Articles Posted in Torts

Most laws were written before people started texting naked pictures of each other on their phones. No one had heard of so-called revenge porn until around 2010, when the controversial website “Is Anyone Up?” launched, allowing users to upload sexually explicit images of former romantic partners. That site ceased operation just two years after it started, but revenge porn is now more widespread than ever. So widespread, in fact, that several states (Virginia included) have decided that existing laws against copyright infringement, intentional infliction of emotional distress, and bullying were not offering victims sufficient protection. In Virginia, revenge porn is now a crime, as well as a civil cause of action for which legal remedies are available.

Under Virginia Code § 8.01-40.4, victims can sue for compensatory damages, punitive damages, and attorney’s fees. Injunctive relief may also be available. But what kind of financial recovery can vicitms expect to receive? How does one measure the emotional harm suffered as a result of sexual cyberbullying? If you bring a lawsuit and win, will the rewards outweigh the uncomforable and expensive process of open-to-the-public litigation? These are difficult questions to answer because–at least here in Virginia–few (if any) civil actions have been tried to verdict under the new revenge porn statute. But looking to some other jurisdictions may provide a clue as to what kinds of damage awards you might expect here in Virginia.

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So your fiancée broke off your engagement because she fell in love with your best friend and decided she likes him better. On top of that, she won’t return the $20,000 engagement ring you bought her. So the marriage is off, your finances are in shambles, and your (former) best friend is at least partially to blame because he asked your former fiancée on a date when he knew she was already engaged. What legal rights do you have?

Engagements are normally a happy and exciting time for the couple, but not all engagements result in marriage. Circumstances change, sparks fade, and life intervenes. Breakups are never easy, but introducing valuable personal property into the mix complicates things further. Only the most vindictive and bitter ex-boyfriends and girlfriends would demand the return of small gifts exchanged during a relationship, but attitudes change significantly when a $20,000 or $50,000 diamond is at stake. Who gets the ring if the engagement is called off? And what liability does the best friend have for seducing your fiancée?

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Legal claims are made up of elements. To sue somebody and win, you need to allege and eventually prove each element that makes up the legal theory on which you’re suing. And oftentimes, those elements have distinct legal meanings that differ from their dictionary definitions. Failure to pay close attention to the requirements of each separate element can result in dismissal of the case before it even gets started. Last month, a Virginia court summarily dismissed an IT consulting company’s claims for tortious interference for failing to allege the facts necessary to support such claims.

The case–Forsythe Global, LLC v. QStride, Inc.–was decided under Michigan law. Michigan, like Virginia, recognizes separate torts for tortious interference with contract, and tortious interference with prospective business relationships or expectancies. Under both the law of Michigan and the law of Virginia, tortious interference requires more than mere “involvement in the activities and concerns of other people when your involvement is not wanted.” (See Merriam-Webster’s definition of interference). There’s no law that requires people to mind their own business. To prevail in court, the interference must approach a specific threshold–meddling in other people’s affairs won’t satisfy the claim if the interference does not reach this level.

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To state a plausible breach-of-fiduciary-duty claim in Virginia, a plaintiff must allege enough facts to prove (1) the existence of a fiduciary duty, (2) the breach of that duty, and (3) resulting damages. The first element—existence of a fiduciary duty—is often the most difficult to prove. Fiduciary duties can arise in a number of different contexts, including between employee and employer, between corporate officer and corporation, and between principal and agent. The Western District of Virginia recently dealt with a case, Broadhead v. Watterson, in which agency was alleged as the basis for a breach-of-fiduciary-duty claim. The court reviewed the allegations and found them insufficient to state a valid claim.

The Virginia Supreme Court has defined agency as “a fiduciary relationship resulting from one person’s manifestation of consent to another person that the other shall act on his behalf and subject to his control, and the other person’s manifestation of consent so to act.” (See Reistroffer v. Person, 247 Va. 45, 48 (1994)). Such consent may be manifested expressly or may be inferred from the conduct of the parties and from the surrounding facts and circumstances. Independent contractors, as a rule, are not agents of any principal. The distinction between contractors and agents generally lies in the degree of control (or right to control) the methods or details of doing the work. There’s a presumption that a person acts on his own behalf and not as the agent of another, but this presumption can be rebutted with appropriate evidence.

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Everybody knows you can get in trouble for breaching a contract. But did you know that you can also get sued for inducing someone else to breach a contract that you’re not even a party to? Virginia, like many states, recognizes a cause of action for “tortious interference with contract.” The tort requires proof of four elements: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. (See Chaves v. Johnson, 230 Va. 112, 120 (1985)).

Basically, this means that if your business partner breaches a contract with you and the cause of the breach is the meddlings of a third person, your legal remedy may involve not only a breach-of-contract action against the business partner, but a tortious-interference claim against the meddler. This is a recognition of the value the law places on contract rights. Interfere with them at your peril.

