Tort Claims Research Articles

Putting Right Holders in the Centre: Bolagsupplysningen and Ilsjan (C-194/16): What Does It Mean for International Jurisdiction over Transborder Intellectual Property Infringement Disputes?

This paper analyses what the decision in Bolagsupplysningen and Ilsjan (C-194/16) means for international jurisdiction under EU Regulation No 1215/2012 with respect to transborder intellectual property infringement disputes. In this case, the Court of Justice of the European Union extended “the centre of interests” basis of jurisdiction under Art. 7(2) of EU Regulation No 1215/2012 to legal persons claiming infringements of personality rights on the internet. The Court also held that actions for rectification and removal of content infringing personality rights may not be brought before the courts of a Member State where the content is accessible. This article concludes that the centre of interests basis of jurisdiction is generally not applicable to right holders claiming infringements of intellectual property rights and/or complementary tort claims, except arguably for claims for the infringement of moral rights and unfair competition claims where the act exclusively affects the interests of a specific competitor. Many questions remain with respect to the localisation of a victim’s centre of interests. In addition, the article concludes that the judgment in Bolagsupplysningen does not affect a right holder’s ability to obtain an injunction in the Member State in which content accessible on the internet infringes a forum IP right to put an end to the infringement in that State. Still, the centre of interests basis of jurisdiction has the potential to give right holders an advantage for claims of online infringements of moral rights and acts of unfair competition that exclusively affect them and it can be expected that authors and traders will take advantage of this opportunity when considering their IP litigation strategies.

Developing Telemental Health Partnerships Between State Medical Schools and Federally Qualified Health Centers: Navigating the Regulatory Landscape and Policy Recommendations.

BackgroundFederally Qualified Health Centers (FQHCs) deliver care to 26 million Americans living in underserved areas, but few offer telemental health (TMH) services. The social missions of FQHCs and publicly funded state medical schools create a compelling argument for the development of TMH partnerships. In this paper, we share our experience and recommendations from launching TMH partnerships between 12 rural FQHCs and 3 state medical schools.ExperienceThere was consensus that medical school TMH providers should practice as part of the FQHC team to promote integration, enhance quality and safety, and ensure financial sustainability. For TMH providers to practice and bill as FQHC providers, the following issues must be addressed: (1) credentialing and privileging the TMH providers at the FQHC, (2) expanding FQHC Scope of Project to include telepsychiatry, (3) remote access to medical records, (4) insurance credentialing/paneling, billing, and supplemental payments, (5) contracting with the medical school, and (6) indemnity coverage for TMH.RecommendationsWe make recommendations to both state medical schools and FQHCs about how to overcome existing barriers to TMH partnerships. We also make recommendations about changes to policy that would mitigate the impact of these barriers. Specifically, we make recommendations to the Centers for Medicare and Medicaid about insurance credentialing, facility fees, eligibility of TMH encounters for supplemental payments, and Medicare eligibility rules for TMH billing by FQHCs. We also make recommendations to the Health Resources and Services Administration about restrictions on adding telepsychiatry to the FQHCs’ Scope of Project and the eligibility of TMH providers for indemnity coverage under the Federal Tort Claims Act.

The Starting Point of Short-Term Extinctive Prescription in Tort Claim

The Starting Point of Short-Term Extinctive Prescription in Tort Claim

The Merida Initiative and the Tort Claims Act: Human Rights Violations and Foreign Non-Contractual Civil Liability in the United States

This article discusses the possibility that Mexican victims of human rights violations may take advantage of the contents of the Alien Tort Claims Act to sue Mexican officials for extra-contractual civil liability in the event that they suffer damages derived from the use of firearms, technology, or otherwise, linked to the Merida Initiative. We analyze the Merida Initiative to Combat Illicit Narcotics and Reduce Organized Crime Authorization Act of 2008, and the Alien Tort Claims Act, also known as the Alien Tort Statute. We also refer to related Acts such as the Foreign Sovereign Immunities Act and the Torture Victim Protection Act, as well as to cases that help to understand the scope and limitations of the Alien Tort Claims Act. We conclude that the Merida Initiative and the resources allocated under it have deepened human rights violations in Mexico, and that the Alien Tort Claims Act could be invoked by Mexicans victims of such violations and of the “war” against drug trafficking under the framework of the Merida Initiative.

