A New Jersey man’s false-arrest suit is part of a growing wave of litigation over facial recognition technology, and observers say more suits are coming.
Litigation over the Illinois facial recognition law saw an uptick after the Illinois Supreme Court ruled in January 2019 that plaintiffs don’t have to have experienced injuries or harm to bring suits under that law, said David Oberly, a lawyer at Blank Rome in Cincinnati who represents defendants in facial recognition suits.
Enactment of additional regulations on the state and local levels has taken a back seat during the pandemic, but “the groundwork is there for a lot of changes at the state and municipal levels and at the federal level,” said Oberly of Blank Rome. At the federal level, preemption of local laws and whether to include a private right of action are sticking points, said Oberly. But the arrival of the Biden administration is likely to improve the chances of a federal law on facial recognition passing, said Oberly. What’s more, technology companies want to see regulation come from the federal government, he said.
“Right now there’s a huge patchwork of laws with different requirements. If our client operates in Texas, Washington and Illinois, they have to create three different policies,” Oberly said.
In a case alleging violations of federal securities laws by Cigna Corporation and certain of its officers, the Second Circuit Court of Appeals affirmed the dismissal of the complaint on the basis that the statements made by the defendants were simple, generic assertions about its regulatory policies and procedures upon which no reasonable investor would reasonably rely, and were therefore not materially misleading. Singh v. Cigna Corp., No. 17-3484-cv, (2d Cir. Mar. 5, 2019). Following Cigna’s acquisition of HealthSpring, a regional Medicare insurer, Cigna issued several public statements, including 10-K filings, concerning its commitment to regulatory compliance given the significant regulatory responsibilities involved in Medicare coverage. In its 2013 Form 10-K filed on February 27, 2014, Cigna said it had “established policies and procedures to comply with applicable requirements,” and that it “expect[ed] to continue to allocate significant resources” to compliance efforts. Id. at *5. In December 2014, Cigna published a pamphlet titled “Code of Ethics and Principles of Conduct,” which affirmed the importance of compliance and integrity:
[I]t’s important for every employee. . .to handle, maintain, and report on [Cigna’s financial] information in compliance with all laws and regulations. . .
[W]e have a responsibility to act with integrity in all we do, including any and all dealings with government officials.
Id. at **4-5. In its 2014 Form 10-K, Cigna stated that it would “continue to allocate significant resources” to compliance. Id. at *6. The 10-K included a discussion of the difficulty of compliance in the regulatory environment given the “uncertainty surrounding legislation and implementation of national healthcare reform.” Id.
On May 16, 2018, the Appellate Division approved for publication a decision ruling that citizens from states outside New Jersey also have standing to obtain New Jersey’s public records under the Open Public Records Act (“OPRA”). The opinion—Scheeler v. Atlantic County Municipal Joint Insurance Fund, No. A-2092-15T2—was rendered in connection with three consolidated appeals in which the trial courts below came to conflicting conclusions about the scope of OPRA and who had standing to request documents pursuant to OPRA.
The pivotal language in dispute was the first sentence in the first paragraph of OPRA declaring it to be New Jersey’s public policy that “government records shall be readily accessible for inspection, copy, or examination by the citizens of this State.” N.J.S.A. § 47:1A-1. Despite this seemingly unambiguous language limiting OPRA’s rights to New Jersey citizens, the court disagreed. It rooted its rationale in other more specific sections of OPRA that had no such limiting language, the policy preference to construe the right to access broadly, OPRA’s history and purpose, and the fear of producing an absurd result.
In so holding, the court found that it owed no deference to a 2013 U.S. Supreme Court decision in McBurney v. Young, 569 U.S. 221 (2013) that referenced OPRA as one of several state open records statutes that limited access to citizens of its state. The court found that the U.S. Supreme Court’s reference was dicta and not binding.
