying the new trial motion. (Mike Frisch)

Online Review Litigation Revived

Katheen Maloney has a case summary of a District Court of Appeals decision on the web page of the Ohio Supreme Court.

Prior to the posted reviews at issue

Prior to appellees’ reviews, appellant had a perfect 5-star rating on GMB. Due to this perfect 5-star rating, appellant’s firm was ranked near the top of Google search results for personal injury law firms.

The court

The fake reviews posted by appellees are designed and intended to manipulate Google’s rating system for appellant’s business. The fake reviews falsely purport to have been authored by actual clients of appellant and include false statements that are specifically intended to destroy the public’s trust in appellant to provide ethical and competent legal representation.

Summary

More than 60 fake reviews posted from Ohio on a Texas law firm’s online business page may be defamatory because they are more than opinions and can be proven true or false, the Fifth District Court of Appeals ruled.

The Fifth District found that the reviews on the Google business page for Amaro Law Firm contain statements describing fictitious client relationships, in which the supposed clients criticized the firm for a lack of communication or follow-up. Because all of those statements can easily be checked, the firm can continue its defamation lawsuit against two Licking County residents, the recent opinion concluded.

Nearly 100 fake reviews were posted in 2022 on the Houston law firm’s Google business page. The reviews were associated with separate Google accounts listing different names. Amaro’s 2023 lawsuit in Licking County Common Pleas Court alleged the reviewer names were never potential or actual clients of the law firm.

The IP address used to post the reviews was traced back to the residence of Patrick and Ronald DeMichael in Licking County. Before the reviews were posted, the law firm had the highest rating of five stars and more than 1,500 positive reviews. Businesses with higher rankings appear more prominently in search and map results on Google.

The Fifth District ruled the remaining fake reviews from the DeMichael IP address – including ones that had stars only – are protected opinions and cannot be defamatory.

The trial court had dismissed the Amaro lawsuit in December 2023, finding all of the reviews were opinions protected by the First Amendment. The appeals court’s decision overturns the judgment, and the case returns to the trial court for additional proceedings.

Ninety-Nine Reviews Posted in Five Months From One Address

The Amaro firm specializes in personal injury cases. The firm’s complaint asserted that its listing on Google My Business was flooded with 99 fake reviews with three stars during a five-month period from February to June 2022. The lawsuit alleged defamation, invasion of privacy, trade libel, and tortious interference with business relations.

The firm argued the reviews were false because the names connected to the email accounts weren’t potential or actual clients. The reviews were designed to spread a false impression of widespread client dissatisfaction with the firm’s services, and the statements injured the firm’s reputation, Amaro contended. It stated that the fake reviews caused a noticeable decline in inquiries and new clients generated through the Google page.

In August 2023, the DeMichaels asked the trial court to dismiss the case. They argued in part that the reviews were constitutionally protected opinions. Because Amaro’s other claims relied on the defamation allegations, those claims must also be dismissed, the DeMichaels maintained.

The trial court found that a reasonable reader of the reviews wouldn’t believe the statements were factual, and would instead consider them to be opinions. The statements were protected opinion under the First Amendment, the court stated. It also dismissed the other claims.

The law firm appealed to the Fifth District.

Appeals Court Evaluates Whether Reviews Were Factual or Opinion Statements

The Fifth District opinion, written by Judge W. Scott Gwin, grouped the 99 reviews into categories. To decide whether possibly defamatory language is a statement of fact or opinion, the court explained it must review the circumstances, including four factors: the specific language used; whether the statement is verifiable; the statement’s general context; and the broader context in which the statement appeared.

Of the 99 reviews, 57 contained statements such as “no follow-up,” “never called me back,” and “no communication.” Some of these reviews also contained language such as “case,” “experience,” and “outcome,” specifically referencing the reviewer’s case. Five other reviews used subjective language like “poor communication,” but also made specific references indicating the reviewer was a client or potential client. They included comments like “dealing with personal injury case,” “called about an accident,” and “no idea what is going on with case.”

The Fifth District noted that these 62 reviews – categorized as “no communication reviews” or “client language reviews” – leave readers of the business listing with the impression the reviewer was a client and the law firm wasn’t responsive. It can be verified whether the reviewer had a case with the law firm and whether the firm returned phone calls, updated a client, or completed work, the opinion explained.

“When a review contains specific statements capable of being proved true or false in explanation for a negative online review or rating, these statements can be grounds for a defamation claim,” the opinion stated.

The court described the general context as 99 reviews posted in an online forum, submitted in a fairly short timeframe and presented as being from separate individuals. Readers would believe that the reviewers had actual experiences with the law firm, the court noted. In the broader context, the reviews were on a Google My Business page. The Google terms of service state contributions “must be based on real experiences and information.” Also, “content should reflect [the user’s] genuine experience at the location and should not be posted to manipulate a place’s ratings.” The policy adds, “Don’t post fake content, don’t post the same content multiple times, and don’t post content for the same place from multiple accounts.”

The four factors for analyzing the case indicate that 62 reviews weren’t protected opinions and may be defamatory, the Fifth District ruled. It determined the other 37 reviews were opinions.

The case returns to the trial court because it incorrectly found that all 99 reviews were opinions. The Fifth District noted that the 37 opinion reviews also will be relevant for the trial court to consider as possible evidence of the large volume of reviews connected to the DeMichaels, the systematic way the reviews were constructed, and a pattern of conduct.

Judges Craig Baldwin and William Hoffman joined Judge Gwin’s opinion.

Amaro v. DeMichael, 2024-Ohio-3290.

(Mike Frisch)

Conviction Of Former Capitol Hill Officer Affirmed

The United States Court of Appeals for the District of Columbia Circuit affirmed the obstruction of an official proceeding conviction of an on-duty Capitol Hill police officer

Michael Riley, an experienced former Capitol Police officer, appeals his conviction for obstruction of a federal grand jury investigation of the January 6, 2021, attack on the United States Capitol. The day after the attack, Riley tipped off one of the rioters that “everyone who was in the [Capitol] building is going to be charged” and urged him to “take down” a Facebook post acknowledging that he had been inside the building. When Riley learned his communication with that individual might be investigated, he tried to cover it up by deleting direct messages from his Facebook account and calls from his phone’s call log. A jury convicted Riley of one count of obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(1) based on the deletions but was unable to reach a verdict on another obstruction count based on the underlying tip. The court sentenced him to a period of probation and a fine.

Riley appeals his conviction. His central claim is that the government failed to establish that an official grand jury proceeding was foreseeable or that he deleted his Facebook direct messages to affect any such proceeding. He asserts various other trial errors that he links to those asserted shortcomings. We have considered each of Riley’s challenges and, because none succeeds, we affirm.