Acts of State, State Immunity, and Judicial Review in the United States

Abstract The doctrine of the Act of State and State Immunity has its foundation in common law frameworks. It is settled law that there is no cause of action that will make a foreign state liable in the domestic court of another country. In the United States there has been acceptance that certain cases involve “political questions” that are non-justiciable, as they are not a “case or controversy” as required by Article III of the U.S. Constitution. The courts have only intervened either where the federal statutes have applied extraterritorially, such as under the Civil Rights Act 1964 where a U.S. citizen is employed abroad by a company registered in the United States, or under the Alien Tort Claims Act (ATCA) 1789, which protects foreign parties who are designated sufficiently “alien” for the sole purpose of invoking jurisdiction after a civil wrong has been committed against them. There needs to be an evaluation of the U.S. Supreme Court precedents that have asserted judicial oversight in respect of wrongs committed extra-territorially, and their present rationale for retaining the doctrine. This paper also discusses the scope of the Federal State Immunity Act (FSIA) and the Justice Against Sponsors of Terrorism Act (JASTA) that narrow the concept of state immunity when dealing with terrorism by another state or its agents. A comparative analysis with the state immunity doctrine in Canada and the framework for litigation under the merits-based approach by the courts is provided. The common law courts have developed the doctrine of the Act of State and it has become a principle of customary international law. The argument of this paper is that there needs to be a greater focus on the civil injuries that are caused in other jurisdictions that should allow the claimants to litigate in the forum court and for judicial review to be available.

Budding Torts: Forecasting Emerging Tort Liabilty in the Cannabis Industry

The marijuana industry is booming. It is expanding into new states while it grows beyond the medical marijuana market into the recreational world. What was once illicit profit is quickly becoming on-the-books gains. As the industry matures, billions will be made, and companies once viewed suspiciously will become market giants. But this growth will not be without consequences. As marijuana use grows, and those who profit from it become established companies, the marijuana industry will become a target for tort claims that other industries have faced for decades. These claims, ranging from product liability claims to vehicular injury to consumer class actions, will expose actors in the industry to potentially ruinous damages. This is particularly true if the industry remains, as it is now, only partially prepared. Particularly dangerous will be third-party claims (claims filed by people who did not purchase marijuana themselves). In those claims, the illegal status of marijuana in federal law could make establishing liability against manufacturers, wholesalers, and sellers easier than it is for other products. This Article chronicles the most likely claims to emerge en masse in courts and puts forth potential, viable industry responses.

Assumed jurisdiction in Canada: identifying and interpreting presumptive connecting factors

The common law of assumed jurisdiction in Canada now consists of judges interpreting and applying the presumptive connecting factors established for tort claims in Club Resorts Ltd. v Van Breda and identifying and fleshing out the contours of presumptive connecting factors for claims other than tort. There is a pressing need for detailed analysis. While the presumptive connecting factor of a tort committed in the forum has been easy to apply in some cases, such as motor vehicle collisions, it has been much harder to apply in cases of defamation, misrepresentation, deceit and conspiracy. Beyond tort, presumptive connecting factors for certain causes of action such as breach of fiduciary duty, breach of confidence, or reversal of an unjust enrichment remain under-analysed. Little consensus exists on what aspects, if any, of these claims would constitute a sufficient connection for assumed jurisdiction. There are also important questions about how the presumptive connecting factor approach operates for several federal and provincial statutory causes of action, which differ in important ways from common law claims, and for assumed jurisdiction with respect to concurrent claims.

Cultural Genocide in Canada? It Did Happen Here.