Scheeler is an impactful ruling with wide-reaching implications that had amici arguments on both sides. While Scheeler does represent a significant victory for public access, helping entities such as out-of-state news organizations, local New Jersey municipalities appearing as amici feared that this ruling “would place an undue burden on their limited resources.” The Scheeler court recognized the municipalities’ concerns, but it declared that “[c]oncerns about OPRA’s practical ramifications should be directed to the Legislature.” Because of the significant public interest in the court’s holding on this legal issue, the New Jersey Supreme Court may grant certification if a petition is filed.
“A bad high school student would understand this.” That is what President Donald J. Trump had to say about the Ninth Circuit, which was charged in Feb. 2017 with determining whether a district court’s order blocking the president’s travel ban should be reversed. Coming less than a month into his presidency, it was just one of many critical comments made by President Trump about the nation’s federal Judiciary since he took office. As the tweeting public knows, the president has criticized federal judges for political bias, and has gone so far as to blame them for future terrorist attacks.
As much as these criticisms may seem unprecedented, friction between the judicial and executive branches of the federal government is not new.
In response to the Supreme Court’s landmark decision in McCulloch v. Maryland, President Thomas Jefferson wrote privately that the judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”
President Andrew Jackson is reported to have said, “John Marshall has made his decision, now let him enforce it,” regarding an opinion by the Supreme Court on Cherokee Indians. President Franklin Roosevelt is known for having attempted to “pack” the Supreme Court when the justices were not as amenable to his New Deal program as he would have liked.
Even President Barack Obama, a scholar of constitutional law, called out the Supreme Court over its Citizens United decision during his 2010 State of the Union Address.
Despite its disputes with presidents, the federal Judiciary has remained independent since its inception—and, in this author’s view, it will remain so. It is true, never before has a president so vigorously attacked the Judiciary, alleging political bias, or, in the case of Judge Gonzalo Curiel, the inability to be fair because of his “Mexican heritage.” But in the Age of Trump, these types of attacks may be the new normal. While the tone of these attacks on the Judiciary is unprecedented, the U.S. Constitution was designed to ensure that the federal Judiciary remains independent, so it can function, even when under hostile fire by the president or Congress.
“Judicial Independence in the Age of Trump,” by Stephen M. Orlofsky was originally published in the June 2018 issue of New Jersey Lawyer, a publication of the New Jersey State Bar Association. Reprinted with permission.
Five years ago, one bitcoin sold for less than $15. Two years ago, the unit price was about $500. Now, the price of a bitcoin has topped $15,000, and it’s climbing fast enough to garner front-page attention by major newspapers. Since its inception, bitcoin has invoked thoughts of a shadow network where users trade in an untraceable electronic currency for drugs, weapons and other illicit goods and services. That world is not a fantasy, and some bitcoin holders have gone so far as to use bitcoins to hire hitmen, see, e.g., United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017). Continue reading “Appreciating Bitcoin: A Holiday Guide to Legal Hot Topics in Virtual Currency”
Each November, Instagram, Facebook, and Twitter are full of celebrities and friends posting pictures of their ballots at their local polling places. In this age of social media, many users share “selfies” of themselves exercising their right to vote. Inevitably, other users post comments on these pictures alleging that sharing the picture can “invalidate” the vote or is otherwise illegal. Before heading to the ballots to elect a new governor on November 7, New Jersey residents should be aware of the current state of the law. Continue reading “Ballot “Selfies” in New Jersey: Can You Instagram Your Vote?”