Circuit Judge Pillard authored the opinion, joined by Circuit Judges Childs and Garcia. (Mike Frisch)

Wynn Some, Lose Some

The Nevada Supreme Court upheld the dismissal of a defamation claim under the Anti-SLAPP statute

This appeal arises out of a defamation claim brought by appellant Steve Wynn—a prominent figure in Nevada gaming and politics—against respondents the Associated Press and one of its reporters, Regina Garcia Cano (collectively, AP Respondents).  Following national reports alleging years of misconduct by Wynn, Garcia Cano obtained from the Las Vegas Metropolitan Police Department (LVMPD) redacted copies of two separate citizens' complaints alleging sexual assault by Wynn in the 1970s. She wrote an article describing the allegations in the complaints, one of which alleged that Steve Wynn had raped the complainant three times at her Chicago apartment between 1973 and 1974, resulting in a pregnancy and the birth of a child in a gas station bathroom under unusual circumstances (the Chicago complaint).  The Associated Press published the article.

Public interest

Here, the article and its surrounding context point to an issue of clear public interest. The article discusses two new allegations of sexual misconduct by Wynn on the heels of national reports alleging a pattern of misconduct spanning decades. In the weeks preceding publication of this article, Wynn resigned as CEO of Wynn Resorts and as Finance Chair of the Republican National Committee due to the national reports of alleged misconduct; and contemporaneously, Wynn Casinos, the Nevada Gaming Control Board, and other regulators launched investigations into his conduct. The allegations undoubtedly affected his public business and political affairs, and additional reports of sexual misconduct would be of concern to a substantial number of people, including consumers, voters, and the business and governmental entities investigating precisely this kind of behavior. The public had an interest in understanding the history of misconduct alleged to have been committed by one of the most recognized figures in Nevada, and the article directly relates to that interest.

Success on the merits

We therefore hold that to demonstrate by prima facie evidence a probability of success on the merits of a public figure defamation claim, the plaintiffs evidence must be sufficient for a jury, by clear and convincing evidence, to reasonably infer that the publication was made with actual malice. In other words, while the plaintiff at this prong must prove only that their claim has minimal merit, a public figure defamation claim does not have minimal merit, as a matter of law, if the plaintiff s evidence of actual malice would not be sufficient—even if credited—to sustain a favorable verdict under the clear and convincing standard.

Conclusion

Nevada's anti-SLAPP statutes were designed to limit precisely the type of claim at issue here, which involves a news organization publishing an article in a good faith effort to inform their readers regarding an issue of clear public interest. AP Respondents met their burden under the first prong to establish, by a preponderance of the evidence, that their article was a good faith communication in furtherance of the right to free speech in direct connection with an issue of public concern. Wynn, on the other hand, did not establish with prima facie evidence a probability of prevailing on the merits of his defamation claim because he failed to meet the clear and convincing evidence standard under the second prong that is applicable to his public figure defamation claim. We therefore affirm the district court's order granting the renewed special motion to dismiss the complaint.

The case is STEVE WYNN, AN INDIVIDUAL, Appellant, vs. THE ASSOCIATED PRESS, A FOREIGN CORPORATION; AND
REGINA GARCIA CANO, AN INDIVIDUAL, Respondents. (Mike Frisch)

Naming Names

The United States District Court for the District of Columbia (District Judge Cooper) granted summary judgment to the Department of Justice in a FOIA request of Judicial Watch

In this Freedom of Information Act (“FOIA”) case, Judicial Watch seeks from the United States Department of Justice (“DOJ”) employee rosters for the office of Special Counsel Jack Smith. DOJ identified two such rosters and withheld them in full under FOIA Exemptions 6, 7(A), and 7(C).

Law

Judicial Watch does not dispute that the Special Counsel’s investigations can fairly be characterized as enforcement proceedings. Instead, it argues that the withheld records do not relate to the investigation because they are mundane lists of employees that all employers maintain regardless of whether they are investigating potential criminal conduct. Judicial Watch Opp’n Summ. J. & Cross-Mot. Summ. J. (“Judicial Watch Opp’n”) at 3–6. Judicial Watch may be correct that employee rosters are common, and that most employee rosters are not related to ongoing enforcement proceedings. But the fact remains that these employee rosters describe everyone working on active criminal investigations and were created to facilitate those investigations. They therefore relate to enforcement proceedings. Another court in this district reached the same conclusion in Citizens for Responsibility and Ethics in Washington v. DOJ (“CREW”), No. 20-cv-212 (EGS), 2022 WL 4598537 (D.D.C. Sept. 30, 2022), holding that a spreadsheet tab listing the names and salaries of investigators in a different Special Counsel’s office was compiled for law-enforcement purposes because DOJ “needs to track the identities of its members . . . to maintain an organized investigation.” Id. at *2, *4.

Threats

First, it appears logical and plausible that disclosing the rosters would expose SCO employees to threats and harassment. The Special Counsel is investigating the former President of the United States and events surrounding one of the most fraught elections in recent American history. The SCO has attracted “unprecedented public scrutiny and partisan political attacks[.]” First Brinkmann Decl. ¶ 22. “Since the SCO began its work, harassing, vulgar, and/or threatening communications have been received by SCO staff, even including harassing physical mail sent to one SCO staff member’s private residence[.]” Id. SCO employees have also been targeted by “swatting” attacks at their homes, including both the Special Counsel himself and at least one other member of the office. Second Declaration of Vanessa Brinkmann (“Second Brinkmann Decl.”) ¶ 6. An attorney in the SCO was also doxed, meaning that the attorney’s home address was publicly revealed without the attorney’s consent. See id. These threats and harassment are unlikely to end while the Special Counsel’s investigations continue, as harassment of SCO employees “has, if anything, only increased with time and with developments in the SCO’s activities.” Id. ¶ 7.

These threats make it harder for the SCO to do its work by distracting employees and disrupting their work.

The court rejected the various legal contentions of Judicial Watch in support of disclosure.  (Mike Frisch)

Discovery Rule And Use Of Photos By Adult Nightclub

In response to a certified question concerning the application of the discovery rule for statute of limitations purposes, the Massachusetts Supreme Judicial Court provided guidance to the District Court.

The suit

The plaintiffs in this case, a group of professional models, allege that the defendant improperly used their images in social media posts to promote its adult entertainment nightclub between August 2013 and November 2015. They filed suit in the United States District Court for the District of Massachusetts (District Court) alleging defamation and other related tort claims, but not until 2021 -- well outside the three-year limitations period specified by G. L. c. 260, § 2A. To avoid dismissal at summary judgment, the plaintiffs argued for application of the "discovery rule," which would prevent the running of the limitations period until the plaintiffs knew or reasonably should have known that they had been harmed by the alleged tortfeasor.

