February 2020 Legal Report
The U.S. Supreme Court did not take up a case, allowing a lawsuit brought by the families of the 2012 Sandy Hook school massacre victims to proceed.
The Court decided not to consider an appeal from the Remington Arms Company, which had asked the higher Court to reconsider a ruling from the Connecticut Supreme Court. The Court's decision will send the ruling back to the lower court, which allowed the plaintiffs—nine family members of the victims and one survivor of the Newtown, Connecticut, shooting—to pursue a suit against the company and how it advertises the AR-15-style rifle that was used to carry out the shooting.
Ammunition and gun manufacturers like Remington have relied on the Protection of Lawful Commerce in Arms Act (PLCAA) of 2005 to insulate them against liability and lawsuits from shooting victims and their families. The law, however, allows manufacturers to be held liable in a handful of exceptions, such as if a deficient firearm resulted in an injury or fatality.
After the Sandy Hook shooting, victims' families filed a wrongful death suit against Remington in 2014. They claimed the company's marketing practices violated state laws, specifically the Connecticut Unfair Trade Practices Act (CUTPA).
According to the court documents, Remington "moved to strike the complaint, contending that all of the plaintiffs' claims were barred by the [PLCAA].... The defendants contended alternatively that the plaintiffs failed to state a legally valid negligent entrustment claim under Connecticut common law and that their claims predicated on alleged CUTPA violations were legally insufficient" for several reasons, including the state's three-year statute of limitations and that these claims were barred by the Connecticut Product Liability Act.
According to TIME, like tobacco companies were forced to disclose damaging internal documents as part of a 1998 civil settlement, Remington could also be ordered to provide internal communications regarding its advertising strategies, potentially exposing the company to other liabilities.
With the Court's roundabout upholding of the Connecticut Supreme Court, CUTPA's reach has broadened significantly, potentially exposing other companies operating in Connecticut to lawsuits, while simultaneously avoiding addressing U.S. gun laws.
The U.S. Supreme Court did not provide a reason for denying consideration of the case.
(Soto v. Bushmaster Firearms International, LLC, Connecticut Supreme Court, Nos. SC19832 and SC19833, 2019)
The U.S. government unsealed a criminal complaint against a surveillance and security equipment company and seven of its current and former employees for their roles in a scheme that generated more than $88 million in sales revenue since 2010.
Aventura Technologies, Inc., and Jack Cabasso, managing director and de facto owner and operator; Frances Cabasso, CEO and purported owner; three senior executives, and two other employees are charged with selling equipment with known cybersecurity vulnerabilities. They are also charged with concealing that the products were manufactured in China instead of the United States, which the company claimed.
Aventura sold the products to U.S. military, U.S. government, and private clients beginning in 2006. The equipment created cyber vulnerabilities for any agency or anyone using the products, potentially exposing the client or its facilities to a foreign government, according to a press release from the U.S. Department of Justice (DOJ).
The DOJ said the defendants coordinated with counterparts in the People's Republic of China to conceal their practices, even going as far as removing the original manufacturer’s initials from all circuit boards shipped to Aventura.
Four of the defendants face additional charges of defrauding the U.S. government because they falsely claimed that Frances Cabasso owned Aventura—not her husband, Jack Cabasso—to access government contracts earmarked for women-owned businesses.
The couple also faces money laundering charges. As of Security Management's print deadline, a trial date for the defendants had not been set. (United States of America v. Jack Cabasso, et al., U.S. District Court for the Eastern District of New York, No. 19-MJ-1035, 2019)
The High Court of Hong Kong ruled that a law banning protesters from wearing face masks is unconstitutional.
In October 2019, Hong Kong leader Chief Executive Carrie Lam reinstated the Prohibition of Face Covering Regulation to ban face coverings because pro-democracy protesters were using masks, helmets, goggles, and respirators to conceal their identities and protect themselves from police crowd control tactics.
The suit against the ban was initiated by 24 pro-democracy legislators in Hong Kong.
In its November 2019 ruling, the court explained that the ban did not align with the Basic Law, Hong Kong's de facto constitution, because it infringed on the protesters' fundamental rights—whether or not the government claimed there was any occasion of public danger.
The court's opinion did not address whether an emergency would supersede citizens' rights related to the law.
(Kwok Wing Hang, et al. v. Chief Executive in Council, High Court of the Hong Kong Administrative Region, No. HCAL 2945, 2949/19, 2019)
U.S. Senator Ron Johnson (R-WS), chairman of the Senate Homeland Security and Governmental Affairs Committee, introduced legislation that would create a federal Clearinghouse on School Safety Best Practices and federal assistance within the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency.
The Luke and Alex School Safety Act (S. 2779), named for Marjory Stoneman Douglas High School shooting victims Luke Hoyer and Alex Schachter, would help local school districts, parents, and law enforcement identify school safety measures and the resources needed to implement them.
If enacted, the bill would also centralize the latest school safety research, best practices, and grant opportunities for school districts seeking to improve their security.
