Two Less Exciting Points From The TJX Identity Theft Case

The First Circuit handed down an opinion in connection with the TJX identity theft debacle from a few years ago. The case is In re: TJX Retail Security Breach Litigation, No. 08-2828. Everyone probably remembers the facts, but here's a link to a contemporaneous news account. If you're looking for sexy talk about identity theft, though, you ought to move along.

Now: If you're an attorney and your practice rubs up against commercial litigation, you should skip to page 14 of the opinion. There you'll find a couple of important statements by the First Circuit concerning Chapter 93A, the unfair business practices statute. First, the Court makes it clear that 93A claims need not be based on "egregious" conduct. But the Court doesn't go very far in clarifying what types of unfair conduct do manage to clear the statutory hurdle. "[S]ystematic recklessness may suffice." Might it? Hmm.

Second, the Court discusses the requirement that the unfair act(s) in question must happen primarily and substantially in the Commonwealth. Here we get a bit more clarification, but only a bit. Apparently the requirement is satisfied if a defendant has an office in Massachusetts -- even if the bad acts didn't happen at that office. Communicating with someone via servers located in Massachusetts also seems to get you there. That's good to know, too. Is it entirely consistent with the statute's language? Again: hmm.

Working Mothers: Rejoice

The First Circuit emphatically supported working mothers today in Chadwick v. Wellpoint, Inc., No. 08-1685. The plaintiff was passed over for promotion and she sued her employer. The trial court dismissed her suit even though she alleged that when her boss explained why she hadn't gotten the promotion, she said "It's nothing you did or didn't do. It was just that you're going to school, you have the kids* and you just have a lot on your plate right now."

The First Circuit reversed, and Judge Stahl was quite clear as to why the Court ruled as it did. And he found the point important enough that he repeated it over and over:

• On pp. 9-10: "[T]he assumption that a woman will perform her job less well due to her presumed family obligations is a form of sex-stereotyping and that adverse job actions on that basis constitute sex discrimination."
• On p. 11: "[U]nlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities."
• On p. 11: "[A]n employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities."

It's honestly a little bit surprising that the defendants moved for summary judgment on this record. Though I suppose they can take some cosmic solace in the fact that there was at least one judge out there who thought they should win without a trial.

*The plaintiff has four of them, including triplets. After learning about the triplets, one of her superiors e-mailed her and said "Bless you." Here's what the First Circuit made of that (footnote 10): "The district court erred by concluding that the 'Bless you' comment was was conclusively a 'friendly exclamation.' This is a factual conclusion that a judge at summary judgment is not free to make."

No Mulligan For Staples

The First Circuit has denied rehearing in Noonan v. Staples, Inc., No. 07-2195. It did so last week, but the order itself appears to have been released to the masses today. The Court's earlier decision, which was surprisingly controversial (surprisingly because the First Circuit did little more than apply a really, really old statute's plain language), therefore stands.

Some Of My Best Friends Are Supreme Court Justices*

What of Rep. Barney Frank's assertion that U.S. Supreme Court Justice Antonin Scalia is a "homophobe"? This may have been impolitic.** It may have been rude.*** But let's look at the data.

Here's what Justice Scalia said in his dissent in Romer v. Evans:

"This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that 'animosity' toward homosexuality . . . is evil. I vigorously dissent."

And:

"Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before."

What was Amendment 2? It basically said that no city or town could pass legislation protecting gays and lesbians from discrimination.

Well, we've all said things we regret. But Justice Scalia doesn't regret a single morsel of what he said in Romer v. Evans. So a few years later, in Lawrence v. Texas, he said:

"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Are these the words of a homophobe? Justice Scalia has at least one prominent conservative defender. But as of right now, most of the conservative corners of the blogosphere are so outraged by Rep. Frank's comment that they haven't even weighed in on it.

UPDATE (8:45 a.m.): Not quite outrage, but some typical pseudo-agnostic snark from the Instapundit.

UPDATE (10:14 a.m.): This, from the Corner, approaches outrage, but not head-on.

*Not really. That might be cool, though.

**No way. Barney Frank said something impolitic?

***See ** above.

Way, Way Off Topic

The Ann Arbor News is dead. This will be bittersweet news for anyone who attended the University of Michigan. By the mid-1990s the News already seemed to be behind the curve, so one can only imagine how it's been dealing with things over the past five years or so. Brian at MGoblog, which/who is awesome and is what would have happened had David Foster Wallace said "Screw it. I'd rather blog about Michigan football than write 1,000-page epic novels", has more.