Answer

All of this brings us back to the certified question: under what circumstances does the discovery rule apply to statutes of limitations for claims premised on social media posts? We conclude that the proper application of the discovery rule in the social media context requires a fact-intensive, totality of the circumstances analysis to determine what the plaintiff knew or should have known about the social media publication. This determination must often be left to the trier of fact. As explained infra, however, courts may decide that the defamatory postings are so widely distributed and readily accessible and searchable that the discovery rule does not apply as a matter of law...

In sum, in order to determine whether the plaintiffs knew or should have known of the defamatory postings of their images on social media, and thus the applicability of the discovery rule, it is necessary to consider the totality of the circumstances regarding such postings, including the extent of their public distribution, and the accessibility and searchability of the social media platform upon which they appeared. Whether the ultimate question can be resolved as a matter of law or must be decided by a jury we leave to the District Court, with the benefit of the full record before it.

Conclusion

Our answer to the certified question is as follows. Claims for defamation, violation of the right to privacy, violation of the right of publicity, and related claims that arise from material posted to social media platforms accrue when a plaintiff knows, or reasonably should know, that he or she has been harmed by the defendant's publication of that material. Given how vast the social media universe is on the Internet, and how access to, and the ability to search for, social media posts may vary from platform to platform and even from post to post, that determination requires consideration of the totality of the circumstances regarding the social media posting, including the extent of its distribution, and the accessibility and searchability of the posting. The application of the discovery rule is therefore a highly fact-specific inquiry, and the determination of whether plaintiffs knew or should have known that they were harmed by a defendant's post on social media must often be left to the finder of fact. If, however, the material posted to social media is widely distributed, and readily accessible and searchable, a judge may determine as a matter of law that the discovery rule cannot be applied.

(Mike Frisch)

The Common Law Of Burial Grounds

In a lengthy opinion that explores the common law of burial grounds, a majority of the Maryland Supreme Court held that mandamus relief was not available in a legal dispute over a Bethesda plot of land that served as an historic Black burial place

This case concerns a desecrated burial ground in Montgomery County, Maryland. The ground, sometimes known as Moses Cemetery, was a historic Black burial place that contains interments of many individuals, including formerly enslaved persons and their families. After burials ceased in the mid-20th century, the land was sold and eventually developed into an apartment complex and parking lot in the late 1960s. The record suggests that, rather than respectfully disinterring and moving the remains of the deceased, the developers disturbed the ground, removed human remains haphazardly and inconsistently, destroyed grave markers, and ultimately paved a portion of the land into a parking lot. It appears likely that human remains are still interred in the land today, which is currently part of a property known as the Westwood Tower Apartments (“Westwood”).

Since the land was developed, it has changed hands multiple times. Today, it is owned by the Respondent, the Housing Opportunities Commission of Montgomery County (“HOC”). The Petitioners are three descendants of individuals who were buried in Mose  Cemetery; Reverend Olusegun Adebayo, the pastor of Macedonia Baptist Church, which is located near the burial ground; and the Bethesda African Cemetery Coalition (“BACC”), a nonprofit entity that seeks to preserve the history of Black people in the area (together, the “Coalition”).

When HOC sought to sell the land to a property developer, the Coalition filed suit in the Circuit Court for Montgomery County, seeking relief to protect the remains of the deceased and ensure that their memory was respected.

Plaintiff's contention

According to the Coalition, a judgment issued by a court under [Maryland Code Business Regulation] § 5-505 is required whenever a burial ground is sold to be used for a purpose other than burial. Thus, the Coalition asserts that HOC must file an action under BR § 5-505 and obtain a judgment before it can sell the property containing Moses Cemetery.

Majority holding

The Coalition is not entitled to extraordinary relief in the form of mandamus to compel HOC to file a BR § 5-505 action. Courts in Maryland and in other states have developed a common law of burial places that provides the appropriate framework for resolving disputes concerning burial grounds, and so extraordinary relief is not available. Indeed, in comparison to this body of common law, BR § 5-505 is a relatively narrow statute, designed to provide an optional mechanism to make it easier to sell and repurpose certain burial grounds. HOC has no duty to file a BR § 5-505 action, and so extraordinary relief is inappropriate on that basis as well.

This case shall be remanded to the circuit court, at which time the Coalition shall be permitted to seek leave to amend its complaint.

Justice Booth (who I must has deeply impressed me with her thoughtful and well-reasoned opinions here and in the Adnan Syed case also decided today) concurred and dissented

Additionally, I agree with both the Majority and the Appellate Court that the Coalition may have remedies available under other recognized causes of action or claims. Respectfully, given that this case is moot, I am uncomfortable discussing remedies that may or may not be available in the absence of an actual case or controversy that has been decided by the circuit court and briefed on appeal. Remedies are a means of carrying out a substantive right, and they arise pursuant to a particular cause of action or claim. See Dan B. Dobbs & Caprice L. Roberts, Law of Remedies: Damages, Equity, Restitution § 1.1 (3d. ed. 2018) (“The law of judicial remedies determines the nature and scope of relief to be given to a plaintiff who has established a substantive right in court.”)

Accordingly, to the extent that the Majority opinion ventures farther than I am comfortable, I respectfully dissent. As the Majority correctly observes, the General Assembly has enacted a host of Maryland statutes that apply to ensure that human remains are undisturbed and to permit their disturbance where authorized by those statutes. Where the remains are interred in a cemetery, the General Assembly has enacted detailed regulations and protections that apply to the right of interment. See Title 5 of the Business Regulation Article of the Maryland Code. Criminal laws prevent the disinterment of human remains and the desecration of funerary objects, see Md. Code Ann. Criminal Law Article (“CR”) §§ 10-402, 10-403, 10-404. Where disinterment and reinterment are authorized, other statutes describe in detail the manner in which these acts must occur. See, e.g., CR §§ 10-402; Md. Code Ann. Real Property Article (“RP”) § 12-112.

And where human remains have been interred in a burial site on private property, in the absence of an easement or restrictive covenant, the General Assembly has codified processes for the property owner to grant access to the burial site, as well as provisions for maintenance and upkeep. See RP §§ 14-121, 14-121.1, and 14-122. Given that these provisions all require the property owner’s agreement, they do not implicate the Fifth Amendment of the United States Constitution.

