Amy G. Gore—Senior Attorney

            The Virginia General Assembly has extended a grant of immunity from liability for certain otherwise defamatory statements in an amendment to Va. Code § 8.01-223.2 (Westlaw 2018). Previously, the anti-SLAPP (strategic lawsuit against public participation) statute extended immunity to claims for tortious interference with contract and similar theories when brought over a statement made at a public hearing or similar proceeding. Such statements were subject to an immunity defense unless uttered with knowledge of falsity or reckless disregard of falsity. The amendment makes two significant changes.

            First, the type of claims to which the statutory immunity applies now include common law defamation claims and will protect any statements "regarding matters of public concern that would be protected under the First Amendment [and that] are communicated to a third party." Va. Code Ann. § 8.01-223.2 (A). Second, exempt from the grant of statutory immunity are statements made with the actual or constructive knowledge of their falsity, the standard currently applicable to determinations of privilege.

     The parents of a child sexually abused by a child they adopted brought an action against the state of Nebraska for negligent failure to warn or disclose, and failure to supervise.  A state employee incorrectly stated to the parents before the adoption that the adopted child had no sexual abuse history. After a bench trial, the trial court entered judgment for the State based on the defense of sovereign immunity. When the parents appealed, the Supreme Court of Nebraska affirmed the lower court ruling.  Jill B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017). 

    Like statutes in many other states, Nebraska's Tort Claims Act, Neb. Rev. Stat. §§ 81-8,209 et seq., includes a waiver of the state's sovereign immunity from tort liability, but it also retains such immunity for some broad categories of conduct. Statutes authorizing a lawsuit against the State are strictly construed, since they are in derogation of the State's sovereignty. Under the intentional torts exception, sovereign immunity is not waived for claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Neb. Rev. Stat. § 81-8,219(4).

Nicole D. Prysby, Senior Attorney, National Legal Research Group

            The price of Bitcoin has soared in recent months, from approximately $900 in January 2017 to a current price of over $15,000. But even before the 2017 increase, Bitcoin had periods where its value rose sharply. For example, in 2013, it went from about $15 to $800. Bitcoin’s short-term gains have made it a very attractive hook for would-be Ponzi scheme developers. In fall 2017, the Commodity Futures Trading Commission (“CFTC”) sued Gelfman Blueprint, Inc. (“GBI”), and GBI’s Chief Executive Officer (“CEO”) for operating a Bitcoin Ponzi scheme that allegedly defrauded investors out of more than $600,000.

            In early 2014, the company’s CEO opened a Bitcoin fund and sought customers. He claimed to have a high-frequency, algorithmic, trading strategy (using a bot named “Jigsaw”) and advertised the fund as having monthly returns of 7%-11% with zero downside risk because “trading results are maximized during price drops.” He was able to attract at least 80 customers, who contributed between a few hundred dollars and tens of thousands of dollars each.

Jason Holder, Senior Attorney, National Legal Research Group

            Amanda Geraci ("Geraci") attempted to record a Philadelphia police officer's actions as he arrested an antifracking protester. Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017). Despite the fact that she was not interfering with the officer, a second officer pinned Geraci against a pillar, preventing her from observing or recording the arrest. Id. Geraci faced neither arrest nor citation for her actions. Id.

            Richard Fields ("Fields") was walking down a public sidewalk when he noticed a number of police officers breaking up a house party across the street. Id. As Fields took a photograph of the scene, an officer ordered him to leave the scene. Id. When Fields refused, the officer arrested him, confiscated his phone, and searched it opening "several videos and other photos." Id.

            Geraci and Fields brought suit under 42 U.S.C. § 1983 alleging, inter alia, "that the officers illegally retaliated against them for exercising their First Amendment right to record public police activity."  Id.

Jason Holder, Senior Attorney, National Legal Research Group

     The Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400 et seq., is designed "to ensure that all children with disabilities have available to them a free appropriate public education ["FAPE"]." 20 U.S.C. § 1400(d)(1)(A).  In Fry v. Napoleon Community School, 137 S. Ct. 743 (2017), the Supreme Court examined an IDEA provision which "addresses the Act's relationship with other laws protecting those children." Id. at 748. While the provision does not limit rights under other federal laws, it provides that "if a suit brought under such a law 'seek[s] relief that is also available under' the IDEA, the plaintiff must first exhaust the IDEA's administrative procedures." Id. (citing 20 U.S.C. § 1415(l)).

            Under the IDEA, an individualized education program ("IEP") serves as the primary vehicle for providing a child with a FAPE. Id. at 749 (citing Honig v. Doe, 484 U.S. 305, 311 (1988)). If parents are unsatisfied with an IEP, they can file a complaint with the local or state educational agency (as provided by state law) or "may instead (or also) pursue a full-fledged mediation process." Fry, 137 S. Ct. at 749. Next, the parents may seek a due process hearing appealable to a state agency (if originally conducted at the local level). Id. Only after these steps are completed may a parent seek judicial review with a civil action in state or federal court. Id.

            In Fry, the petitioner’s condition meant that she required a service dog to help her live as independently as possible. Id. at 751. The dog, "Wonder," performs myriad tasks including "retrieving dropped items, helping her balance when she uses her walker, opening and closing doors, turning on and off lights, helping her take off her coat, [and] helping her transfer to and from the toilet." Id. Under the existing IEP, Wonder was not permitted to accompany petitioner to school with school officials believing that a human aide rendered Wonder superfluous. Id.