So here's the question: what's killing newspapers? Folks have offered the following explanations (and often amalgamated them):

1. Not charging for web content.
2. Explosion of web competition, which eliminates the ability to break news and is a brain drain (especially for sportswriters).
3. Craigslist and the annihilation of classified advertising.
4. The death and consolidation of the department store chains and the zillions of pages of ads they reliably bought.
5. Teh liberal bias.
6. The increasing vapidity of the American people.
7. Unions.
8. Arrogance.
9. Evil venture capitalist vultures who blew up newsrooms to try to make a profit.
10. The price of newsprint.
11. The evil recession.

What's pretty telling is that we're seeing one or two major newspapers close or implode or declare bankruptcy every week, newspapers that twenty years ago seemed darn near indestructible, and/but not a whole lot of people seem to care. And other than the excruciating employment implications for those directly affected, it's tough to construct a non-atavistic argument for why they should.

Form, Function & Aesop

Lynn still has a race-based school assignment policy. Some parents filed suit against Lynn several years back and the First Circuit, en banc, upheld the policy in 2005. The parents appealed to the Supreme Court. The Court denied certiorari. And that was that.

In 2007, however, the Supreme Court struck down raced-based public school assignments in Seattle and Louisville "that bore a distinct resemblance to" Lynn's policy in Parents Involved in Community Schools v. Seattle School Dist. No. 1. Justice Thomas explicitly called out the First Circuit in his concurring opinion. He said that its decision on the Lynn case was "inimical to the Constitution."

So the parents sought to reopen their case. The trial court denied their request. Today, in Comfort v. Lynn School Committee, No. 08-1735, the First Circuit affirmed the trial court. The Court's reasoning, in short, is that when the Supreme Court denied review of the Lynn case in 2005, it was over. The Court concludes with a footnote that chides the plaintiffs and says all they have to do is file a new suit challenging the assignment policy. "With that option open but unutilized," writes Judge Selya, "the plaintiffs claims of inequity ring hollow."

This is entirely correct from a technical perspective. But is it really fair? Is the First Circuit putting form over function? Would it be less fair if the "inimical" comment had come in the Supreme Court's majority opinion and not a concurrence by Justice Thomas? And might there be an implicit recognition here by the First Circuit that just because the Supreme Court struck down similar policies in Seattle and Louisville, that doesn't mean the Lynn approach is unconstitutional? Or is it just that our commitment to the common law -- as in The Common Law -- will inevitably on occasion cause us to furrow our collective brow?

Decisionism Sees Moxie And Confusion Everywhere

There is an absolute privilege protecting statements made in connection with pending good faith litigation. This applies to statements made before the plaintiff even files her lawsuit. It applies to slander claims, yes, but also other claims (like tortious interference) that are based on the supposedly slanderous statements.

This is the basis for the Appeals Court's decision today in Visnick v. Caulfield, No. 07-P-1648.

The defendant claimed that the plaintiff sexually harassed her during a job interview at the Cambridge Center Marriott. She sent Marriott a letter and then filed a discrimination charge with the EEOC in May 2005. The defendant (who was confusingly the claimant in the EEOC proceeding) settled with Marriott at some point thereafter, probably based at least in part on the fact that Marriott had terminated the plaintiff (who doesn't seem to have been a party to the EEOC charge) a couple of months earlier.

The plaintiff responded by filing a lawsuit against the defendant (the woman who complained that he had sexually harassed her; is this too confusing?). Which is how the whole absolute privilege issue enters the mix and how the plaintiff loses this case.

One slightly frustrating aspect of this opinion is that it doesn't explain its conclusion that the defendant was clearly acting in good faith when she filed her EEOC charge. That's a tough issue to decide on summary judgment, and the Appeals Court gives us no sense of how it arrived at its conclusion. If a reasonable juror could have concluded that she wasn't acting in good faith, that ought to change things. So: NEI.*

FINALLY: None of this is to say that it isn't objectively, er, problematic to file a slander lawsuit against someone who accuses you of sexual harassment and gets you fired. Because it is.

*Not Enough Information. Sort of the opposite of TMI.

Decisionism Plays Beautiful

If you spend a lot of time furrowing your brow about litigiousness, Welch v. Sudbury Youth Soccer Ass'n, Inc., SJC No. 10242, is not a case you should read any time soon. The only thing reading this case will accomplish is it will make you furrow your brow a little bit more. If on the other hand you don't shake your head a little bit after you read the first couple of graphs, you either are or should be a plaintiffs' side personal injury lawyer.

But the essence of it all is that kids play soccer. And they get hurt playing soccer. All kinds of crazy ways. If every one of these kids had parents who sued the league when their kid hurt himself, there would be no soccer leagues. That would be a bummer. Even to someone who doesn't entirely understand soccer.