I agree with the Majority that there may be equitable remedies available to an individual with standing who seeks to disinter remains that are located in a burial site on private property in order to reinter them elsewhere where the statutory provisions do not provide complete relief. I look forward to considering these and other important legal issues when they are briefed and presented to us in another case.

Justice Hotten, joined by Justice Watts, dissented

Respectfully, I dissent. I would reverse the judgment of the Appellate Court of Maryland and remand the case to that Court with instruction to affirm the judgment of the Circuit Court for Montgomery County, which concluded that the provisions of Md. Code Ann., Bus. Reg. (1992, 2015 Repl. Vol.) (“BR”) § 5-505 are mandatory and that the Housing Opportunities Commission of Montgomery County (“the Commission”), Respondent, must comply with the statute for Moses Cemetery to be sold for a purpose other than use as a burial ground. I disagree with the Majority’s conclusion that a writ of mandamus is unavailable because of the possibility of relief under the “common law of burial places” and because the provisions of BR § 5-505 are optional. Maj. Slip Op. at 39-40, 57.

The majority opinion is like a Trojan horse; it seems more benign than it actually is. The majority opinion creates an appearance of reasonableness but reaches a harsh result. The Majority starts creating the appearance of reasonableness by discussing “the common law of burial places” and stating that it disagrees with the Appellate Court that BR § 5-505 is simply a quiet title statute. See Maj. Slip Op. at 3, 4, 37-38. The Majority indicates that, unlike the Appellate Court and the Commission, it determines that BR § 5-505 is not just a quiet title statute, but that it is also a statute that facilitates sales of burial grounds by removing certain restrictions in the chain of title. See Maj. Slip Op. at 38. In reality, these are just two ways of saying the same thing, as the whole point of a quiet title action is to perfect title, eliminate adverse claims, and thus make property easier to sell.

Lack of clarity

One of the few things that the Majority makes clear is that the common law of burial places cannot prevent the sale of a burial ground. See Maj. Slip Op. at 43-44. Stopping the Commission from selling Moses Cemetery without court approval was the whole point of Petitioners’ filing this action in the first place. The Majority’s foreclosure of Petitioners’ ability to stop the sale of Moses Cemetery begs the questions of what kind of relief the Majority expects Petitioners to seek on remand based on the common law of burial places in the United States. Although the Majority advises that “[c]ourts have enjoined desecration of burial grounds” and that “interested parties need not wait for a burial ground to be the subject of a contract for sale to seek equitable relief in connection with an alleged desecration of the burial ground[,]” the Majority leaves unclear what relief would consist of on remand.

(Mike Frisch)

Vacatur Vacated In Syed Case

The Maryland Supreme Court has found that the rights of the Hae Min Lee's family were violated and remanded the vacatur of Adnan Syed's conviction

The Maryland Constitution requires that crime victims and their representatives be treated by agents of the State with dignity, respect, and sensitivity during all phases of the criminal justice process. It also grants victims and their representatives specific rights, including in some instances the rights to be notified of, to attend, and to be heard at criminal justice proceedings. The General Assembly has enacted a number of statutes that implement these constitutional requirements. In this case, we consider the scope of a crime victim’s rights at a hearing on a motion to vacate a conviction.

In September 2022, the State’s Attorney for Baltimore City moved to vacate Adnan Syed’s 2000 conviction for the murder of Hae Min Lee under a recently enacted statute that allows a court to vacate a conviction if certain conditions are met. See Md. Code, Crim. Proc. (“CP”) § 8-301.1 (2018 Repl. Vol., 2023 Supp.). The prosecutor gave the crime victim’s representative, Young Lee (Ms. Lee’s brother), less than one business day’s notice of an in-person hearing on the motion to vacate. As the prosecutor and the presiding judge were aware, Mr. Lee lives in California. The court denied Mr. Lee’s request for a one-week postponement of the hearing, which would have allowed Mr. Lee to attend the hearing in person in Baltimore.

The requested postponement having been denied, Mr. Lee observed the hearing remotely. Mr. Syed appeared in person. The court allowed Mr. Lee to make a statement at the beginning of the hearing, prior to the presentations by the prosecutor and defense counsel. After Mr. Lee completed his remarks, the court denied Mr. Lee’s attorney’s request to be heard briefly.

At the conclusion of the hearing, the court granted the motion to vacate and ordered the State’s Attorney within 30 days either to schedule a new trial for Mr. Syed or to enter a nolle prosequi (“nol pros”) of the charges. Mr. Lee subsequently noted an appeal of the order vacating Mr. Syed’s convictions and moved for a stay of the circuit court proceedings.  Shortly before Mr. Syed’s response to Mr. Lee’s motion to stay was due to be filed, the State’s Attorney entered a nol pros of the charges against Mr. Syed.

A divided panel of the Appellate Court of Maryland vacated the circuit court’s order and remanded for a new hearing. The Majority first held that the entry of the nol pros did not moot Mr. Lee’s appeal. On the merits, the Majority concluded that Mr. Lee had a right to reasonable notice of the vacatur hearing as well as a right to attend the hearing in person, and that Mr. Lee had been denied both of these rights. However, the Appellate Court held that crime victims and their representatives do not have a right to be heard at a hearing on a motion to vacate a conviction. We subsequently granted Mr. Syed’s petition for writ of certiorari and Mr. Lee’s cross-petition.

As discussed below, we agree with the Appellate Court that the entry of the nol pros did not moot Mr. Lee’s appeal. We also agree that Mr. Lee had the right to attend the hearing on the motion to vacate in person, and that he did not receive sufficient notice of the hearing to reasonably permit him to do so. We further conclude that a crime victim (or victim’s representative) has the right to be heard at a hearing on a motion to vacate, including on the merits of the motion, through counsel (if counsel has been retained). Because Mr. Lee’s rights as the crime victim’s representative were violated and Mr. Lee has made a sufficient showing of prejudice, this case will be remanded to the Circuit Court for Baltimore City for further proceedings. On remand, the parties and Mr. Lee will begin where they were immediately after the State’s Attorney filed the motion to vacate.

The opinion is authored by Biran, J. Hotten, Booth, and Battaglia, JJ., dissent.

Justice Booth

Respectfully, I dissent. In my view, this appeal was rendered moot by the State’s entry of a nol pros following the grant of the State’s vacatur motion. I disagree with the Majority that the nol pros was a legal nullity. That said, because this case presents issues that are likely to recur and evade review, as well as matters of important concern, I would exercise discretion to consider the merits.

