Atlanta Law

The Atlanta-based 11th Circuit Court of Appeals rejected how CNN and other medial companies demanded the special dismissal provision found in Georgia’s anti-SLAPP statute in a defamation case. The loss of this important appeal will – at the minimum – make it easier to file suit against the media in federal court particularly in Alabama, Florida, and Georgia. CNN is headquartered in Atlanta, Ga.

The Underlying Case

The appeal to the Eleventh Circuit is the result of several reports on Anderson Cooper 360 in June 2015 on the infant mortality rate for open-heart surgery at St. Mary’s Medical Center – a West Palm Beach, FL hospital. The show claimed St. Mary’s death rates were three times the national average. The reporting sparked defamation lawsuits from the former chief executive at the hospital who was forced to resign as a result of CNN’s report. The executive claimed that CNN made an unfair comparison of hospitals that conduct both open-heart and closed-heart surgeries which, had it been properly made, would have adjusted for risk and changed the death rates.

CNN argued that the plaintiff could not meet the “of and concerning” standard required by a defamation suit because executive was not mentioned by name in the series. CNN also argued an “academic” disagreement that the methodology of how to calculate the mortality rates is a non-actionable opinion. These arguments, however, were placed on the back burner as a result of the standard that the Georgia federal judge must decide whether or not the case should be dismissed. Like other states, Georgia has tried to reduce frivolous First Amendment lawsuits by passing an anti-SLAPP statute. SLAPP stands for Strategic Lawsuits Against Public Participation. Under the statute, the plaintiff bears a higher evidentiary burden above and beyond those imposed by the federal rules of civil procedure. Accordingly, the 11th Circuit held the SLAPP statute should not apply. Notably, other federal circuits around the country – including the First, Second, Fifth, and Ninth – have ruled that state SLAPP laws should apply in federal courts.

Defamation Explained

Defamation of character is a term that encompasses any statement that hurts another’s reputation. When this happens in writing, it is referred to as “libel”; when it occurs in verbal form, it is referred to as “slander.” While defamation is not a crime, it is a civil wrong – or a tort. An individual who has been defamed has a private right of action to sue the person (or entity) who did the defaming for monetary damages.

Nevada’s law that governs defamation tries to balance two competing interests: People should be able to speak freely without fear of litigation over each mistake, insult, or disagreement, while a person’s life should not be ruined by lies that are told about them. While defamation is governed by state law, and varies from state to state, a victim of defamation must establish that the statement was published, is false, was injurious, and is unprivileged in order to succeed in a defamation lawsuit. Because the public has the right to criticize them, public officials have less protection from defamation. In addition to proving the four elements previously mentioned, a public official must also prove the defendant acted wit

The highest court in our land has agreed to add Kisor v. Wilkie to its docket of cases it will review during its session. According to Jurist.org, however, the Supreme Court of the United States (SCOTUS) will limit its review to the first question only that was presented by the petition for certiorari. The question asks the court to reconsider case precedent that directs courts to defer an agency’s reasonable interpretation of its own ambiguous regulation. The cases that establish this precedent include Auer v. Robbins and Bowles v. Seminole Rock & Sand.

Auer Deference

Auer v. Robbins is a SCOTUS case concerning the standard that the Court should apply when reviewing an executive department’s interpretation of regulations that were promulgated under federal legislation.The issue in Auer was whether or not sergeants and lieutenants who were working for the St. Louis Police Department should receive overtime pay. Overtime pay requirements were established by the Fair Labor Standards Act of 1938 and regulations determining whether an employee was covered by this requirement were issued by the U.S. Department of Labor. The Secretary of Labor issued an interpretation of the regulations and the court considered whether or not it should defer to this interpretation.The Court gave deference to the DOL’s interpretation because his interpretation was controlling unless plainly erroneous or inconsistent with the regulation, which it found it was not.

The Case at Hand

Kisor, a Vietnam War veteran, reopened a claim for disability benefits based on newly found evidence supporting a diagnosis of PTSD. While the Department of Veterans Affairs (“VA”) approved Kisor’s 2006claim for benefits, it refused to grant benefits going back to his initial claim in 1983. The VA’s reasoning ws that Kisor failed to provide relevant service records required for reconsideration. The Court of Appeals deferred to the VA’s interpretation of its own regulations finding in favor of the agency.

How much deference agencies should receive is a central issue in administrative law and, not surprisingly, conservatives – both justices and attorneys – have criticized Auer deference. In fact, the late Justice Scalia voiced concern on this very issue in Perez v. Mortgage Bankers Association. Auer deference expands Chevron deference, by giving an agency the highest level of deference. In Chevron, there was a two-step standard a court had to follow when reviewing an agency’s decision; Auer did not adopt this two-step process.