This article explores the significance of the TRC’s assertion that the establishment and operation of residential schools were a central element of Canada’s Aboriginal policy that can be described as cultural genocide, against the backdrop of Canada’s historical position on cultural genocide and in view of residential schools litigation. It analyzes the deliberations over the United Nations Convention on the Prevention and Punishment of Genocide (The Genocide Convention) in various United Nations (UN) organs, Canada’s historical position, and the selective adoption of the Genocide Convention in Canadian law. My argument is threefold; first, I argue that the TRC assertion is indeed timely. Cultural genocide is not an inferior second-rate type of genocide, although it is not included in the Genocide Convention. Conceptually, cultural genocide is a full-blown genocide, even if it is not legally actionable. Second, Canada shielded itself legally above and beyond claims of genocide as it transplanted the Genocide Convention into Canadian law. Finally, while the cultural genocide phraseology may facilitate a wider scope of tort claims, the absence of appropriate legislation changes means Aboriginal people are likely to continue to view Canadian law as an oppressive settler-state mechanism.The first section of this article explores the notion of genocide as the destruction of cultures and the contextualization of the colonial experience within this notion. The second outlines briefly the drafters’ justification for the exclusion of cultural genocide in the Genocide Convention, the Canadian position with regard to cultural genocide, and the selective manner in which the Genocide Convention was incorporated in Canada’s criminal code. Section three analyzes residential schools litigation within Canada’s narrow, individual-based tort law. Finally, the significance and implications of the TRC conclusion will be discussed.

Tort Law and Judicial Risk Regulation: Bipolar and Multipolar Risk Reasoning in Light of Tort Law’s Regulatory Effects

AbstractAlthough judicial decisions in tort law primarily determine the (correlative) responsibilities and liabilities of the proceeding parties, they also have regulatory effects on non-litigants. In this contribution, these regulatory consequences of tort law will be analysed in light of a court’s quest when it decides a tort claim involving (uncertain) risks. It will be argued that decisions in tort law about uncertain risks involve the possible occurrence of a false positive (eg accepting liability for a non-existing risk) and a false negative (eg denying liability for a real risk). False positives and false negatives have adverse consequences for the parties to the proceedings but, bearing in mind the regulatory effects of tort adjudication, potentially also for non-litigants. While courts might want to avoid both, scientific uncertainties and complexities make it difficult for them to assess to what extent there is a chance of either a false positive or a false negative occurring. Therefore, they necessarily need to determine which party bears the risk of the involved errors. In addition, the question arises whether courts should also take the potential regulatory consequences of their rulings into account and, if yes, how? To that purpose, they can employ a bipolar reasoning style and a multipolar reasoning style. Although tort law is about determining the applicable rights and obligations between the plaintiff and defendant (bipolar reasoning), in light of the regulatory implications of tort law and developments in several tort systems, the relevance of considerations transcending this bipolar relationship (multipolar reasoning) is increasing. However, the possibilities for courts to engage in multipolar reasoning are restrained by the bipolar nature of tort law which gives rise to information and specialism deficits. This will be illustrated by referring to issues in relation to setting the standard of care and examining causation.

Climate Tort Federalism

This essay explores how judicial federalism principles can help organize and structure emerging state law climate tort initiatives. Rather than add to the debate on whether courts are institutionally suited to hear these claims in the first place, or whether federal or state courts would offer the better venue, this analysis instead simply assumes that these state law actions are coming. If so, we could soon face a situation where multiple state and federal courts will host sprawling and conflicting state law climate liability tort claims involving overlapping plaintiffs and defendants. What principles offer the best path to structure and manage such an overwhelming litigative scrum? Judicial federalism concepts could provide some of the guidance needed to structure and coordinate litigation in multiple fora at different levels of federal and state government. While most prior academic analysis has centered on how federalism allocates power between state and federal legislatures or agencies, similar concerns regarding preemption, displacement, and coordination will shape the complementary roles of federal and state courts in these lawsuits. The differing and idiosyncratic ways that state courts handle climate torts will reflect fundamental policy choices and principles built into the U.S. Constitution, federal and state judicial and environmental statutes, and long-standing fundamental precedents and judicial practices on civil procedure. This essay begins with a brisk look at the fate of prior federal common law climate tort actions, and sketches out the basic tenets and prior analyses of judicial federalism and its role in mass-party litigation. It then closely examines how climate tort claims under state law will pose fundamental challenges to the existing allocation of powers and responsibilities between federal and state courts, especially when federal courts host actions controlled by state law and when state courts hear claims involving extraterritorial impacts and the exercise of judicial authority over non-resident parties. Finally, after reviewing several instances where uncontroversial judicial notions of substantive jurisdiction and procedural rules yield troublesome results when applied to state law climate torts, it concludes with suggestions on how to use federalism principles to resolve some of these difficulties and better harmonize state law climate torts with the requirements of judicial federalism.