With respect to the merits, as I discuss more fully below, in my view, the Majority’s opinion in this case implicates separation of powers concerns. The Majority creates a victim’s constitutional “right to be heard” that was not argued or briefed by the parties and is inconsistent with the plain language of Article 47 of the Maryland Declaration of Rights. The Majority also re-writes the victims’ rights statutes to provide a right where the Legislature has declined to provide one. Respectfully, it is not our role to act as a superlegislature when we think our policies are better.

The dissent would find the right to attend and be heard were satisfied here.

Her concluding observations

I conclude with some general concerns about the Majority’s opinion in this case that are too important to leave unaddressed. In my view, the Majority’s analysis implicates serious separation of powers and fairness concerns that will have a ripple effect beyond this case.

This is the second case over the course of the last twelve months in which the Majority has decided to reach constitutional issues that were not argued or briefed before this Court. Respectfully, I do not agree with this approach. See Clark v. State, 485 Md. 674, 765 (2023) (Gould, J., dissenting, joined by Fader, C.J., and Booth, J.) (disagreeing with the Majority’s decision to “mak[e] new constitutional law without the input of the parties”). In this case, the parties’ arguments all focused upon whether Mr. Lee had a right to be heard pursuant to a statute or a rule. The only briefing presented by any party on a “constitutional right” was contained in a single paragraph in Mr. Lee’s reply brief,  asserting such a right with no discussion or analysis. Of course, given that it was summarily raised in a reply brief and with no actual analysis, neither Mr. Syed nor the State was “given an opportunity to address these important issues.” Clark, 485 Md. at 764 (Gould, J., dissenting). “[T]he Majority is making new constitutional law without the input of the parties.” Id.

To refute this point, the Majority points out that Article 47 is “central[] to questions concerning victims’ rights” and proceeds to cite to generalized references in the briefs to Article 47 as well as arguments in the amicus briefs asserting a general constitutional right. Maj. Slip Op. at 68. The Majority also points to questions raised by one member of the Court during oral arguments concerning Article 47. I will not attempt to engage in a “who said what” in the briefs. They speak for themselves.

The Majority also violates “the Court’s strong and established policy . . . to decide constitutional issues only when necessary.” VNA Hospice of Md. v. Dep’t of Health & Mental Hygiene, 406 Md. 584, 604 (2008) (cleaned up); see also Christopher v. Montgomery County Dept. of Health & Hum. Servs., 381 Md. 188, 217 (2004) (“[W]e adhere to the established principle that a court will not decide a constitutional issue when a case can properly be disposed of on a non-constitutional ground.” (cleaned up)). “This Court has emphasized[]” this policy “time after time[.]” VNA Hospice of Md., 406 Md. at 604; see also State v. Raithel, 285 Md. 478, 484 (1979) (“[N]othing is better settled than the principle that courts should not decide constitutional issues unnecessarily.” (emphasis added)).

Because the Majority concludes that Mr. Lee had a right to be heard at the vacatur hearing pursuant to CP § 11-403(b), there is absolutely no reason to address the constitutional right at all. Dorsey v. State, 356 Md. 324, 342 (1999) (“Since we shall hold that the petitioners had a statutory right to jury trials in the instant cases, we need not and shall not reach the issue of whether they were entitled to jury trials under Articles 5 and 21 of the Maryland Declaration of Rights.”).

The Majority’s decision to establish new constitutional rights is particularly troubling here because in doing so, the Majority is calling into question the constitutionality of several statutes enacted by the General Assembly that, by their express terms, do not include a victim’s right to speak. See CP § 8-301 (petitions for writ of actual innocence); CP § 8-110 (JUVRA); CP § 8-301.1 (vacatur). I would think that prior to embarking on such an undertaking that will invariably cause a sea-change in the manner in which post-sentencing hearings must now occur involving incarcerated individuals’ liberty interests, it would be prudent to hear the Attorney General’s position.

Putting aside the fairness implications, the Majority’s constitutional underpinning—that the plain language of Article 47 creates a broad substantive victim’s right to be heard and interprets Article 47(b) as placing conditions or limitations on the General Assembly’s authority to implement this right—is in direct contravention of the express language of Article 47, in which the voters conferred upon the General Assembly the authority to determine the circumstances in which a victim’s right to be heard would be established. These are policy decisions that are within the discretion of the General Assembly, not this Court.

What is more, in undertaking the constitutionally delegated functions of the Legislative Branch, the Majority is attempting to tie the General Assembly’s hands when it enacts future legislation. The Majority instructs the Legislature that it may not enact future legislation that does not comport with how the Majority believes a victim’s right to be heard should be implemented. See Maj. Slip Op. at 65 (“We conclude that the General Assembly may not create a new criminal justice proceeding without affording victims the rights to notice, attendance and to be heard at such new proceeding unless the General Assembly makes clear on the face of the legislation or in unambiguous legislative history that it finds it would not be practicable to provide one or more of those rights to victims with respect to the new criminal justice proceeding.”). The Majority’s veering into the legislative lane is significant and profound.

Finally, in crafting how it believes the victim’s right to be heard should be implemented, without any authority, the Majority creates a new victim’s right to be heard that transcends anything that the General Assembly has enacted to date. As discussed above, where the General Assembly has created such a right, it is a right to address the court. See CP § 11-403. It is not a right to participate in the process. The Majority describes in some length and detail how it envisions a victim should be permitted to address the court at a vacatur hearing, expounding (again, based upon policy and without any authority) that a victim’s right “includes the right to address the merits of the vacatur motion after the prosecutor and the defense have made their presentations in support of the motion.” Maj. Slip Op. at 71. The Majority instructs—again without any authority— that “if the victim believes the State has not met its burden of proof” under the vacatur statute, “the victim must have the right to explain why the victim believes that to be the case and to ask the court to deny the motion.” Id. The Majority adds that “in a case like this one where the prosecutor and defendant both seek a vacatur, the victim’s attorney can help the court.” Maj. Slip Op. at 72. The Majority’s new hearing requirements harken back to the days of yore before victim-initiated prosecutions were constitutionally abolished. See supra note 2. Respectfully, if the General Assembly wishes to confer that authority upon victims or their counsel, it may do so.

For the above reasons, I respectfully dissent.

