The Payment Processing Network, the Malware and the Class Action Complaint

This post examines a recent opinion from a U.S. District Court Judge who sits in the U.S. District Court for the District of Minnesota:  In Re: SuperValu, Inc., Customer Data Security Breach Litigation, 2016 WL 81792 (2016) (“In re SuperValu, supra”).  She began by explaining that on

November 3, 2015, the undersigned United States District Judge heard oral argument on Defendants SuperValu, Inc. (`SuperValu’), AB Acquisition, LLC (`AB Acquisition’), and New Albertson's Inc.'s (`Albertson's’) (collectively, `Defendants’) Motion to Dismiss Plaintiffs' Consolidated Amended Class Action Complaint [Docket No. 33]. For the reasons set forth below, the Motion is granted.

In re SuperValu, supra.

The judge explained how, and why, the litigation arose:

In this multidistrict litigation case, sixteen named plaintiffs (`Plaintiffs’) allege they were harmed by hackers gaining access to and installing malicious software on the payment-processing network for payment card transactions at Defendants' retail grocery stores. Consolidated Am. Class Action Compl. (`Amended Complaint’) [Docket No. 28] ¶¶ 16–45. Plaintiffs allege the malicious software released and disclosed the Personal Identifying Information (`PII’) of Plaintiffs and Class Members who used their payment cards for purchases at the affected stores. Id. ¶ 36. The Amended Complaint states claims for negligence, negligence per se, breach of implied contract, unjust enrichment, and violations of various state consumer protection and data breach notification laws. Id. ¶¶ 13, 96–159. Plaintiffs assert their claims as class actions. Id. ¶¶ 83–95.

A. Defendants

Defendants own and operate retail grocery stores in the United States. Id. ¶¶ 2-3, 33-35. SuperValu controls the payment processing at its stores and also provides payment processing services for AB Acquisition and Albertson's stores. Id. ¶ 3.

B. Data Breach

On August 14, 2014, Defendants announced in press releases that from June 22, 2014 to July 17, 2014, hackers had gained unauthorized access to and installed malicious software on the portion of SuperValu's computer network that processes payment card transactions for Defendants' retail stores. Id. ¶¶ 4–5, 36. The intrusion resulted in potential theft of information embedded in the magnetic strip of payment cards for sales transacted at 209 SuperValu stores and 836 AB Acquisition stores. Id. ¶ 36. The PII embedded in the magnetic strip included cardholder names, account numbers, expiration dates, and PINS.Id. ¶¶ 1, 42. The press releases stated Defendants' offer of 12 months of complimentary consumer identity protection services to customers whose cards may have been affected by the data breach. Id. ¶ 45.

On September 29, 2014, Defendants announced in press releases that a second data breach occurred in late August or early September 2014. Id. ¶ 6. In this second instance, hackers installed different malware onto the portion of SuperValu's computer network that processes payment card transactions for some retail stores owned or operated by AB Acquisition and Albertson's (collectively referred to with the stores affected in the first breach as the `Affected Stores’). Id. ¶¶ 6, 44. Plaintiffs allege the two incidents (collectively referred to as the `Data Breach’) are related and stem from Defendants' same fundamental security failures. Id. ¶ 7.

C. Named Plaintiffs

Plaintiffs are consumers who shopped at Defendants' stores that were affected by the Data Breach. Id. ¶¶ 16–31. Plaintiffs provided their PII to Defendants when they used their payment cards at Defendants' Affected Stores. Id. ¶¶ 1, 16–31.

In re SuperValu, supra.

Next, the judge outlines the “alleged harm” inflicted upon the plaintiffs:

Although customer data at over 1,000 of Defendants' stores was accessed, the only alleged misuse of any Plaintiff's PII following the Data Breach is a single unauthorized charge on one Plaintiff's credit card. Plaintiff David Holmes alleges he experienced a fraudulent charge on his payment card after shopping at one of Defendants' Affected Stores and, upon noticing the fraudulent charge on his credit card statement, he immediately cancelled his credit card.  Id. ¶ 31. Holmes does not specify the amount or date of the fraudulent charge, nor does he allege the charge was unreimbursed or that he incurred bank fees or other monetary losses related to the charge. See id. No other Plaintiff alleges any unauthorized charges on their account, and no Plaintiff, including Holmes, has alleged experiencing identity theft or attempted identity theft after the Data Breach. See generally Am. Compl.