Introductory Remarks by Jill Goldenziel

Welcome to the Business and Human Rights in Action panel, sponsored by the ASIL Human Rights Interest Group. Business and Human Rights is an evolving field that has gone through many changes in recent years, with new legislative developments and private initiatives designed to improve corporate social responsibility practices and respect for human rights. Meanwhile, the Alien Torts Claims Act has been limited by the U.S. Supreme Court, and stakeholders have faced challenges involving corporations in transitional justice initiatives.

On Corporate Responsibility, Human Rights, and Transitional Justice: Quo Vadis?

The 2018 ASIL panel on the question of corporate responsibility and human rights, and in particular, my remarks on corporate responsibility and transitional justice, preceded a long-awaited United States Supreme Court decision on the question of whether foreign corporate responsibility for human rights abuses belonged in United States courts ending in a closely decided vote—dividing sharply along political lines, with the Court conservatives in splintered opinions deciding against such liability. A forceful dissent by the four liberals on the Court would have allowed the Alien Tort Claims Act (ACTA) claim to go forward.

Drone Invasion: Unmanned Aerial Vehicles and the Right to Privacy

Since the birth of the concept of a legally-recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, The Right to Privacy, common law – with the aid of influential scholars -- has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims. This Article explores the challenges of prosecution of the specific privacy tort of intrusion into seclusion involving non-governmental use of drone technology. Specifically, it proposes that drone technology must be an added consideration when determining the two elements of the intrusion into seclusion privacy tort. The current common law invasion of privacy tort analysis is not sufficient to protect an individual’s right to privacy for torts committed using the modern and complex technology of drones. Thus, considering drone technology must be weaved into analyzing whether the plaintiff had a reasonable expectation of privacy and whether the intrusion was highly offensive to a reasonable person. Further, this Article analyzes and evaluates the practical problems that arise in prosecuting intrusion upon seclusion claims in the drone-age, and how certain states’ statutes address or fail to address these issues. From determining the owner of the drone in order to name a defendant, to proving intent, it is almost impossible for a plaintiff to survive to establish a successful intrusion upon seclusion claim. Moreover, this Article suggests that statutes may combat many of the problems in prosecuting drone-related privacy tort claims by incorporating a rebuttable presumption that the defendant intruded upon the plaintiff’s seclusion once the plaintiff has alleged a prima facie case. This presumption is similar to the presumptions found in many state statutes regarding physical damage from torts committed with aircrafts against a person or property. Thus, because the defendant, a prudent drone owner, would be in the best position to disprove the intrusion, the defendant could rebut the claim by introducing such evidence as flight path data, photo of video footage, possession at the time of the alleged intrusion. With the constantly evolving technology and innovation in the age of drones, prosecuting William Prosser’s concept of the “right to be left alone” when an individual’s right to privacy comes with many challenges. Although other scholarship discusses the relationship between drones and privacy torts, this Article is novel in that it explores the practical issues of prosecuting intrusion upon seclusion claims in the age of drones. It further recommends considerations for courts and legislators when the right to privacy and drones collide.

Putting Right Holders in the Centre: Bolagsupplysningen and Ilsjan (C-194/16) - What Does it Mean for International Jurisdiction Over Transborder Intellectual Property Infringement Disputes?