The oral argument is linked here. (Mike Frisch)

Not Going Better

The dismissal of misleading advertising claims brought against Coca-Cola has been reversed by the District of Columbia Court of Appeals

Earth Island Institute appeals the dismissal of its suit against the Coca-Cola Company, brought under the D.C. Consumer ProtectionProcedures Act, D.C. Code §§ 28-3901 to 28-3913 (“CPPA”). Earth Island alleges that Coca-Cola engages in deceptive marketing that misleads consumers into thinking that its business is environmentally sustainable, or at least that it is currently making serious strides toward environmental sustainability. In fact, in Earth Island’s telling, the sheer scale on which Coca-Cola relies on single-use plastics in its packaging—and the scale on which it intends to continue using them—renders it an environmental blight and a fundamentally unsustainable business. At a more granular level, Coca-Cola touts its efforts to increase the recyclability of its products and to use more already-recycled material when making those products. Those statements, Earth Island argues, mask the reality that recycling is not a viable means of mitigating the environmental harm that Coca-Cola inflicts via its mass production of single-use plastics—less than ten percent of recyclable plastics are in fact recycled in the United States. Earth Island’s claims amount to what is sometimes called greenwashing: companies deceptively billing themselves as environmentally friendly, in an effort to generate profits, when they are in fact far from it.

Survives a motion to dismiss

We reverse. Earth Island has stated a facially plausible misrepresentation claim, and none of the trial court’s three bases for dismissal fatally undermines it. On the first point, even aspirational statements can be actionable under the CPPA because they can convey to reasonable consumers that a speaker is taking (or intends to take) steps that at least have the potential of fulfilling those aspirations. Earth Island alleges that Coca-Cola neither takes nor intends to take any such steps, and if that is correct, then its representations could mislead reasonable consumers. On the second point, Coca-Cola’s various claims about its plastic packaging are very much statements about its “goods and services,” a term that the CPPA defines broadly to include “any and all parts of the economic output of society, at any stage or related . . . in the economic process.” D.C. Code § 28-3901(7). And on the third  point, the CPPA does not require that misleading representations be contained in a single statement in order to be actionable; a series of statements can in combination be misleading even when, taken individually, they fall short of that. While we caution that a litigant cannot unfairly strip isolated statements out of their context and then cobble them together to form an unrepresentative tapestry of what has been conveyed, that caveat does not rescue the trial court’s dismissal here.

Earth Island has plausibly alleged that Coca-Cola’s statements, when viewed in their surrounding context, mislead consumers into believing that it is an environmental steward, when it is in fact an environmental scourge. Whether Earth Island can ultimately substantiate those claims is a different question for another day. For pleading purposes, Earth Island’s complaint survives a motion to dismiss.

Associate Judge Deahl authored the opinion. (Mike Frisch)

Cockfighting Ban Upheld

The United States Court of Appeals for the Ninth Circuit upheld a federal prohibition on cockfighting in the Northern Marianas

Evidence that Congress may have also sought to prevent the spread of avian flu by restricting, and ultimately prohibiting, cockfighting reinforces the conclusion that the prohibition serves significant federal interests.

Thus, Congress’s interests in regulating animal fighting to relieve its burden on interstate commerce, ensure the humane treatment of animals, and prevent the spread of avian flu are significant, not illusory, as Salas suggests. Because these federal interests outweigh any intrusion into the CNMI’s internal affairs, neither § 103 nor § 105 preclude § 2156 and its 2018 Amendment’s application to the CNMI.

The challenge to the regulation

In his complaint, Salas advanced three legal theories as to why the Covenant precluded the application of the [Animal Welfare Act]’s federal prohibition on cockfighting to the [Commonwealth of the Northern Marianas Island]. First, Salas argued that because § 2156 was not a law of general application in 1978, it did not apply to the CNMI under Covenant § 502. Second, Salas asserted that § 2156 did not apply to the CNMI under § 105 because it could not be made applicable to the several states. Finally, Salas contended that the 2018 Amendment intrudes into the internal affairs of the CNMI in violation of Covenant § 103, which preserves the CNMI’s right of local self-government.

Wonder what the Supremes might do with this one. (Mike Frisch)

The Right To Bear Switchblades

The Massachusetts Supreme Judicia Court has this bon mot today

Since 1957, G. L. c. 269, § 10 (b) (§ 10 [b]), has prohibited people from possessing certain spring-release pocketknives, commonly known as "switchblades." In this case, we are asked to decide whether § 10 (b)'s prohibition against carrying a switchblade knife violates the Second Amendment to the United States Constitution, considering the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) (Bruen).1 We conclude it does. Accordingly, we reverse the denial of the defendant's motion to dismiss.

Reasoning

While both Heller and Bruen involved handguns, Second Amendment protections subsume more than just firearms. See Caetano v. Massachusetts, 577 U.S. 411, 411-412 (2016) (per curiam) (stun guns constitute arms under Second Amendment). Indeed, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Heller, 554 U.S. at 582...

In short, folding pocketknives not only fit within contemporaneous dictionary definitions of arms -- which would encompass a broader category of knives that today includes switchblades --- but they also were commonly possessed by lawabiding citizens for lawful purposes around the time of the founding. Setting aside any question whether switchblades are in common use today for lawful purposes, we conclude switchblades are "arms" for Second Amendment purposes. Therefore, the carrying of switchblades is presumptively protected by the plain text of the Second Amendment.

History

the Commonwealth has not met its burden of demonstrating a historical tradition justifying the regulation of switchblade knives under § 10 (b).

(Mike Frisch)

You Do Know How to Whistle, Don't You Steve?

The United States Court of Appeals for the District of Columbia Circuit denied whistleblower compensation to an attorney who blew the whistle that led to substantial sanctions imposed on his client

Suspecting his client of committing a crime, an attorney blows the whistle, intending to subject his client to a possible investigation and enforcement action by the Securities and Exchange Commission (the “Commission”). Can such an attorney then collect a whistleblower award from the Commission on the grounds that the disclosure of his client’s information was reasonably necessary to serve his client’s interests? We agree with the Commission that the answer to that question is no.

Doe's role

The Commission’s preceding investigation was prompted, in part, by a whistleblower tip filed by Petitioner John Doe. As the Defendants’ securities fraud scheme was unfolding, Doe was employed as in-house counsel at a company (the “Company”). The Company was owned and controlled by Individual 1 and provided assistance in connection with the Defendants’ securities offering. Doe worked on legal and administrative matters that were necessitated by the securities offering.

During the course of his employment at the Company, Doe came across information that indicated that Individual 2 was misappropriating money invested in the securities offering. Individual 2 did not own, control, or play any formal role at the Company.

After Doe's blow

Although Doe’s whistleblower tip did not mention the Company or Individual 1, both were investigated by the Commission as a result of Doe’s tip and ultimately subject to enforcement actions. The Commission’s investigation and  enforcement actions resulted in judgments against Individual 1, Individual 2, the Company, and other corporate entities, along with sanctions collectively totaling tens of millions of dollars.