California Marriage Case

Apparently it's marriage week here at Decisionism.

Dale Carpenter has a couple of very illuminating posts up at Professor Volokh's place on the effort to overturn California's Proposition 8. Here's more of a straight news story on today's oral argument. Andrew Sullivan rounds things up here.

Two unsurprising things we learn:

1. Ken Starr thinks that California's protection of free speech could be overturned by a majority vote. Now remember that Judge Starr had the fate of the most powerful man in the world in his mitts for the better part of a year. How awesome is that?*

2. Jerry Brown is a buffoon, a well-intentioned buffoon.

*And by "awesome", I mean "completely horrifying".

Credit Where Due. Maybe.

Justice Clarence Thomas has been the unwitting beneficiary of quite a bit of criticism in these virtual pages. So we must give him proper credit for his concurring opinion in Wyeth v. Levine, No. 06-1249. The basic issue was whether a plaintiff could bring a state law tort claim based on a faulty drug label where the FDA had approved the label in question. Six justices said yes. Three said no. And Justice Thomas did something not enough judges do. He supported a legal result that (probably) contradicts the public policy result that he would (probably) prefer and voted with the majority. So: GOOD JOB Justice Thomas.

If you want to be all cynical about it, ask yourself if Justice Thomas would have taken this principled stand if he'd been the fifth vote for the plaintiff here. Was Justice Kennedy's vote the platform that enabled Justice Thomas to leap out into the abyss? Just askin'.

G.L.A.D. v. D.O.M.A.

Okay. So today, a number of Massachusetts plaintiffs filed a lawsuit challenging the constitutionality of the Federal Defense of Marriage Act.* The case has been assigned to Judge Tauro. The complaint can be found here. G.L.A.D. has a spiffy website up here.

If you are generally sympathetic to gay rights and your first reaction was NOOOOOO!, you may not be alone.** The conventional wisdom is that we have a pretty conservative Supreme Court. But that gets punctured a bit when you look at gay rights cases. If you read the majority opinion in Lawrence v. Texas (especially the pretty majestic third-to-last paragraph), and remember that counsel for the plaintiffs in that case wept tears of joy while Justice Kennedy read it from the bench, you might start to think that these plaintiffs, well, they have a shot. Don't they?

First order of business: watching the Obama Administration agonize about how to respond.

*Signed into law by Bill Clinton on September 21, 1996. What was going on in 1996? That was an election year? REALLY?!

**If you are neutral on the issue or unsympathetic, your reaction probably involved some grumbling about activist judges and then you went on with your day. That's cool. This is America, after all.

One First Street Snow Globe

It's good that the Supreme Court posts opinion transcripts. Otherwise big nerds would have nothing else to post about on days that are a bit thin in the opinion department.

In any event, today the Court heard oral argument in District Attorney's Office for the Third District et al. v. Osborne, No. 08-6. The transcript is available here. You might have heard about the case. The shorthand issue is whether a person in prison should have a constitutional right to access DNA evidence after he/she has been convicted. The shorthand response is: "Yes. Duh." But this is not as simple a case as it seems. Consider the following wrinkles:

Wrinkle 1: The convicted guy, the respondent, has thus far not sworn under the pains and penalties of perjury that he is actually innocent and that a DNA test would exonerate him.

Wrinkle 2: The respondent had an opportunity to do a DNA test at trial and decided, on the advice of counsel, not to.

The transcript is fascinating in that it is the Court crystallized in miniature. Justices Ginsburg, Souter, and Stevens are generally sympathetic to the idea of a constitutional right to post-conviction DNA evidence. Justice Breyer spins out wacky hypotheticals and tries to find middle ground. Justices Roberts, Scalia, and Alito are generally unsympathetic to the idea of a new constitutional right.

Justice Thomas asks no questions.

And then there's Justice Kennedy. He's mostly quiet during the arguments of Alaska's Assistant Attorney General and the Solicitor General. Then, during the respondent's argument, he pounces. He sees the potential for criminal defendants to game the system, to "shoot the dice" and avoid DNA evidence at trial on the theory that they can always get it post-conviction.

When Alaska rebuts (pages 62-65), though, the entire landscape of the case changes. Justice Kennedy asks Alaska if it would provide the DNA evidence to the respondent if he submitted a sworn affidavit tomorrow. Alaska haws and hems. And this clearly upsets Justice Kennedy.

The question thus becomes: does it upset him enough to tilt the balance?

A Weird Couple Of Weeks For The First Circuit And The First Amendment

The First Circuit handed down another First Amendment decision today in Del Gallo v. Parent, No. 08-1511. There are a couple of disconcerting things about this opinion.