John Stone, Senior Attorney, National Legal Research Group

            Largely in response to mass shootings in places such as Newtown, Connecticut, Aurora, Colorado, Fort Hood, Texas, and Virginia Tech, in 2013, the General Assembly of Maryland enacted the Firearm Safety Act ("FSA"), which bans military-style rifles and shotguns (referred to as "assault weapons") and detachable large-capacity magazines. Affirming in relevant part a decision by the United States District Court for the District of Maryland, Kolbe v. O'Malley, 42 F. Supp. 3d 768 (D. Md. 2014), the Fourth Circuit Court of Appeals has upheld the FSA against a constitutional challenge based on the Second Amendment right to bear arms.  Kolbe v. Hogan, 849 F.3d 114, 2017 WL 679687 (4th Cir. Feb. 21, 2017).

            The appellate court concluded that the assault weapons and large-capacity magazines that were banned by Maryland's FSA were not protected by the Second Amendment; they were most useful in military service, in that they were designed to kill or disable the enemy on a battlefield, and they had a capability for lethality far beyond that of other firearms.

Anne Hemenway, Senior Attorney, National Legal Research Group

     On June 13, 2016, in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, 136 S. Ct. 1938 (2016), the United States Supreme Court was asked to decide whether the Commonwealth of Puerto Rico should remain a "state" for purposes of 11 U.S.C. § 903(a), the subsection of Chapter 9 of the United States Bankruptcy Code that states that "a State law prescribing a method of composition of indebtedness of such municipality may not bind any creditor that does not consent to such composition." This issue came to the Court on an injunction proceeding by bondholders suing the Puerto Rico government to enjoin the application of the Puerto Rico Corporation Debt Enforcement and Recovery Act (the "Puerto Rico Act"). Enacted by Puerto Rico in an effort to deal with its extraordinary financial crisis and, specifically, to create its own bankruptcy scheme to restructure the debt of its insolvent public utilities. The bondholder's issue was presented in federal court notwithstanding an amendment to the Code to exclude Puerto Rico from the definition of a "state." See 11 U.S.C. § 101(52).

     The federal Gun Control Act (18 U.S.C. § 922(g)) prevents gun ownership by individuals who HAVE BEEN involuntarily committed to a mental institution. There is a process for having rights restored; currently 31 states participate in a program which permits a state court, board, or commission to create a relief program. Clifford Charles Tyler lives in Michigan, which does not participate in the relief program. Tyler was committed in 1986 for several weeks for a depressive episode. In 2011, Tyler attempted to purchase a gun and was denied. He appealed to the FBI and was told that he had no recourse unless Michigan began participating in the relief program. In 2012, Tyler filed a lawsuit against county, state, and federal defendants, alleging that because Michigan has no relief program, federal law creates a permanent ban on his Second Amendment rights. He also alleged Equal Protection and Due Process violations. The district court dismissed his case for failure to state a claim, but the Sixth Circuit reversed and remanded to the district court, instructing it to analyze Tyler’s claims using an intermediate scrutiny standard to determine the constitutionality of the federal statute. Tyler v. Hillsdale Cty. Sheriff's Dep't, No. 13-1876, 2016 WL 4916936 (6th Cir. Sept. 15, 2016).

The Lawletter Vol 41, No 3

John Stone, Senior Attorney, National Legal Research Group

     A federal civil rights statute, 42 U.S.C. § 1983, is most closely associated with providing a remedy for individuals whose federal constitutional rights have been violated by persons acting under color of state law. However, although they comprise a relatively small subset of § 1983 cases, claims under § 1983 can, under certain circumstances, be based upon violations of federal rights derived from federal statutes, not from the U.S. Constitution.

     In a recent example of such a claim, a voter in Puerto Rico brought an action challenging a Puerto Rico statute that struck her and more than 300,000 other voters from a voter-registration roll because they did not vote in the prior general election. The U.S. District Court for the District of Puerto Rico issued injunctive and declaratory relief barring the Puerto Rico State Elections Commission ("SEC") from removing otherwise eligible voters from an active election registry unless the requirements of the federal Help America Vote Act ("HAVA") were met. Colón-Marrero v. Conty-Perez, No. CIV. 12-1749CCC, 2015 WL 3508142 (D.P.R. signed June 4, 2015). The President of the SEC appealed, and the First Circuit Court of Appeals affirmed the lower court. Colón-Marrero v. Velez, No. 15-1356, 2016 WL 386428 (1st Cir. Feb. 1, 2016).

The Lawletter Vol 41, No 3

Paul Ferrer, Senior Attorney, National Legal Research Group

      In order to keep cases from ping-ponging between state and federal court, the federal removal statutes prohibit appellate review of remand orders. See In re La Providencia Dev. Corp., 406 F.2d 251, 252 (1st Cir. 1969) ("The action must not ricochet back and forth depending upon the most recent determination of a federal court."). In particular, 28 U.S.C. § 1447(d) provides that, with the exception of certain cases involving federal officers or civil rights, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d) (emphasis added). Does the "or otherwise" language prevent review by a district court of its own remand order under Rule 60(b)(3)? That was the question addressed by the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, in Barlow v. Colgate Palmolive Co., 772 F.3d 1001 (4th Cir. 2014) (en banc).

     In Barlow, two individuals separately sued Colgate-Palmolive Company and other companies in Maryland state court, alleging that each of the defendants' products had exposed them to asbestos. Even though the plaintiffs joined in-state defendants, Colgate removed the two cases to federal court on the basis of diversity of citizenship. Colgate asserted that the in-state defendants had been fraudulently joined, pointing to discovery responses indicating that the plaintiffs did not intend to pursue a claim against any defendant other than Colgate. The plaintiffs then moved to remand the cases to state court. In their motions, the plaintiffs' counsel represented that there was some circumstantial evidence to suggest exposure to asbestos at the hands of the nondiverse defendants. Based on counsel's representations, the district court judges (Judges Nickerson and Quarles) remanded the cases to state court.