Compensation is authorized when the disclosure is permitted by state bar ethics rules

The Commission denied Doe’s application, reasoning that Doe’s disclosure of his client’s information was not permitted by any applicable state bar rule. We affirm the Commission’s sound determination that Doe’s disclosure of his client’s information was not reasonably necessary to serve his client’s interest because the record shows that, when he filed his tip, Doe suspected his client of wrongdoing and intended to subject his own client to an investigation by the Commission.

Doe asserted reliance on Florida bar rules

We hold that substantial evidence supports the Commission’s finding that Doe did not reasonably believe that disclosing the Company’s information to the Commission was “necessary” to “serve [his] client’s interest.” Id. The record demonstrates that at the time he filed the tip, Doe believed that the Company was implicated in the securities fraud scheme. In reporting on the suspected wrongdoing, then, Doe was reporting on his own client. Common sense therefore dictates that Doe could not have reasonably believed that he was acting in his client’s best interest. Indeed, Doe’s own statements illustrate as much. Doe noted in his application for reconsideration, for example, that while he did not yet have “smoking gun” proof of misconduct by his client at the time that he filed his whistleblower tip, he had “suspicions” that his client was implicated in the securities fraud scheme.

Conclusion

At bottom, having repeatedly stated to the Commission that he believed at the time he submitted his tip that his client was implicated in wrongdoing, Doe cannot now unring the bell. We hold that the Commission’s determination—based on Doe’s own statements—that Doe could not reasonably have believed that his disclosure was necessary to serve his client’s interests was supported by substantial evidence and was not arbitrary or capricious.

For these reasons, Doe’s petition for review is denied.

Circuit Judge Wilkens authored the opinion. (Mike Frisch)

Counsel Disqualified In Dominion Defamation Suit

The United States District Court for the District of Columbia (Magistrate Judge Moxila Upadhyaya) has disqualified defendant's counsel in a defamation action brought by Dominion  for alleged false statements concerning the 2020 election based on her violation of court orders

From June 2023 until March 2024, all counsel and Parties in the case (including Byrne) seemingly abided by the Amended Protective Order (“Protective Order”) governing discovery. ECF No. 46. Before even her first appearance in this case on March 12, 2024, however, Byrne’s new counsel, Stefanie Junttila [Lambert] (“Lambert”), began openly violating orders, including by disseminating protected discovery material. ECF Nos. 71; 75; 82; 102; 108; 113. Due to Lambert’s actions, thousands of documents (“Dominion’s Litigation Documents”) which all Parties, including Byrne himself, had agreed to keep confidential, have now been shared widely in the public domain. Lambert and Byrne continue to evade the Protective Order and this Court’s March 19, 2024 Order (“Status Quo Order”) that prohibits further dissemination until resolution of this Motion.

Remedy

The remedy Dominion seeks, Lambert’s disqualification from serving as Byrne’s counsel in this case, is extraordinary and rarely granted outside of cases involving conflicts of interest. Nevertheless, the record clearly shows that Lambert deliberately violated multiple court rules and orders and continues to do so despite having had ample warning of the consequences and assuring the Court she would comply. Lambert’s repeated misconduct raises the serious concern that she became involved in this litigation for the sheer purpose of gaining access to and publicly sharing Dominion’s protected discovery. Because Lambert’s “truly egregious misconduct” has already and will undoubtedly continue to “infect future proceedings,” this is the rare case in which disqualification is warranted.

Specifics

At the March Hearing, Lambert did not dispute that she: 1) signed an Undertaking verifying that she would comply with the Protective Order; 2) gained access to Dominion’s Litigation Documents; and 3) disseminated those documents in the manner Dominion alleged. ECF No. 78 at 18:1–15, 19:8–25:18. She also disclosed details about the scope of her alleged breach for the first time. Id. at 31:19–32:4. She reported that she not only gave Leaf documents, but that she also gave him a username and password to the entire repository of Dominion’s Litigation Documents. Id. Lambert did not represent that she asked Leaf to sign an Undertaking pursuant to the Protective Order.

After Leaf gained access to Dominion’s Litigation Documents, Leaf created an X (formerly Twitter) account and shared links so that the public could download the documents. ECF No. 82 at 6–7. Leaf’s posts sharing the documents remain publicly available.

A second hearing in May

On May 16, 2024, the Court held a hearing to entertain more fulsome argument on Dominion’s Motion, which had not been fully briefed at the time of the March Hearing. At the May Hearing, Dominion chronicled Lambert and Byrne’s actions and argued that Lambert’s actions violated the Protective and Status Quo Orders and her ethical obligations as Byrne’s counsel. ECF No. 102. This included a detailed presentation in which Dominion offered a timeline of Lambert and Byrne’s misconduct using social media posts, interviews and other statements. Id.10

Although Lambert disagreed about Dominion’s characterizations of these actions, she did not dispute either the underlying conduct or the authenticity of any of the documents Dominion cited in its presentation. ECF No. 103 at 33:10–35:24.

After that hearing

Despite assuring the Court that they understood and would comply with all of its orders, Lambert and Byrne continued to disregard them.

Impact

Because of Lambert and Byrne’s actions, Dominion’s Litigation Documents are now widely available to the public. As Dominion points out, the documents and related commentary have been viewed hundreds of thousands of times...

Lambert and Byrne’s actions have led to serious threats to Dominion and its employees. For example, a Dominion employee in Belgrade was “doxed” in a video posted to X which Byrne retweeted. ECF No. 82 at 16–17 (citing ECF No. 82-10). Another Dominion employee’s work address in Denver was posted online after being pulled from the leaked documents. Id. at 17.

The court found multiple violations of governing ethics rules and rejected counsel's justifications

Dominion has raised a plausible narrative that Lambert became involved in this litigation so that she could gain access to Dominion’s documents and use them for improper purposes. ECF No. 75 at 3, 21–22. After thoroughly reviewing Lambert’s conduct, responses, and representations to this Court, the Court does not disagree. It is undisputed that Lambert entered the case without giving notice for months, gained access to Dominion’s documents, shared the documents with Leaf and used them in her own criminal case while hiding these actions from even McGlinchey, all before she entered her formal appearance. Lambert has failed at every opportunity to show the Court that she will act in accordance with its rules and requirements.