All sixteen of the named Plaintiffs allege that after Defendants announced the Data Breach, Plaintiffs spent time determining whether their cards were compromised and monitoring their account information to guard against potential fraud. Id. ¶¶ 16–31. One Plaintiff, Kenneth Hanff, further alleges he closed his checking account and opened a new one to prevent fraudulent purchases. Id. ¶ 18.

Based on these factual allegations, Plaintiffs allege that Defendants' wrongful conduct, the resulting Data Breach, and the potential disclosure of Plaintiffs' and other Class Members' PII have caused them to suffer harm including: (i) diminished value of their PII; (ii) untimely and inadequate notification of the Data Breach; (iii) increased risk of future losses, economic damages, and other harm; (iv) opportunity cost and value of lost time spent monitoring financial accounts and payment card accounts; (v) invasion of privacy and breach of the confidentiality of their PII by Defendants' unauthorized release and disclosure; and (vi) lost benefit of the bargain. Id. ¶¶ 32, 82.

In re SuperValu, supra.

The judge then went on to outline what had happened in the case to this point:

A total of four putative class actions brought by a total of twelve Plaintiffs were filed against Defendants in federal courts in Illinois, Minnesota, and Idaho. See, McPeak v. SuperValu, Inc., 3:14-cv-00899 (S.D. Ill., filed Aug. 18, 2014); Hanff v. SuperValu Inc., 14-cv-3252 (D. Minn., filed Aug. 25, 2014); Mertz v. SuperValu, Inc., 14-cv-04660 (D. Minn., filed Nov. 4, 2014); and Rocke v. SuperValu, Inc., 1:14-cv-00511 (D. Idaho, filed Nov. 26, 2014). In December 2014, the Judicial Panel on Multidistrict Litigation centralized the four complaints to this Court for coordinated pre-trial proceedings. See Transfer Order [Docket No. 1].

On June 26, 2015, Plaintiffs filed the Amended Complaint alleging six causes of action on behalf of sixteen named Plaintiffs. See generally Am. Compl. The sixteen named Plaintiffs consist of the twelve original Plaintiffs plus four new Plaintiffs. See id. ¶¶ 27–30. Defendants now move to dismiss the Amended

Complaint for lack of subject matter jurisdiction under Rule 12(b)(1). . . .

In re SuperValu, supra.

The opinion then explains that the Defendants argued that the Amended Complaint

must be dismissed under Rule 12(b)(1) for Plaintiffs' failure to allege facts establishing Article III standing, which is a prerequisite to subject matter jurisdiction. See Lujan v. Defenders of Wildlife,5 04 U.S. 555 (1992).

Defendants' Motion attacks the sufficiency of the pleadings and thus raises a facial, rather than factual, challenge to the Court's subject matter jurisdiction. See Stalley v. Catholic Health Initiatives, 509 F.3d 517 (U.S.Court of Appeals for the 8th Circuit 2007). In analyzing a facial challenge to jurisdiction, the Court applies the same standard of review as that in Rule 12 (b)(6) cases. Id. The Court `accepts as true all factual allegations in the complaint, giving no effect to conclusory allegations of law.’ Id. Plaintiffs must affirmatively and plausibly assert facts that suggest they have the right to jurisdiction, rather than facts that are merely consistent with that right. See id. . . . Determining whether a claim is plausible is a ‘”context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’ ” Hamilton v. Palm, 621 F.3d 816 (U.S. Court of Appeals for the 8th Circuit 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

In re SuperValu, supra.