This paper analyses what the decision in Bolagsupplysningen and Ilsjan (C-194/16) means for transborder intellectual property infringement disputes. In this case, the Court of Justice of the European Union extended “the centre of interests” basis of jurisdiction under Art. 7(2) of EU Regulation No 1215/2012 to legal persons claiming infringements of personality rights on the internet. The Court also held that actions for rectification and removal of content infringing personality rights may not be brought before the courts of a Member State where the content is accessible. This article concludes that the centre of interests basis of jurisdiction is generally not applicable to right holders claiming infringements of intellectual property rights and/or complementary tort claims, except arguably for claims for the infringement of moral rights and unfair competition claims where the act exclusively affects the interests of a specific competitor. Many questions remain with respect to the localisation of a victim’s centre of interests. In addition, the article concludes that the judgment in Bolagsupplysningen does not affect a right holder’s ability to obtain an injunction in the Member State in which content accessible on the internet infringes a forum IP right. Still, the centre of interests basis of jurisdiction has the potential to give right holders an advantage for claims of on-line infringements of moral rights and acts of unfair competition that exclusively affect them and it can be expected that authors and traders will take advantage of this opportunity when considering their IP litigation strategies.

THE TREATMENT OF SECURITIES RELATED CLAIMS IN INSOLVENCY

The generally accepted rule in insolvency is that equity holders come last when distributing the assets of the debtor. During the life of the company, shareholders can assume numerous roles that don’t have to be necessarily connected with their status as members. One of the situations that have emerged as fairly controversial concerns shareholders as a damaged party (especially in the domain of securities fraud). In this case, the controversy revolves around the question whether shareholders that suffered damage should be treated as tort claimants and ranked equally with other unsecured creditors, or should their claims be subordinated. These cases have shown the existence of the conflict between the rules of insolvency law and set of laws aimed at investor protection.

Arbitrability of Competition Claims in Tort and the Principle of Effectiveness of EU Law

This article discusses whether cartel damages claims are arbitrable under EU law. Although it is settled that most types of competition disputes are arbitrable in principle, the Opinion of the Advocate General and the ruling of the Court of Justice in Cartel Damage Claims (CDC) Hydrogen Peroxide SA v. Akzo Nobel NV (CDC) raise the question as to whether cartel damages claims fall within arbitration clauses entered into at a time when the claimant did not have knowledge of the cartel. This article argues that the CDC case does not compel national courts to interpret the scope of arbitration clauses as excluding cartel damages claims. The outcome of each case will depend on the law applicable to the arbitration agreement and the precise words in the agreement itself and it is not a matter governed by EU law. It cannot be excluded that the principle of effectiveness of EU law may require national courts to disapply arbitration agreements on the facts of a particular case but the threshold is a high one. It would not be sufficient for the claimant to persuade the court that it would have been more advantageous for him to make its claim in court or that the claimant was not aware of the cartel at the time of entering into the arbitration agreement. The claimant must prove that to arbitrate the claim would make the exercise of rights conferred by EU law impossible or excessively difficult. Given that arbitral tribunals are well equipped to deal with a wide range of disputes, including tortious claims and claims involving issues of a technical or economic nature, it is difficult to conceive of circumstances in which this threshold may be met.