Lambert’s conduct in the past few weeks continues to exacerbate this concern. At best, Lambert failed to inform the Court and Dominion that Case, another attorney, had access to Dominion’s Litigation Documents and, at some point, became involved in this litigation. ECF No. 113. This failure is severe, as the Court clearly and repeatedly prohibited Lambert from sharing Dominion’s Litigation Documents with anyone else, and at the very least required her to inform the Court if anyone else gained access to the documents. But even more troubling, Dominion has put forth another plausible narrative that Lambert and Case have orchestrated a series of new moves to disseminate Dominion’s Litigation Documents and other discovery publicly in contravention of this Court’s orders. ECF Nos. 108; 113. According to Dominion, Lambert has clearly enabled Case to access Dominion’s Litigation Documents and Case seeks to use the documents outside this litigation. ECF Nos. 113 at 3–7; 113-4 at 3. But even more concerningly, Lambert and Case now seek to publicly release Poulos’ deposition—which is not yet, as far as the Court is aware, publicly available. ECF Nos. 108 at 2–10; 113 at 3–7; 116 at 25. Dominion’s well-founded concern about Lambert’s continued involvement in this litigation was that she would find other ways to circumvent Court orders. It now appears that is exactly what she has done. Lambert has no response to this theory. ECF Nos. 111, 117.

Also

Lambert currently faces two sets of felony criminal charges in Michigan for allegedly attempting to interfere with voting equipment. On August 3, 2023, Lambert was indicted in Muskegon County, Michigan on four felony charges related to alleged tampering with voting systems following the 2020 U.S. election. ECF Nos. 75 at 14, 75-17, 75-18. Then, on May 8, 2024, Lambert and her client, Stephanie Scott, a clerk in Adams Township, Michigan, were indicted on felony charges related to allegedly “mishandling voter data without authorization in search of fraud.”

Mueller He Sued

The United States Court of Appeals for the District of Columbia Circuit held that a person discussed in the Mueller report has standing to bring an equitable claim for alleged errors

In 2017, Special Counsel Robert S. Mueller III began investigating allegations of Russian government interference in the previous year’s presidential election. To that end he empaneled a grand jury. One of the witnesses who testified before it was Giorgi Rtskhiladze.

When the Department of Justice released a redacted version of Mueller’s final report, it included information that allegedly injured Rtskhiladze. So he sued, seeking both equitable and monetary relief. He also filed a separate application to obtain a copy of the transcript of his grand jury testimony.

The district court decided that Rtskhiladze lacked standing to bring his equitable claims; that he failed to state a claim for damages; and that he was not entitled to obtain a copy of the transcript.

We hold that Rtskhiladze has standing to bring all his claims. So we remand for the district court to consider the merits of the equitable claims that it dismissed for lack of standing. However, we agree with the district court that Rtskhiladze has failed to state a claim for damages. We also agree with the decision to deny Rtskhiladze’s request to obtain a copy of the transcript of his grand jury testimony.

Errors alleged

First, it falsely called Rtskhiladze “Russian” when he is a Georgian-American. Id. Second, it inaccurately quoted the text that Rtskhiladze sent to Michael Cohen. Third, Rtskhiladze says the footnote was vaguely drafted and created false insinuations about his conduct.

Harm

DOJ does little to dispute that Rtskhiladze has alleged an injury caused by the Mueller Report. More saliently, DOJ says that the court cannot equitably redress any such injury. According to DOJ, the (accurate) Senate Report eliminated the ongoing effects of the (inaccurate) Mueller Report.

We disagree. A government report (like the Senate Report) does not extinguish the harm from an earlier government report (like the Mueller Report) “where reputational injury derives directly from an unexpired and unretracted government action.”

Damages

On appeal, Rtskhiladze has forfeited any argument that he plausibly alleged “intentional or willful” conduct by DOJ. Instead, he cites common-law defamation precedents. But this is not a defamation suit, and the Privacy Act’s explicit text requires Rtskhiladze to allege “intentional or willful” conduct. 5 U.S.C. § 552a(g)(4). So here, common law cases are not on point.

Because Rtskhiladze has not even attempted to meet the Privacy Act’s requirements, we affirm the district court’s dismissal of his damages claim.

Panel

SRINIVASAN, Chief Judge, WALKER and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALKER

(Mike Frisch)

Sex Assaults Not Medical Care

Alleged sexual assaults by a doctor are not medical care and are not properly brought as medical malpractice cases, according to a Utah Supreme Court decision reversing dismissal of claims by multiple plaintiffs

Ninety-four former patients of David Broadbent, an obstetrician and gynecologist (OB-GYN), have sued him, alleging that Broadbent sexually assaulted them under the guise of providing medical treatment. Their claims against Broadbent include sexual battery, sexual assault, and intentional infliction of emotional distress.

Broadbent and the other Defendants in this case moved to dismiss the Plaintiffs’ claims in the district court. They argued that the Plaintiffs had essentially alleged a medical malpractice action but had failed to comply with the prelitigation requirements of the Utah Health Care Malpractice Act (the Malpractice Act or Act). The district court agreed and dismissed the case...

The district court granted the motion to dismiss, concluding that the Plaintiffs had alleged injuries that arose from health care rendered by Broadbent—thus implicating the Malpractice Act—and that they had failed to comply with the Act’s prelitigation requirements.

Not health care

We hold that the Plaintiffs have not asserted claims within the bounds of the Malpractice Act because they do not allege injuries arising out of or related to health care provided by Broadbent. Indeed, the crux of the Complaint is that their injuries were caused by actions that were not medical treatment and had no medical purpose.

The Salt Lake Tribune reported on related criminal charges.

The same source noted that the allegations led to his removal from a "Best Of" list of doctors

Seeing her former gynecologist listed as one of the area’s top fertility doctors in Utah Valley Magazine has reopened old wounds for Stephanie Mateer.

In 2021, she spoke out in a podcast and accused OB-GYN David Broadbent of sexually abusing her during an exam more than a decade earlier. Since her public disclosure, more than 120 women have alleged similar misconduct in lawsuits and in reports to the Provo Police Department. They allege that Broadbent inappropriately touched their breasts, vaginas and rectums during exams — often without warning or explanation, and in ways that hurt them and made them feel violated.

So Utah Valley Magazine’s decision to include Broadbent in its “Best Of” issue was confusing and painful, Mateer said. The magazine had invited readers to vote for their favorites across a number of categories — from medical care to shopping spots — and published the selection of Broadbent as the third top provider in its “fertility” category.

Utah Valley Magazine’s social media pages have been flooded with comments in the last three days from Utahns who have questioned why the publication recognized someone who has been accused of sexual assault by so many women.

“Shame on you for allowing David Broadbent to be one of the winners,” one woman wrote. “This list has no merit as long as he is included,” another wrote. “Shows where your morals align.”

Further

In response, the magazine on Tuesday removed Broadbent’s name from the online list and apologized. It plans to issue an apology in its next print issue. Founding Editor Jeanette Bennett said in a statement to The Salt Lake Tribune that the magazine’s decision has led to a “difficult learning lesson.”

(Mike Frisch)