The judge then took up the very important issue of “standing,” noting, initially, that

`Article III standing is a threshold question in every federal court case.’ United States v. One Lincoln Navigator 1998, 328 F.3d 1011 (U.S. Court of Appeals for the 8<sup>th</sup> Circuit 2003). The party invoking federal jurisdiction has the burden of establishing standing. standing. Lujan v. Defenders of Wildlife, supra. To meet this burden, a plaintiff must show: (1) an injury in fact; (2) a causal connection between the injury and the challenged conduct of the defendant; and (3) a likelihood that a favorable ruling will redress the alleged injury. Young Am. Corp. v. Affiliated Computer Servs. (ACS), Inc., 424 F.3d 840, (U.S. Court of Appeals for the 8<sup>th</sup> Circuit 2005) (citing Lujan v. Defenders of Wildlife, supra). Each element `must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.’ Lujan v. Defenders of Wildlife, supra.

To satisfy the injury in fact element of standing, an injury must be `concrete, particularized, and actual or imminent.’ Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138 (2013). When a party's alleged injury is based on future harm, standing exists if the threatened injury is `”certainly impending,”’ or there is a ‘substantial risk’ that the harm will occur.’ SusanB. Anthony List v. Driehaus, 134 S.Ct. 2334 (2014) (quoting Clapper v. Amnesty Int'l USA, supra). `[A]llegations of possible future injury are not sufficient.’ Clapper v. Amnesty Int'l USAm supra. . . .  

The requirement that a future injury be imminent `ensure[s] that the alleged injury is not too speculative for Article III purposes.’ Lujan v. Defenders of Wildlife, supra. Although imminence is a `somewhat elastic concept,’ it requires “that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all.’ Lujan v. Defenders of Wildlife, supra. Additionally, where a threatened injury hinges on speculation about the actions of third parties, standing is less likely to exist. See Clapper v. Amnesty Int'l USA, supra (expressing `reluctance to endorse standing theories that rest on speculation about the decisions of independent actors’); Clapper v. Amnesty Int'l USA, supra (`Plaintiffs cannot rely on speculation about the unfettered choices made by independent actors not before the court’) (internal quotations omitted).

In re SuperValu, supra.

The District Court Judge went on to point out that in a class action lawsuit,

`named plaintiffs who represent a class must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.’ ).`[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.’ O'Sheav. Littleton, 414 U.S. 488 (1974). . . .

The Amended Complaint alleges several forms of injury: (a) increased risk of future losses, economic damages and other harm; (b) opportunity cost and value of lost time spent monitoring financial accounts and payment card accounts; (c) diminished value of Plaintiffs' PII; (d) untimely and inadequate notification of the Data Breach; (e) invasion of privacy and breach of the confidentiality of Plaintiffs' PII due to Defendants' unauthorized release and disclosure; and (f) lost benefit of the bargain. See Am. Compl. ¶¶ 32, 82. Defendants argue Plaintiffs have failed to plausibly allege injury that is `concrete, particularized, and actual or imminent.’ Clapper v. Amnesty Int'l USA, supra.

In re SuperValu, supra.

She then parsed the “several forms of injury”, to determine the extent to which the Complaint in this case adequately alleged that the plaintiffs sustained injury sufficient to support their class action.  In re SuperValu, supra.  She began with the “increased risk of future harm”:

Plaintiffs allege they face a substantial risk of future harm because Defendants' failure to properly secure their computer network has allowed hackers to steal their PII for fraudulent use. See Am. Compl. ¶ 8 (`Defendants' security failures enabled the hackers to steal Consumer Plaintiffs' and the other Class members' PII . . . and put Consumer Plaintiffs' and the other Class members' financial information at serious, immediate, and ongoing risk.’); id. ¶ 9 (`On information and belief, illicit websites are selling the stolen payment card PII ‘dumps' to international card counterfeiters and fraudsters. . . .’). Defendants argue that Plaintiffs' allegations of future harm are actually only speculative claims of possible future injury, which are not sufficient to satisfy Article III standing.