The first is that it looks a lot like the plaintiff's utterly bizarre campaign conduct had as big an effect on the panel's decision as the actual substantive law. The plaintiff was campaigning for the Governor's Council.* He was hectoring postal patrons and employees in the process. But what if the plaintiff had been a gentle-hearted, polite, intelligent elderly woman? The case might have come out differently.

Here's why: because the postal service regulation in question looks a lot like a content-based restriction on speech. The regulation bars campaign activities in sidewalk areas on postal service property. The First Circuit says on page 29 that "[t]he regulation, which bars election campaigning regardless of the identity of the candidate or the opinions he espouses is clearly viewpoint neutral." This points to a gaping hole (one of many) in current First Amendment jurisprudence: the strained construction of viewpoint neutrality. The reg prohibits campaign speech. It does not bar speech about music. It does not bar speech about birds. No. Just campaign politics. And yet the regulation is called viewpoint neutral. Which is right: unless your viewpoint is that you would rather talk about campaign politics than birds.

There were some other openings here for the First Circuit to hold for the plaintiff. It avoided them all. Which is kind of what the first point is about.

*Why? Because as George Mallory said, it is there. See here for more on this esteemed government body.

Coakley And The Supremes Deliver A Blow To Casino Gambling

Today the U.S. Supreme Court handed down its decision in Carcieri v. Salazar, No. 07-526. The issue was whether the U.S. Department of Interior could acquire land and hold it in trust for the Narragansett Indian Tribe even though the Narragansetts weren't federally recognized when Congress passed the Indian Reorganization Act in 1934. The case turns on a single word of the Act: "now". The nut of the issue is whether "now" means when the statute was enacted in 1934 or if it is ambiguous and can mean when the Department wants to acquire the land in question.

That's the legal issue. The practical issue is that casino gambling in Indian Country becomes a much tougher proposition under the former interpretation than the latter. The Supreme Court adopted the former interpretation, and the Mashpee Wampanoag are not happy about it.*

The Breyer concurrence (it starts on page 20) makes some sense. He notes that the guy from the Department of Interior who suggested the provision in question way back when "subsequently explained its meaning in terms that the Court now adopts." Of course, Justice Thomas, who wrote the majority opinion, does everything he can to discount the importance of this, er, pretty important fact. Why? Because he hates relying on legislative history that much.

An interesting side note here is that Attorney General Coakley signed on to an amicus brief in support of the Rhode Island position and against the Narragansett position. You can sort of see why she signed on to the brief. Acquisition by the Department of Interior effectively takes the land in question outside of her jurisdiction. But here's the rhetorical question: have we not done enough to screw over the Narragansetts (and the Wampanoags, the Seminoles, the Sioux, and on and on . . .) that we ought to let them build a casino? Or, like, a lot of casinos?

*Note to Matt Viser and the Boston Globe: there are nine Supreme Court justices. Three of them dissented, at least in part. So this was not a 6-1 decision. It was a 6-3 decision. Just because you didn't understand what two of the justices did doesn't mean you don't count their votes. Also: why no quote from Coakley? Finally: monitor your comments; some of them here are pretty offensive.

UPDATE (11:06 a.m.): Matt Viser corrects the vote count in his print piece. Still no quote from Coakley's office, though.

Everyone Needs To Calm The Heck Down

The world seems to have lost its collective marbles over the First Circuit's recent decision in Noonan v. Staples, Inc., No. 07-2159. The decision refers to Mass. Gen. Law ch. 231, Section 92 and reminds us that truth is not an absolute defense to libel in Massachusetts.

Okay.

What does the statute say? "The defendant in an action for writing or for publishing a libel may introduce in evidence the truth of the matter contained in the publication charged as libellous; and the truth shall be a justification unless actual malice is proved." It dates from 1855.

So if you say or write something about a private citizen in Massachusetts and what you say happens to be defamatory and you say it with actual malice, you can't use truth as a defense. Massachusetts is pretty unique in this respect.

Massachusetts is also pretty unique in its failure to recognize a cause of action for "false light". That is, in Massachusetts as opposed to elsewhere, you can't win a lawsuit against someone if they something true about you that casts you in a false light. Might that be related to Section 92? It just might.

What's interesting about the uproar is that the First Circuit's interpretation is nothing new. The statute is 150 years old, after all. It hasn't just been sitting there up until now: if you take a spin through cases that cite to Section 92, you'll notice that courts recognize the weird uniqueness of the law and then move on. If this were as big a deal as the commentators seem to think, you can bet that Judge Lipez (who was also on the panel and who knows what he's doing) would have dissented or at least concurred.