Along with codifying and structuring best practices, the clearinghouse would review all federal school safety grant programs, identify the state officials responsible for school safety, and determine any grant program that could award funds for implementing best practices and recommendations.
U.S. Senator Kamala Harris (D-CA) introduced a bill that would earmark roughly $1 billion per year for municipalities that tend to be affected by wildfires.
The funds allocated from the Wildfire Defense Act (S. 2882) would go towards improving and developing defenses against wildfires in areas including infrastructure, land use, and evacuation route planning. If enacted, the bill would grant up to $250,000 from the U.S. Federal Emergency Management Agency to individual towns and cities for actions such as fireproofing homes and essential infrastructure, as well as plans for evacuating residents—especially those who cannot readily move themselves.
The legislation also addresses aging power grids, offering communities a chance to improve their energy infrastructure with the grants.
Two U.S. legislators proposed creating a new federal enforcement agency that would protect users' online privacy rights.
U.S. Representatives Anna Eshoo (D-CA) and Zoe Lofgren (D-CA) introduced the Online Privacy Act (H.R. 4978), which would require companies to disclose why they need to collect and process data, minimize access to user data, and create other provisions.
The bill would also create a Digital Privacy Agency, which would consist of up to 1,600 employees and be able to levy fines against companies that violate the Online Privacy Act. Damages would be comparable to the maximum fines the Federal Trade Commission can impose, up to $42,530 per incident.
Similar to the EU's General Data Protection Regulation, the legislation would also offer users additional rights in what data a company can maintain and how long that data can be kept. Companies would be required to notify the agency and users of any breaches.
The British Beauty Council, a not-for-profit advocacy organization for the beauty industry in Britain, asked the government to investigate alleged bullying and unfair firings.
The organization's late-November request came after the BBC investigated various claims of bullying and harassment within the cosmetics industry, which lacks a labor union. The investigative project spoke with several current and former cosmetic employees, some of whom had signed non-disclosure agreements. The allegations included bullying, abuse, and "bad practice," such as sabotaging employees' careers and pushing employees out for getting pregnant.
According to the BBC, companies' human resources departments are doing little to curb "an institutional bullying crisis" that resulted in some current and former employees experiencing anxiety, depression, and suicidal thoughts.
According to the British Department for Business, employees in all industries are protected against harassment by the Equality Act; however, by Security Management's print deadline, the government had yet to make a statement expressing an intent to investigate the allegations.
The U.S. Federal Communications Commission (FCC) voted unanimously to designate China’s Huawei and ZTE national security risks to the United States.
The designation prohibits any U.S. customers of the companies from accessing an $8.5 billion government fund for purchasing equipment or services.
Huawei and ZTE had until 22 December 2019 to contest the decision to ban U.S. companies from buying equipment from the manufacturers.
The FCC also proposed requiring American companies to remove existing equipment from the Chinese manufacturers. As of Security Management's press time, the FCC had not issued a proposal to implement that measure.
Following the vote, Huawei sued the commission. The company accused the FCC of cutting off access to the U.S. market and unfair treatment.
Elsewhere in the Courts
The Quebec Court of Appeals is considering arguments for an injunction against Bill 21, a law that bans some public-sector workers from wearing religious symbols during work hours. Opponents of the law claim it unfairly targets women and minority groups because those employed as school administrators, prosecutors, and police officers would be prohibited from wearing hijabs, kippas, or turbans, as well as other religious garb. The Quebec government supports the law, insisting it will preserve a separation of state and religion. (National Council of Canadian Muslims, et al. v. Attorney General of Quebec, Court of Appeal of Quebec, No. 500-17-108353-197, 2019)
A U.S. federal court ruled that the government must have a reasonable suspicion of digital contraband before searching electronic devices at airports and other points of entry along the U.S. border. The decision was issued in response to a suit filed by 11 travelers who claimed their smartphones and laptops were improperly searched because border security officers lacked individualized suspicion of contraband prior to the searches. One plaintiff informed an officer that her phone contained privileged attorney-client information; however, the officer still searched the device. The court's ruling ends U.S. Customs and Border Protection and Immigration and Customs Enforcement's ability to search and seize such devices beyond reasons stated in immigration and customs law. Officers must be able to prove that an individual traveler is suspected of transporting contraband prior to searching his or her device. (Alasaad v. McAleenan, U.S. District Court of Massachusetts, No. 17-cv-11730-DJC, 2019)
A U.S. federal appeals court allowed a class action lawsuit against Facebook to proceed, rejecting the company's arguments that its users suffered no "concrete harm" when it mapped and stored their facial data without consent—a violation of Illinois state law. The judges found that the ability to map and store such data without user consent could reasonably be considered an invasion of a person's privacy, providing the plaintiffs grounds to sue the social media company. The decision opens Facebook up to a $35 billion privacy suit, which includes $1,000 fine for each negligent violation and $5,000 for violation of the Illinois Biometric Privacy Act. (Nimesh Patel, et al. v. Facebook, Inc., U.S. Court of Appeals for the Ninth Circuit, No. 18-15982, 2019)