Inferences of Judicial Lawmaking Power and the Law of Nations

This article, presented at a symposium occasioned by the publication of A.J. Bellia’ and Bradford Clark’s The Law of Nations and the United States Constitution, seeks to build on their work. It argues that the law of nations at the time of the founding can inform modern questions of statutory interpretation, at least those with structural constitutional implications. For one important statutory problem, namely a judicial inference of the authority to make federal common law from a grant of subject-matter jurisdiction, the legacy of the founding era’s law of nations still matters. Bellia and Clark observe that the Supreme Court twice has invoked an inference of prescriptive power from an assignment of adjudicative authority ‒ what I will call a prescriptive inference ‒ to authorize the federal courts to make (their take on) international law into federal law. In 1917, the Court inferred congressional authorization for the federal courts to make federal common law based on international maritime law from the constitutional and legislative grants of admiralty jurisdiction. In 2004, the Court inferred a power to develop a federal common law of international-law torts from the 1789 Judiciary Act’s grant of jurisdiction over tort claims brought by aliens based on the law of nations. Each of these moves frustrates a central goal that, Bellia and Clark argue, the framers pursued. Both increase the risk that the federal judiciary, acting without support or guidance from the political branches, may disturb the friendly relations of the United States with foreign states. These instances of the prescriptive inference present at least two puzzles. First, why make the inference with respect to admiralty and alien torts, but not alienage jurisdiction, at least in cases invoking the law merchant? The framers created federal alienage jurisdiction to get control over private-law disputes between Americans and foreigners, which State courts had mishandled to the harm of the nation. Why recognize a judicial power to override aberrant state rules in the case of admiralty and alien torts, but not other disputes involving aliens and one of the branches of the law of nations? Second, where does private international law fit in all this? Did the framers hope to promote the development of uniform rules of recognition of foreign law and judgments through the federal courts, just as they expected the courts to apply the international law merchant and maritime law? If the answer is yes, what explains our modern approach, which allows States to disregard private international law whenever they choose? I argue that prescriptive inferences generally are problematic and, in the case of international law, confront strong reasons for their avoidance. Contemporary practice with the law merchant and private international law offers a model for a kind of federalism that tolerates State law affecting foreign relations, while reserving to Congress the power to intervene to suppress State misrule. This model fits admiralty and human rights as much as international commerce and recognition of foreign law and judgments.

Torts and Guns

When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCCA), they were talking past each other, misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCCA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable. In contrast to the hopes and fears of Clinton and Sanders, repealing PLCCA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.

Concurrent Claims in Contract and Tort: A Comparative Perspective

Abstract: This contribution analyses whether, and to what extent, the law permits a choice between finding liability in contract and in tort. The answer to this question is important because the outcome of a case may differ depending on whether the claim for damages is based on a breach of contract or on a violation of a tortious duty. The contribution examines the approaches in several European jurisdictions. French law is straightforward: finding liability in tort is not possible if the damage is caused by or related to the (non-) performance of a contractual obligation. German, Dutch and English law take the opposite point of view: finding liability in tort is not precluded if the damage is caused by or related to the (non-) performance of a contractual obligation. This contribution traces the historical development of these approaches and explains their differences by looking at the underlying structure of these systems of private law. It also shows that the resoluteness of both solutions has softened over time, as a result of judicial and legislative interventions. To support this argument, recent developments in case law and legislation are discussed. Résumé: Cette contribution s’interroge sur la question de savoir si – et alors dans quelle mesure – le droit offre un choix entre les actions en responsabilité contractuelle et extracontractuelle. La réponse à cette question est importante car l’issue du litige peut varier selon que la demande en dommages-intérêts est fondée sur la violation d’une norme contractuelle ou extracontractuelle. La présente contribution examine cette question au sein des différents systèmes juridiques. En droit français, la réponse est univoque: la responsabilité extracontractuelle comme base de l’action en justice est impossible si le dommage est causé par ou lié à l’(in)exécution d’un contrat. Les droits allemand, néerlandais et anglais optent pour la solution inverse: utiliser la responsabilité extracontractuelle est possible même si le dommage a été causé par ou lié à l’(in)exécution d’un contrat. La présente contribution analyse le développement historique de ces approches et explique leurs différences en recourant aux structures sous-jacentes des systèmes de droit privé. Il se trouve que la détermination de chacune de ces solutions s’est atténuée avec le temps, à la suite des interventions du juge et du législateur. Pour soutenir cet argument, les développements récents dans la jurisprudence et la législation sont discutés.

'Go Sue Yourself!' Imagining Intrapersonal Liability for Self-Inflicted Harms

Are “self-inflicted” harms actionable? Courts increasingly have allowed victims to identify other (typically unrelated) parties that may share responsibility for such injuries. Moreover, insofar as judges now also permit lawsuits against closely related parties, they arguably have expanded what it means for a harm to qualify as self-inflicted. Taking these various doctrinal developments to an illogical extreme, this paper asks whether we should just let victims bring tort claims against themselves, understanding that the victims’ own liability insurers represent the intended targets. That this idea is not as crazy as it sounds suggests the extent to which tort law has become unhinged.