In data security breach cases where plaintiffs' data has not been misused following the breach, the vast majority of courts have held that the risk of future identity theft or fraud is too speculative to constitute an injury in fact for purposes of Article III standing. See, e.g., Reilly v. Ceridian Corp., 664 F.3d 38 (U.S. Court of Appeals for the 3d Circuit 2011) (`Most courts have held such plaintiffs lack standing because the harm is too speculative. We agree with the holdings in those cases’); In re Zappos.com, Inc. Customer Data Sec. Breach Litig., 2015 WL 3466943 (U.S.District Court for the District of Nevada 2015) (`The majority of courts dealing with data-breach cases post-Clapper v. Amnesty Int'l USA, supra, have held that absent allegations of actual identity theft or other fraud, the increased risk of such harm alone is insufficient to satisfy Article III standing’). . . .

In re SuperValu, supra.

The judge went on to explain that the “speculative nature” of the threatened injury

stems from the numerous variables upon which the future harm depends, including whether the hacker: (1) read, copied, and understood [Plaintiffs'] personal information; (2) intends to commit future criminal acts by misusing the information; and (3) is able to use such information to the detriment of [Plaintiffs] by making unauthorized transactions in [Plaintiffs'] names.” Reilly v.Ceridian Corp., supra. . . .  In addition to the speculation of whether future harm from a data security breach will materialize, it cannot be known when such harm will occur. As more time lapses without the threatened injury actually occurring, the notion that the harm is imminent becomes less likely. In re Zappos.com, 2015 WL 3466943, at *7.

Here, the Data Breach of Defendants' computer network affected more than 1,000 retail grocery stores and occurred nearly one and a half years ago. Despite the large number of Affected Stores and the significant amount of time that has elapsed, the only facts asserted that any of Plaintiffs' PII has been misused is the single incident alleged by Plaintiff Holmes. Holmes noticed a single unauthorized charge (of an unspecified amount on an unspecified date) on his credit card statement after learning of the Data Breach. See Am. Compl. ¶ 31. Given the unfortunate frequency of credit card fraud, it is common sense to expect that in any group similar in size to the sixteen Plaintiffs and multitudes of potential class members who used their payment cards at one of the 1,000-plus Affected Stores would likely experience at least one instance of a fraudulent charge. Thus, the isolated single instance of an unauthorized charge is not indicative of data misuse that is fairly traceable to the Data Breach. See, e.g., In re Barnes & Noble, 2013 WL 4759588 (U.S. District Court for the Northern District of Illinois 2013) (`[I]t is not directly apparent that the fraudulent charge was in any way related to the security breach at Barnes & Noble’).

In re SuperValu, supra.

The judge therefore found that,

[b]ased on the absence of any other allegations that Plaintiffs' PII has been misused, the Court is left to speculate about whether the hackers who gained access to Defendants' payment processing network were able to capture or steal Plaintiffs' PII;  whether the hackers or other criminals will attempt to use the PII; and whether those attempts will be successful. See Reilly v. Ceridian Corp., supra. . . . This speculation prevents the Court from finding an increased risk of fraud and identity theft is `certainly impending’ or that there is a “substantial risk” the harm will occur. Clapper v. Amnesty International USA,133 S.Ct. 1138 (2013). . . .

The recent cases relied on by Plaintiffs do not compel a different result. Those cases included factual allegations of substantial data misuse which plausibly suggested that the hackers had succeeded in stealing the data and were willing and able to use it for future theft or fraud. See Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688 (U.S. Court of Appeals for the 7th Circuit 2015); In re AdobeSys., Inc. Privacy Litig., 66 F. Supp. 3d 1197 (U.S. District Court for the Northern District of California 2014). . . .

These cases alleging widespread data misuse contrast sharply with the allegations made in the instant case. Here, only one unauthorized credit card charge (of an unspecified date and amount) is alleged to have occurred in the fifteen-month time period following the Data Breach that affected over 1,000 of Defendants' stores. This singular incident from one named Plaintiff over the course of more than a year following the Data Breach is not sufficient to `nudge[ ]’ Plaintiffs' class claims of data misuse or imminent misuse `across the line from conceivable to plausible.’ Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Thus, Plaintiffs have failed to allege sufficient facts to show that future harm from the Data Breach is `certainly impending’ or that there is a `substantial risk that the harm will occur.’ Clapper v. Amnesty Int'l USA, supra.

