On double recovery

The upcoming investiture of Judge Teresa Chafin to the Virginia Court of Appeals makes me think about what a pleasure but also a challenge it must be for her to join a court with the likes of Chief Judge Felton, Judge Humphreys, Judge Kelsey, and Senior Judges Baumgardner and Annunziata.

Also, it makes me think of a case she decided once where the issue was the extent to which, if any, the settlement between a truck owner and the repair shop over a claim related to the repair of an engine would bar the truck owner's recovery from the manufacturer for breach of warranty, where the manufacturer claimed the injury and damages for both claims were the same - a bad engine.

So, the manufacturer argued that the settlement with the repair shop gave the truck owner a single satisfaction and the owner was not entitled to a double recovery, citing Nizan v. Wells Fargo. In Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202, 355 S.E.2d 306 (1987), the Supreme Court held that “where there is one indivisible injury, as here, for which settlement has been consummated, unconditional release of one allegedly liable for the injury bars recovery against others also allegedly liable, regardless of the theory upon which liability is predicated.” 233 Va. at 207, 355 S.E.2d at 309. The same rule was applied in Cox v. Geary, 271 Va. 141, 624 S.E.2d 16 (2006), in an opinion by Justice Kinser. The point of both cases was that where the relief sought from the multiple defendants is identical, one satisfaction is all the plaintiff can have, regardless of the different legal theories of liability. In Virginia, “a party with two valid causes of action is entitled to ‘seek compensation in each, [but is], nonetheless, estopped from collecting the full amount [of damages] in the second action if they were partially paid therefor in the first.’” Nizan v. Wells Fargo Bank Minnesota National Association, 274 Va. 481, 491, 650 S.E.2d 497, 502 (2007) (quoting Katzenberger v. Bryan, 206 Va. 78, 85, 141 S.E.2d 671, 676 (1965)). “Katzenberger establishes that what is dispositive to a defense of double recovery is whether the damages claimed, on whatever theory of liability, are the same damages. If the element of damages is the same, it makes no difference that the potential payors are not joint tortfeasors or jointly and severally liable under the same theory of liability.” Nizan, 274 Va. at 499, 650 S.E.2d at 506.

Judge Chafin thought this was interesting but too clever, to argue that the settlement with the one defendant had released the other outright. She noted the 2007 amendment to Va. Code 8.01-35.1, which changed the language of the section from "persons liable in tort for the same injury" to "persons liable for the same injury." She held that consistent with that statute, the first settlement did not discharge the second claim, but the amount that could be recovered from the manufacturer would be reduced by the amount of the first settlement. It was a pretty good opinion, I thought, and impressed me quite a bit.

The free speech rights of lawyers to criticize quasi-judicial tribunals

Earlier this week in Berry v. Schmitt, the Sixth Circuit in an opinion by Judge Rogers, joined by Judge Daughtrey, held that the Kentucky Bar Association violated the First Amendment rights of a Kentucky lawyer by imposing a reprimand on him for his comments that were critical of the failure of Kentucky's legislative ethics commission to act against a well-known state legislator. The Bar did not claim that the lawyer made any false statements. The Court observed that "[e]ven assuming that Berry believed that the Commission had broken the law, he provided the public with the facts upon which his opinion relied. The majority distinguished this case from lawyers speaking in the courtroom, or lawyers speaking outside the courtroom in ways that involve the "unmitigated expression of disrespect for the law." The third judge on the panel concurred in the opinion but wrote separately to express his view that the lawyer's case was mostly an exaggeration borne of his "long-running feud" with the Kentucky Bar Association.

The Lexington paper, the Louisville paper, and the Associated Press had articles about the case.

It is impossible to read such a story without recalling the unfortunate Richmond lawyer, who at the time was only a few years younger than I am now, who received a show cause from the Virginia Supreme Court for words he delivered to Justice John Charles Thomas of the Virginia Supreme Court in at a Christmas party in 1987, along with the two other cases described in this VLW article.

When is unauthorized use not "use without authorization"

In WEC Carolina Energy Solutions LLC v. Miller, the Fourth Circuit in an opinion by Judge Floyd joined by Judge Shedd and Senior Judge Hamilton held that the defendant's alleged violation of his former employer's policies against downloading confidential company documents for personal use could not be the basis for a civil action under the federal Computer Fraud and Abuse Act, which provides a civil remedy for violations of the criminal act that defines a crime involving the use of computers "without authorization" or "in excess of authority."

Recognizing a split in the authority from other circuits, the Court joined with the more restrictive Ninth Circuit view stated in United States v. Nosal, 676 F.3d 854, 863 (9th Cir. 2012) and refused to follow the Seventh Circuit view stated in Int’l Airport Ctrs., LLC v. Citrin, 440 F.3d 418 (7th Cir. 2006). The Court concluded: "[W]e adopt a narrow reading of the terms 'without authorization" and "exceeds authorized access" and hold that they apply only when an individual accesses a computer without permission or obtains or alters information on a computer beyond that which he is authorized to access.'"

Interesting, the Virginia Computer Crimes Act, adopted around the same time as the federal act, includes a definition of "without authority" - "A person is 'without authority' when he knows or reasonably should know that he has no right, agreement, or permission or acts in a manner knowingly exceeding such right, agreement, or permission." Va. Code 18.2-152.2. In 2005, the legislature removed the element of "without authority" in the criminal trespass statute, and replaced it with the element of "malicious intent." Acts 2005, c. 812. You'd think that the lack of authority would be the fundamental aspect of a computer trespass but evidently it is too problematic, as evidenced by the Fourth Circuit opinion and the amendment to the Virginia statute. Computer users do things all the time that might be beyond the scope of what they are supposed to be doing. The result is that the criminalization of all computer use beyond the scope of express authority casts too wide a net.