But the real thing to keep in mind here is that this situation is about as fixable as can be. We don't have to wait around for decades for the right case to come along, pray that the SJC or the U.S. Supreme Court agrees to review it, and then cross our fingers and toes and hope that they get it right.

No. All we have to do is change the statute. So if you're that upset about the Noonan decision, go work on that. This blog will support you 100%.

A Post Repeatedly Using The Word "Bizarre"

A pipeline rupture. A cautionary tale.

It's bizarre enough that the expert witness in Hammell v. Shooshanian Eng'g Assocs., Inc., Appeals Ct. No. 07-P-147, changed his opinion two weeks before trial. It is also bizarre, but not surprising, that this opinion change benefited the expert's client, one of the defendants. It is very bizarre that the expert witness waited until he was actually on the witness stand to disclose his new opinion to the parties and the jury. It is very, very bizarre that the judge allowed him to do so.

But there are two especially bizarre aspects of this case.

First, the University of Massachusetts, which was ultimately found liable by the jury, knew that the expert in question (and another expert to be offered by another defendant) was going to nail it with responsibility for the pipeline rupture. The responsibility was also allocated to two of the other defendants (including the expert's own client), but still. UMass should have hired an expert and didn't. Bad idea.

Second, the jury seems to have believed the expert who had that last minute realization that, oh, just so happened to exonerate his client. You can almost excuse this given UMass' strange decision against hiring an expert. Almost, but not quite.

Glenn Reynolds: Not Paying Taxes Is Just Like Waterboarding

Prof. Glenn Reynolds is actually a really smart guy. Just look at his bio. His problem is that he seems to derive irrational amounts of enjoyment from provoking people on the left side of the spectrum to call him an idiot. He is not an idiot. He just says idiotic things sometimes.

Like today. Setting up a false moral equivalence between Bush administration officials legalizing aggressive interrogation techniques and Obama administration officials failing to pay taxes may entertain some minuscule sector of the populace. It may be grade-A quality snark. Let's give him that. But it's doubtful that he actually believes it.

Eggplant *Is* Obscene, Though

Think about this for a second.

Let's say our congresspeople decide that the most offensive thing in the universe is eggplant. That eggplant -- raw, cooked, smoked, braised -- is obscene. So obscene that it's dangerous. So obscene that any person having eggplant images on his hard drive has committed a federal crime.

Now say a friend of yours who likes to spend time in the kitchen sends you an e-mail with a .jpg attachment. And that .jpg attachment depicts your pal's unfortunate attempt at eggplant parm. You click the attachment. You look at the eggplant. You are disgusted.

Today the First Circuit confirmed in United States v. Lewis, No. 07-1462, that the use of the internet to convey such an image would satisfy the statutory (and constitutionally-mandated) requirement that the crime affect interstate commerce. Because sending an e-mail over the intertubes constitutes engagement in interstate commerce.

Read that last sentence again. And think about whether there are five United States Supreme Court Justices who would agree with it.

Elections Do Matter

A couple of years ago, the Supreme Court held that the 180-day limitations period for pay discrimination claims ran from the date that the employee receives her paycheck. This was true whether or not the employee knew that she was being paid less than her male counterparts. The case was Ledbetter v. Goodyear Tire & Rubber Co. Orin Kerr thinks it was a close call.

Justice Ginsburg dissented at the time and didn't think it was such a close call. Toward the end of her dissent, she wrote: "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad purpose. Once again, the ball is in Congress' court. As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII."

That is exactly what happened today. Congress didn't just reverse the holding of the Ledbetter case, it kicked the case where it hurts. The law applies to all cases filed since the day before the Court decided Ledbetter. And in one of the whereas clauses, Congress states that the decision "ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended."

Random Question About Mr. DeLeo And Boston Latin

There are a couple of articles about Robert A. DeLeo in the Boston Globe today. Mr. DeLeo is the state representative who appears to be in the best position to snag the speakership in the wake of Sal DiMasi's departure.

This profile of him by Matt Viser is interesting. First there's this sentence: "He drives an olive-colored Ford Explorer and lives in a modest house on the North Shore, which he grew up in as a child." Not so clear, right? If the man grew up in the Explorer, well, that'd be a heck of a story.

But here's the point: further down, the article notes that Mr. DeLeo is "[a] graduate of Boston Latin". If he grew up in Winthrop, how can that be? Is the Boston residency requirement a recent development? Someone who knows more about the school's history might be able to help out with this.

In any event, best of luck to Mr. DeLeo. Based on the circumstances under which his predecessors departed, he'll probably want to lawyer up ASAP.