In re SuperValu, supra.

Next, she took up the issue of “opportunity and mitigation costs”, explaining that the

Plaintiffs allege they have suffered harm based on mitigation costs, including time spent monitoring their account information to guard against potential fraud and, in the case of Plaintiff Hanff, costs and expenses associated with opening a new checking account. As the Supreme Court has recently explained, plaintiffs `cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.’ Clapper v. Amnesty Int'l USA, supra. `If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear.’ Id. In data breach cases, courts consistently hold that the cost to mitigate the risk of future harm does not constitute an injury in fact unless the future harm being mitigated against is itself imminent. See, e.g., In re Adobe, 66 F. Supp. 3d at 1217; In re Sci. Applications Int'l Corp. (SAIC) Backup Tape Data Theft Litig., 45 F. Supp. 3d 14 (U.S. District Court for the District of Columbia 2014); In re Zappos.com, 2015 WL 3466943, at *10;  Lewert, 2014 WL 7005097, at *3. Here, the risk of future harm being mitigated against is not imminent. Thus, the cost to mitigate the risk is not a sufficient injury in fact to confer Article III standing.

In re SuperValu, supra.

She then analyzed the next-to-last issue involved in this analysis, noting that the

Plaintiffs also allege that the value of their PII was lost or diminished as result of the Data Breach. Assuming without deciding that Plaintiffs' PII had monetary value, Plaintiffs have failed to allege any facts explaining how their PII became less valuable as a result of the Data Breach. Plaintiffs have not alleged that they tried to sell their PII but were not able to do so or were forced to accept a lower price. Therefore, Plaintiffs have not alleged an injury in fact under this theory. See In re Zappos.com, 2015 WL 3466943, at *3 (finding no injury in fact where plaintiffs had not alleged that the data breach had prevented them from selling their personal information at the price it was worth); In re SAIC, 45 F. Supp. 3d at 30 (same); Green, 2015 WL 2066531, at *5 n.59 (`Even if the Court were to find that personal information has an inherent value and the deprivation of such value is an injury sufficient to confer standing, Plaintiff has failed to allege facts indicating how the value of his personal information has decreased as a result of the Data Breach’).

In re SuperValu, supra.

Having resolved that issue, Judge then took up the plaintiffs’ claim that they were

harmed by Defendants' `untimely and inadequate notification of the Data Breach.’ Am. Compl. ¶ 82. Plaintiffs argue the delayed notification forced them to spend more time and money to: (1) refresh their recollections, contact their banks, and locate their credit card statements to determine whether they had been exposed to the risk of fraud created by the Data Breach; and (2) take additional steps to mitigate the risk of fraud. Plaintiffs thus contend they have standing to assert claims under state data breach notification laws that grant a private right of action. These assertions of increased mitigation costs due to delayed notification are not alleged in the Amended Complaint.

Even if they had been, the allegations would not have established Article III standing because as discussed above, the cost to mitigate the risk of future harm does not constitute an injury in fact unless the risk of future harm is imminent. `Plaintiffs must plead an injury beyond a statutory violation to meet the standing requirement of Article III.’ In re Barnes & Noble, 2013 WL 4759588, at *3. Therefore, `[e]ven assuming the statutes have been violated by the delay or inadequacy of [Defendants'] notification, breach of these statutes is insufficient to establish standing without any actual damages due to the breach.’ Id.

In re SuperValu, supra.

She then ruled on, the plaintiffs’ final two arguments, beginning with their claim that they

suffered an invasion of privacy and breach of confidentiality of their PII as a result of the Data Breach. However, Plaintiffs have not alleged facts showing that the loss of privacy and confidentiality resulted in a concrete injury. Therefore, this theory of standing also fails. See In re Zappos.com, 2015 WL 3466943, at *11 n.5 (finding no Article III standing under a loss of privacy theory because plaintiffs `failed to show how that loss amounts to a concrete and particularized injury’).

