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September 24, 2009

ACORN's Suit: Confused
Is There An Expectation of Privacy?
SLAPP it on the Bing-Bomg


No jury in the world gonna find against that.

Zero Sheep, a research attorney, doesn't go into the deep weeds of the law so much as he notes the profound schizophrenia of ACORN's lawsuit.

Among the points he makes: the two individual defendants cannot say that Breitbart et al. are the "proximate" (direct and immediate) cause of the loss of employment, for example. Obviously that honor belongs to their co-plaintiff, ACORN.

And ACORN can't really claim that its communications were intercepted, because its claim seems to be that what these two did had nothing to do with ACORN. Completely contrary to ACORN's policy. Hence, the firing.

So how can ACORN join a suit claiming its communications were recorded? Are they going to admit that these two workers were in fact faithfully transmitting the contents of their employee training manual?

Makes no sense, as that lawyer writing in to NRO said, and in fact, I'm kinda thinking that writer was Zero Sheep since he's banging this drum pretty loud. Update: No, he wasn't the same guy.

Question: Damn I'm rusty. But I'm wondering if Breitbart et al. can drag ACORN in as a co-defendant against the individuals' suing, and put ACORN on the hook, partially or wholly, for any damages they are found to have suffered.

Because ACORN was in fact the direct cause of much of their "distress" by firing them, and the less-direct cause of all the rest of it by not training them properly and failing to supervise them.

So if the individuals are found to be owed, whatever, say $50,000 in damages, it's possible -- though I really forget -- that Breitbart et al. can argue and prove they are only (say) 5% responsible for those damages, with ACORN itself having to pay its employers the other 95%.


Bring ACORN In as Co-Defendant! I asked Zero about this and he wrote back:

Was writing a whole paragraph, then remembered the term: apportionment of fault (or that's one term for it anway). [re: what I was calling contributory negligence, which isn't the right term here, as this isn't a negligence case -- ace.]

I had also veering off into left field since I was focusing on that -- if that were the only issue, then it would be a tactical decision based on MD law, which I don't know. But then I realized it didn't really matter, because the smart thing to do actually would be to sue ACORN as a third party defendant (or something to that effect) up front, claiming that any damages for the emotional distress that might be assessed against the defendants should actually be paid by ACORN. It might not shake out that way in the end, but I think counter-suing ACORN as a third-party defendant would be a smart tactical move.

Yeah, that's what I'm saying. ACORN caused at least some, if not most (if not all) of the damages to the individuals here, so why should ACORN not sit right besides Breitbart et al. as damages are figured and the relative fault of those responsible is assessed?

ACORN would be suing Breitbart for one purpose but a defendant along with Breitbart standing against the individual plaintiffs.

It would be... anarchy, really. It would be Thunderdome. Kookoobananas, baby.

Cleaning Up the Terminology: A lawyer writes:

Defendants can cross-claim against Acorn for equitable indemnity and ask for an apportionment of the damages. Also, Acorn also might have fallen into an anti-SLAPP trap.

I'm going to call to get the details on that.

Flyover Sam makes a great point in the comments. "Reasonable expectation of privacy?" Oh? Workplaces are defined by their employers as places where there is no reasonable expectation of privacy.

In our workplace, we handle PII (personally identifiable information) and financial data - things like your credit card number, checking account number, social security number, tax return, etc. In our employee policy, we mention that employees have no reasonable expectation of privacy because we may (and do) employ controls that supervise the protection of that PII. For instance, where actual credit cards are handled, there are cameras galore, plus a bunch of other controls that would freak most people out. We also have controls around email messages, instant messages, computer usage and a variety of other information technology supervision mechanisms. While this may seem extreme, when you all read about how Heartland Payments had a few hundred thousand records breached, you'll appreciate that the time for such an event to occur can be mere seconds in the IT world, and can result from simple things like employees attaching an inappropriate file and emailing it.

Subsequently, there is no expectation of privacy in our workplace, or for that matter, a bank, an IRS office, an H&R Block office, or really any location that handles PII. The company has the inherent right to supervise employee conduct through various surveillance controls in order to protect that information.

Damn this suit is really beginning to look very, very weak.

Ahhhh... A method to ACORN's madness?

Reasonable expectation of privacy works like this (unless I've forgotten): If you know a third party, X, may legally be listening in, you have no reasonable expectation of privacy usually against other third parties Y and Z. Once you know your conversation isn't private, in other words, you generally don't have privacy any more, not just with regard to the person you expect to be listening in, but anyone else.

So: If ACORN works like a legitimate business and checks its employees to make sure they're not stealing credit card numbers (perhaps a dubious proposition, that), then the individuals have given up their reasonable expectation of privacy as regards Giles and O'Keefe, too.

So the thinking here, I think, is this: ACORN joins this suit as a co-plaintiff despite how insane that seems. But the reason they're joining it is to say "Hey, ACORN and the two individuals are in this together and should be treated as one single entity; while we did not have a reasonable expectation of privacy vis a vis each other, the three of us, together, have a reasonable expectation of privacy that 'our' conversations were private from anyone else."

Since usually proving that X could listen in and you knew that would mean that Y and Z could listen in too, ACORN's trying to say: We're not X, we are not a third party listening in ourselves who would destroy the employees' expectation of privacy, all of us together are one big happy family having one big private conversation amongst ourselves, which no one else can listen in on.

This seems stupid to me, and perhaps can just be dispensed with by pointing out, "This is friggin' stupid." If not, get ACORN (who doesn't have standing anyway) tossed from the suit as quickly as possible. Then the employees can't say they had an expectation of privacy breached, because they already knew that one outside party -- ACORN -- had a right to listen in.

A right that ACORN doesn't seem to have exercised very often, but that doesn't matter.

Anti-SLAPP: A lawyer sends me the Anti-SLAPP statute.



§ 5-807. SLAPP suits. (a) "SLAPP suit" defined.- In this section, "SLAPP suit" means a strategic lawsuit against public participation. (b) Nature.- A lawsuit is a SLAPP suit if it is: (1) Brought in bad faith against a party who has communicated with a federal, State, or local government body or the public at large to report on, comment on, rule on, challenge, oppose, or in any other way exercise rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body; (2) Materially related to the defendant's communication; and (3) Intended to inhibit the exercise of rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights. (c) Scope of immunity.- A defendant in a SLAPP suit is not civilly liable for communicating with a federal, State, or local government body or the public at large, if the defendant, without constitutional malice, reports on, comments on, rules on, challenges, opposes, or in any other way exercises rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body. (d) Remedies of defendant.- A defendant in an alleged SLAPP suit may move to: (1) Dismiss the alleged SLAPP suit, in which case the court shall hold a hearing on the motion to dismiss as soon as practicable; or (2) Stay all court proceedings until the matter about which the defendant communicated to the government body or the public at large is resolved. (e) Applicability.- This section: (1) Is applicable to SLAPP suits notwithstanding any other law or rule; and

(2) Does not diminish any equitable or legal right or remedy otherwise available to a defendant in a SLAPP suit.

ACORN was a "partner organization" to the IRS, which was the whole reason for this exercise.

Seems... I don't know. There seems to be like five different ways of getting this thing booted out of court early.


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posted by Ace at 12:04 AM

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