The  Supreme Court is scheduled to hear oral arguments on the Kisor case next year.

Earlier this year, the U.S. Supreme Court appeared to allow a lawsuit proceed against Apple, Inc., accusing the company of breaking federal antitrust laws by monopolizing the market. The allegations are that iPhone monopolized the market for its software applications and caused consumers to overpay. After an hour of oral arguments in an appeal by a California-based technology company Cupertino, the justices decided to revive a proposed class-action lawsuit filed in California federal court in 2011 by a group of iPhone consumers seeking monetary damages.

The Court’s Reasoning

The case may be based on how the justices apply one of the Court’s prior decisions from 1997 to claims against Apple. In that case, the Court limited damages for anti-competitive conduct to those who were directly overcharged instead of indirect victims that paid an overcharged passed on by others.

Apple, and the U.S. Solicitor General, argued that consumers were not directly affected by purchasing the apps from the company. Attorneys for the iPhone users argue that Apple’s monopoly causes inflated prices in comparison to if the apps were sold through other sources.

How it Works

While app developers set their own prices for their apps, Apple collects the payments from iPhone uses and keeps a 30% commission on every transaction. One issue in dispute is whether or not the app developers recuperate the commission charged by passing on the costs to consumers. According to Apple, app developers earned more than $26 billion in 2017 – a 30% increase over the prior year’s revenues.

The Lawsuit 

The California class-action lawsuit alleged Apple violated federal antitrust laws by mandating apps be sold through the company’s App Store while taking 30% commission from the app purchases. Apple sought to have the antitrust lawsuit dismissed, arguing the plaintiffs lacked legal standing to bring the claims. A California federal judge in Oakland dismissed the lawsuit, holding that iPhone consumers were not direct purchasers because the app developers passed on the higher fees to them. The 9th U.S. Circuit Court of Appeals, based in San Francisco, revived the class action lawsuit last year holding Apple was a distributor that sold iPhone apps directly to its consumers.

A federal judge in Detroit held that Congress has no authority to ban female genital mutilation. The decision resulted in the dismissal of charges regarding the procedure against eight individuals. U.S. District Judge Bernard Friedman ruled Congress did not have authority under the commerce clause to ban female genital mutilation because the procedure does not affect interstate commerce. Several news media reported the decision including the Detroit Free Press, the Detroit News and the Associated Press.

Understanding the Procedure

Common in some parts of Africa, Asia, and the Middle East, female genital mutilation is a procedure that is said to be part of a religious custom for girls in a Muslim sect known as the Dawoodi Bohra. The purpose of female genital mutilation is to ensure girls remain virgins until marriage. The procedure is also purposed to discourage adultery, according to reports. The federal ban on female genital mutilation was born in 1996 and backed by then Senator Harry Reid of Nevada.

The Arguments for the Federal Ban

Two arguments were put forth by the government in support of the federal ban’s constitutionality. The first argument was that Congress has the power to pass the female genital mutilation ban under a treaty ratified by the Senate in 1992. The treaty, according to the government, calls on member countries to provide political and civil rights to men and women and also calls for protection of minors on a non-discriminatory basis. The court found no logical relationship between the treaty and the ban on female genital mutilation. Alternatively, even if the court did find a relationship between the two, it noted that federalism does not allow Congress to enact the ban.

The government’s second argument was that the commerce clause granted Congress authority to ban female genital mutilation. The court also rejected this argument, stating that the procedure could not be classified as an economic or commercial activity. Citing to a U.S. Supreme Court (SCOTUS) decision in United States v. Morrison, the court noted this procedure can not be distinguished from other gender-motivated crimes of violence, which the SCOTUS found not to be part of the interstate market.

The Defendants

The defendants in the case included two Michigan doctors, one who allegedly performed female genital mutilation procedures on nine girls and the other who allowed the procedures to take place in his clinic. Additionally, four mothers who took their daughters for the procedure were charged as well the wife of one of the doctors and a worker who assisted in the surgeries. The court left obstruction charges in place against the defendants, which can carry a prison sentence of up to 20 years. Other criminal charges against the defendants remained in place including conspiracy with intent to engage in illicit sexual conduct defined as the intentional touching of another under the age of 16 with the intent to abuse, degrade, or harass; this charge carries a maximum sentence of life in prison.

While Michigan is one of 27 states in the nation that have laws on the books banning female genital mutilation, its law was passed to later to apply to the case at hand.