In re SuperValu, supra.

And, finally, she ruled on their argument that they were injured by the

lost benefit of their bargain. Am. Compl. ¶ 32. This theory is consistently rejected in data breach cases where plaintiffs have not alleged that the value of the goods or services they purchased was diminished as a result of the data breach. See, e.g., In re Zappos.com, 2015 WL 3466943, at *11 n.5 (rejecting benefit-of-bargain theory where plaintiffs had not explained how the data breach impacted the value of the goods they purchased, and further had not alleged facts showing that the price plaintiffs paid for such goods incorporated a sum that both parties understood would be allocated towards the protection of customer data); Fernandez v. Leidos, Inc., 2015 WL 5095893, at *9 (U.S. District Court for the Eastern District of California 2015) (finding no standing where plaintiff failed to allege facts from which a plausible inference could be drawn that the value of plaintiff's health care and insurance coverage had been diminished as a result of the data breach); Remijas v. Neiman Marcus Grp., LLC, supra (noting in dicta that the benefit-of-the-bargain theory was `problematic” and `dubious' where plaintiffs had not alleged any defect in any product they had purchased).

Here, Plaintiffs do not allege that the Data Breach diminished the value of the groceries or other goods they purchased from Defendants. Nor do Plaintiffs allege facts showing that the price they paid for the goods included an amount that both parties understood would be allocated toward protecting customer data. Thus, Plaintiffs have not alleged a cognizable injury based on the lost benefit of their bargain.

In re SuperValu, supra.

The Judge therefore held that

[b]ecause the Court concludes that Plaintiffs lack standing under Article III, the Court is without subject matter jurisdiction to determine whether the Amended Complaint states a claim for relief under Rule 12(b)(6). . . .

Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss Plaintiffs' Consolidated Amended Class Action Complaint . . . is GRANTED. The Consolidated Amended Class Action Complaint is dismissed without prejudice.

In re SuperValu, supra.

The Consulting Company, the Employee and Ransomware

This post examines a recent opinion from a U.S. District Court Judge who sits in the U.S. District Court for the Eastern District of Virginia:  Stephenson v. Nassif, 2015 WL 9450614 (2015).  The Judge begins his opinion by explaining that

[t]his seven-count state tort action between non-diverse parties was initially filed in state court but then timely removed by defendants pursuant to 28 U.S.C. §§ 1446(a) and 1442(a)(1), the so-called `federal officer’ removal statute. Plaintiff now seeks a remand on the ground that this removal basis does not apply in this case.

Because the issues raised have been fully briefed, the matter is now ripe for disposition. Oral argument is unnecessary and dispensed with as it would not aid the decisional process. For the reasons that follow, federal officer removal jurisdiction is appropriate, and the motion to remand must therefore be denied.

Stephenson v. Nassif, supra.

The judge then explains how the lawsuit arose and what it involved:

The pertinent facts as they are reflected in the Amended Complaint and the parties' briefs may be succinctly stated. Plaintiff Robert Stephenson, a Virginia resident, is a former employee of defendant Alliance Consulting Group International, LLC (`Alliance’), a small consulting company that performs classified work for the Department of Defense. At all relevant times, defendant Kenneth Nassif, a Virginia resident, served as the Managing Director of Alliance.

Plaintiff commenced his employment with Alliance in April 2014. Thereafter, on October 17, 2014, plaintiff approached Nassif and informed Nassif that another company, Synchron, had offered plaintiff employment. Plaintiff attempted, without success, to use this offer from Synchron as leverage for a pay raise at Alliance. When this attempt failed, plaintiff resigned from Alliance and joined Synchron. A few days later, on October 21, plaintiff received notice from Synchron's Facility Security Officer (`FSO’) that plaintiff had a `red flag’ on the Department of Defense Joint Personnel Adjudication System (`JPAS’) indicating a `pending incident report.’ Am. Comp. ¶ 14. In essence, JPAS is an electronic personnel database maintained by the Department of Defense for the purpose of collecting reports touching on a person's ability to use and to handle classified information. Although the parties do not dispute that the pending incident report that caused plaintiff's `red flag’ was filed by Nassif, the parties sharply dispute the motivation for filing the report.

