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Brief of appellant
Case no: 24AP876
Case name: Mary McCudden v Katy Scarlett Johnson
Court of Appeals District: I
Filing attorneys: Richard Esenberg, Luke Berg, Lucas Vebber, Natalie Burmeister
Law firm / agency: Wisconsin Institute for Law and Liberty
Filing attorney: Thomas Kamenick
Law firm / agency: Wisconsin Transparency Project, Kamenick Law Office
Circuit Court: Milwaukee County
Judge: Kristy Yang
Issues presented
1. Whether statements like “woke,” “god complex,” “white savior,” “woke lunatic,” and “bully” are capable of being proved false, and, in turn, are actionable as defamation?
The Circuit Court held yes.
2. Whether Johnson’s posts are protected by the First Amendment from a defamation trial?
The Circuit Court did not directly conduct a First Amendment analysis, even though Johnson raised it.
Introduction
This lawsuit involves a defamation claim for run-of-the-mill social media posts on X (formerly Twitter) and Facebook. The posts in question criticized a school district for having a “social justice coordinator,” and described people who hold such positions as “woke,” “white savior[s]” with a “god complex,” “woke lunatics,” and “bullies.” Statements like these are pervasive on social media; indeed, they were more restrained than a lot of online speech. Nevertheless, Plaintiff MacCudden, who previously held the position, chose to respond with a defamation lawsuit.
The school district was Mequon-Thiensville. - AW
This case should have been promptly dismissed. It is well-established, black-letter law that, to be actionable for defamation, a statement must be “provably false.” That is, a comment must directly state or clearly imply an objective, binary truth claim that listeners would reasonably understand to be either true or false. Courts regularly hold that nebulous concepts like “woke” and “bully” that are routinely and indiscriminately thrown about in public discourse are not actionable precisely because their meaning depends on one’s opinion and viewpoint. The statements here fall squarely into the non-actionable, not-provably-false category.
Nevertheless, the Circuit Court denied both a motion to dismiss and a motion for summary judgment, and now intends to hold a trial on whether MacCudden really is “woke” or has a “god complex.” This is not only at odds with the law, it’s incoherent. How is one supposed to prove, at trial, whether MacCudden is “woke”?
Proceeding with this trial will subject Defendant Johnson to significant, unrecoverable expenses, and simultaneously violate her First Amendment rights. For this reason, “the Supreme Court has directed courts to expeditiously weed out unmeritorious defamation suits,” and appellate courts have done so, in part, by reversing denials of summary judgment. The Wisconsin Supreme Court has likewise directed the Court of Appeals to give “careful consideration” to appeals in defamation cases where constitutional rights are implicated. This Court should reverse the Circuit Court and direct the entry of summary judgment in Johnson’s favor.
Brief of appellant
Case no: 24AP1510
Case name: Alp Baysal, Sandra Italiano, Thomas Maxim, and Robert Park v American Family Life Insurance Company, Midvale Indemnity Company, and American Family Mutual Insurance Company
Court of Appeals District: IV
Filing attorneys: Jessica Servais, Kate Baxter-Kauf, Karen Hanson Riebel, and Maureen Kane Berg
Law firm / agency: Lockridge Grindal Nauen
Circuit Court: Dane County
Judge: Nia Trammell
Overarching issue:
Did the trial court err by ruling that Plaintiffs lacked standing to bring this case in the Wisconsin State Courts?
Statement of the case:
In February 2021, at the height of the pandemic, the New York State Department of Financial Services (“NYDFS”) issued an industry letter to insurance companies alerting them to “a systemic and aggressive campaign to . . . steal unredacted drivers’ license numbers [from insurers’ instant quote websites, and that], at least in some cases, this stolen information has been used to submit fraudulent claims for pandemic and unemployment benefits.”
NYDFS had learned from two auto insurers that cybercriminals were targeting their websites to obtain unredacted drivers’ license numbers as part of a growing fraud campaign targeting pandemic and unemployment benefits and so the NYDFS alerted the entire industry to the problem.
Insurers’ instant online auto quoting websites were the primary entry point for cybercriminals to access consumers’. On the instant quote websites, “criminals entered valid name, any date of birth and any address information into the required fields” and then captured the full, unredacted drivers’ license numbers without going any further in the process and abandoned the quote. Drivers’ license numbers are protected information under the Drivers’ Privacy Protection Act t (“DPPA”), and insurers may obtain, use, or disclose them only for limited purposes under the Act – mostly to verify identities for underwriting purposes. Of course, insurers need not use drivers’ license numbers on a sales platform, or disclose this information to the public, to underwrite any auto insurance policy, but several insurers, including defendants, had added a “pre-fill” feature to their instant quote platforms in order to increase their sales, thus disclosing unredacted drivers’ license numbers to anyone who entered a bare minimum of publicly available information about that individual.
Several insurers were caught up in this scheme by which malicious actors obtained protected drivers’ license numbers from their instant quote websites and used them to commit unemployment and pandemic benefits fraud and other identity theft, including the three defendants here: Midvale Indemnity Company (“Midvale”), American Family Insurance Company, S.I. (“AmFam”), and American Family Life Insurance Company (“AFLIC”) (collectively “American Family” or “defendants”). Other insurers who disclosed protected drivers’ license numbers on their instant quote websites included GEICO, Travelers, USAA, and Farmers.
After members of the public experienced a variety of identity theft following this “systemic campaign,” including fraudulent unemployment applications and fraudulent financial accounts opened in their names, many of them brought suits against this array of insurers who had disclosed their drivers’ license numbers to cybercriminals and enabled that fraud.
The American Family defendants were particularly egregious insurers, because they permitted a series of three separate data disclosures on their instant quote websites. Plaintiffs Baysal, Italiano, and Maxim brought suit for the first two data disclosures (against Midvale and AmFam). Almost a year later, AFLIC enabled the third data disclosure by the very same mechanism, and plaintiff Park brought suit.
While several federal district courts around the country have found standing under these circumstances and litigation has proceeded against GEICO, USAA, Travelers, and Farmers, the federal courts hearing the cases against the American Family Defendants decided they lacked jurisdiction under Article III of the U.S. Constitution and dismissed these cases without prejudice, and without any evaluation of the merits.
Article III defines the roles and authority of federal courts. - AW
Plaintiffs therefore re-filed their (now consolidated) case in Wisconsin state court, where Article III of the U.S. Constitution does not apply. The trial court failed to apply the Wisconsin Court of Appeals’ binding precedent setting forth the application of state court “standing” principles in the data breach context, and instead wrongly restated and reapplied the reasoning of the federal courts and dismissed the case for lack of standing. Plaintiffs timely filed their notice of appeal.
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