Still, there won’t always be a culprit. Sometimes, contracting parties are simply unable to meet their obligations and have no choice but to breach. Other times, a third person might have induced the breach, but for reasons that the law regards as understandable and reasonable (and therefore privileged). Breaching a contract on the advice of counsel, for example, is unlikely to result in a tortious interference claim against the lawyer. And once a contract has been breached without the involvement of any third parties, no tortious interference claim will lie against anyone who wanders into the situation after-the-fact.

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Much has been made of the latest amendments to the Federal Rules of Civil Procedure, effective December 1, 2015, some going so far as to call them “the most significant change to federal civil practice in the last decade.” In particular, Rule 26 has been amended to include a new “proportionality” provision. Rule 26(b)(1) now limits discovery to “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case,” apparently imposing an enormous limitation on the scope of permissible discovery.

The concept of proportionality, however, is nothing new. Even before the 2015 Amendments, Rule 26 provided that discovery should be limited if it “is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” The Eastern District of Virginia recently had a chance to grapple with the new rule in a defamation case, and the implication of the court’s holding is essentially that not much has changed, but that litigants and the court should pay a little extra attention to proportionality as they deal with discovery issues.

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Most Virginia litigators will tell you that there are four elements to a claim of tortious interference with contractual relations in Virginia: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.

There is a line of cases in federal court, however, that recognizes a fifth, “unstated” element of tortious interference; namely, the existence of a competitive relationship between the party interfered with and the interferor. In 17th St. Associates, LLP v. Markel Int’l Ins. Co., 373 F. Supp. 2d 584, 600 (E.D. Va. 2005), the court found that a reading of pertinent Virginia Supreme Court cases implied that “the tort of intentional interference with a business expectancy contain[s] a fifth, unstated element to the prima facie case: a competitive relationship between the party interfered with and the interferor.”
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Back in 2012, the Alexandria Circuit Court ruled in an Internet defamation case that discovery could be obtained from a nonresident third party by serving a subpoena on the company’s registered agent in Virginia. That decision was reversed last week by the Virginia Supreme Court in an unambiguous ruling that is going to force a lot of Virginia attorneys to make greater use of the Uniform Interstate Depositions and Discovery Act.

I had been following this case–Yelp, Inc. v. Hadeed Carpet Cleaning, Inc.–over the past few years with great interest, not because of the subpoena-power issue, but because the case involved some fascinating First Amendment issues and promised to offer some guidance on the correct application of Virginia’s “unmasking” statute, Section 8.01-407.1. For example, would an interactive computer service like Yelp have standing to object to complying with an enforceable subpoena by invoking the First Amendment rights of its users? Does a plaintiff need to produce evidence to meet 8.01-407.1’s “showing” requirement or can it make the required showing merely by by alleging a prima facie cause of action for defamation? In a case involving online negative reviews phrased as non-actionable statements of opinion but written anonymously by competitors hiding behind a pseudonym, how can a plaintiff demonstrate falsity (i.e., that the reviewer was not an actual customer) without an opportunity to use discovery to ascertain the poster’s true identity? The justices showed keen interest in questions like these at oral argument, but ultimately decided to save addressing them for another day.
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Suppose you’re a senior executive at a company that regularly transacts large volumes of business with another company, when the wife of the other company’s CEO files what you believe to be an unwarranted sexual harassment lawsuit against your company, presumably with the consent or approval of her husband. I suspect many would assume that you would have the right to cease doing business with that company due to the strain on the relationship caused by the wife’s lawsuit. Shouldn’t you have the right to decide for yourself which companies deserve your business? Well, be careful. In an opinion written by Eastern District of Virginia Judge James C. Cacheris last month, the court found that allegations like these were sufficient to state a claim for tortious interference with contract under Virginia law.

Tortious interference is a legal theory that requires a plaintiff to allege (and eventually prove) the following elements: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. If the contract is “at will,” such as the typical employment contract that either party is free to terminate at any time, it must also be proven that the defendant employed “improper methods.” After the case of Stephen M. Stradtman v. Republic Services, Inc., it would appear that “business retaliation” can qualify as the required “improper method” to support a tortious interference claim.
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“I made a copy of the client list because they are my clients; I won the business for my company” is a refrain I hear often in consulting with former employees. We’re sorry to have to tell you that this commonly held belief is not accurate. Those clients and customers you may have generated as an employee are not “yours” to take with you. They belong to the company. Making a copy of such a list by printing it, downloading a file, copying it onto a flash drive, or emailing the list to yourself can get you into a lot of trouble because such actions violate Virginia common law as well as certain Virginia statutes. This is true whether or not employees are subject to a noncompete or nonsolicitation agreement. Here are several laws a former or soon-to-be former employee may be violating by copying or taking a former employer’s client or customer list:

If you copy, download, or upload the company’s client and/or customer lists, you may be committing the business tort (the legal term for a civil “wrong”) of conversion. Conversion is the wrongful exercise over another’s property, which deprives the owner of possession, or any act of dominion wrongfully exerted over the property in denial of or inconsistent with the owner’s rights. This means that if your former employer gets its IT people to inspect your computer or work phone and discovers you’ve taken a client list, you may be found liable for conversion of the employer’s property.
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