Suppose there is a hit-and-run in a sparsely populated area. You are retained as counsel to represent the victim, who sustained significant property damage to her vehicle and debilitating personal injuries. After a preliminary investigation, you learn that there are no witnesses to the incident, but there is a nearby gas station equipped with video cameras that may have footage of the hit-and-run and from which you may be able to identify the other driver. The gas station refuses to share its video footage with you. At this point, you could file a “John Doe” complaint and then serve a subpoena on the gas station. But the fastest and cheapest way to obtain the video is by filing a petition for pre-suit discovery under New Jersey Rule 4:11-1. Continue reading “Pre-Complaint Discovery: An Underutilized, Underrated and Unknown Tool”
The offer-of-judgment rule and the high-low agreement are two mechanisms that exist to help litigants manage their risk in litigation. The offer-of-judgment rule, codified at Rule 4:58-1 to -6, allows a party to take a monetary judgment, or to allow a judgment to be taken against it, for a sum certain. If the offer of a claimant is not accepted and the claimant obtains a money judgment equal to or greater than 120 percent of the offer, the claimant is entitled to costs including all reasonable litigation expenses incurred following non-acceptance of the offer. See R. 4:58-2(a).
A high-low agreement is a settlement agreement that guarantees a minimum recovery for a plaintiff and limits a defendant’s exposure to an agreed upon maximum, regardless of the jury’s award. This maximum, or high-limit, is inclusive of costs and fees and it is a basic assumption of high-low agreements that the plaintiff cannot recover more than the “high-limit.”
Recently, the New Jersey Appellate Division addressed the intersection of these two risk management mechanisms. In Serico v. Rothberg, Plaintiff brought a medical malpractice action for failure to diagnose colon cancer. While the matter was awaiting a trial date, Plaintiff made an offer-of-judgment to accept $750,000 from the Defendant. Defendant did not respond to the offer. The matter went to trial and while the jury was deliberating, the parties entered a high-low agreement that provided a “low” of $300,000 for the Plaintiff and limited Defendant’s liability to a “high” of $1 million. During negotiations for the high-low agreement, Plaintiff’s possible entitlement to fees under the offer-of-judgment rule (R. 4:58-2(a)) was never discussed. It was not expressly waived by the Plaintiff, no demand for waiver was made by the Defendant, and the offer of judgment was not mentioned when terms of the high-low agreement were placed on the record.
The jury then returned a verdict in favor of the Plaintiff for $6 million, well over 120 percent of Plaintiff’s offer-of-judgment. Absent the high-low agreement, Plaintiff would have been entitled to costs and fees under the offer-of-judgment rule. However, Although the high-low agreement permitted a maximum award of $1 million. Despite this ceiling, Plaintiff’s counsel filed a motion for an award of attorney’s fees and costs, arguing that absent an express waiver, a high-low agreement does not waive a plaintiff’s right to seek sanctions under R. 4:58-2(a). Plaintiff claimed that the purpose of the Rule is “to impose financial consequences on a party [that] rejects a settlement offer” and the offer-of-judgment rule “accords judges no discretion regarding whether or not to award attorney’s fees.” The Court disagreed and the Appellate Division affirmed.
The Appellate Division explained that by entering into the high-low agreement, Plaintiff “could not recover any amount beyond the ‘high’ to which she agreed.” A high-low agreement is a contract and, like any contract, if the terms of the agreement are clear they must be enforced as written. The high-low agreement made no mention of Plaintiff’s offer of judgment and “Plaintiff did not come forward with any evidence that she preserved her rights [to attorney’s fees] under the Rule.” Although parties are always free to preserve any claim they might have, they must clearly state that intention at the time of the settlement. Unless expressly preserved, a claim for an additional amount beyond the “high-limit” is considered to be encompassed within the negotiated high-low agreement.
The recent decision of the New Jersey Appellate Division in Lopez-Montes v. Final Kote, LLC, Docket No. A-1592-14 (App. Div. Dec. 16, 2016) is instructive on the issue of how building codes and other regulations affect the liability of parties for construction site injuries. In Lopez-Montes, the plaintiff was a drywall subcontractor who was engaged to perform taping and spackling work on a construction project. The subcontractor responsible for installation of the sheetrock had previously supplied scaffolding at the job site, but no scaffolding was available when plaintiff was performing the taping and spackling work. Plaintiff stated that he objected to using a ladder due to safety concerns, but was told to use the ladder anyway. Continue reading “Appellate Division Holds OSHA Regulations Relevant in Negligence Case”