In this respect, defendants allege that following plaintiff's resignation, plaintiff's work computer presented with a virus that encrypted various programs and data and required the payment of a ransom before decryption was possible. Even after paying the ransom, Alliance was able to recover only some of the affected programs and data. Because plaintiff and Nassif were the only Alliance employees working at this particular office at the time, Nassif concluded that plaintiff had installed the virus on the computer on or about October 17 before departing from Alliance. In light of this conclusion—which, if true, would constitute a violation of the Computer Fraud and Abuse Act, 18 U.S. Code § 1030 et seq.,  and the Virginia Computer Crimes Act, Va. Code §18.2-152.4—Nassif, who is Alliance's FSO, reported his suspicion to the Department of Defense in the form of a JPAS incident report and to the local police department, as well.

Plaintiff insists he is innocent in the computer virus affair and alleges that defendants made false reports with actual malice in retaliation for plaintiff's resignation from Alliance. Moreover, plaintiff alleges that because of defendants' false incident report, plaintiff has been unable to obtain the necessary security clearances to perform work in his field. In this regard, plaintiff alleges that Synchron placed plaintiff on administrative leave in March 2015. He also alleges that a new company that had extended an offer of employment to him in June 2015 rescinded the offer because of the incident report on plaintiff's record.

Stephenson v. Nassif, supra.

The judge goes on to explain that Stephenson

filed the instant action in the Circuit Court for the City of Alexandria, Virginia, on October 19, 2015. Plaintiff's Amended Complaint alleges seven state law causes of action:

(i) slander, libel, and defamation stemming from the filing of the JPAS incident report;

(ii) slander, libel, and defamation stemming from the filing of the police report;

(iii) tortious interference with contract;

(iv) negligence in filing the JPAS incident report;

(v) negligence in filing the police report;

(vi) intentional infliction of emotional distress through filing the JPAS incident report; and

(vii) intentional infliction of emotional distress through filing the police report.

Stephenson v. Nassif, supra.

The opinion goes on to explain that,

[o]n October 28, 2015, defendants filed a timely notice of removal claiming federal jurisdiction under §1442(a)(1). Specifically, defendants contend that the submission of the JPAS incident report was done pursuant to a mandatory federal requirement that affords absolute immunity from state tort liability, thus warranting federal jurisdiction. Plaintiff, in turn, filed a motion to remand. Shortly after the briefing on the motion was submitted, the parties consented to the jurisdiction of a magistrate judge. Referral to the magistrate judge was deferred pending resolution of the jurisdictional question presented in the motion to remand, namely whether defendants may properly avail themselves of federal officer jurisdiction under § 1442(a)(1).

Stephenson v. Nassif, supra.

The District Court Judge then began his analysis of that issue, explaining, initially, that

[i]n general, the firmly established `well-pleaded complaint’ rule precludes using a federal defense as a basis for federal question jurisdiction for removal purposes. See Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). Yet, § 1442(a)(1) creates an exception to this rule. See Mesa v. California, 489 U.S. 121 (1989) (`[Section 1442(a)] merely serves to overcome the “well-pleaded complaint” rule which would otherwise preclude removal even if a federal defense were alleged’). In relevant part, § 1442(a)(1) provides that `[a] civil action . . . that is commenced in a State court’ may be removed to federal court if the action is against `any officer (or any person acting under that officer) of the United States . . . for or relating to any act under color of such office.’  Importantly, by its plain language § 1442(a)(1) provides for the removal of an entire `civil action,’ so removal is not limited only to specific qualifying claims. Accord 14C Wright & Miller, Federal Practice and Procedure § 3726 at 275 (2009) (`Because Section 1442(a)(1) authorizes removal of the entire case even if only one of the controversies it raises involves a federal officer or agency, the section creates a species of statutorily-mandated supplemental subject-matter jurisdiction’).

In a leading case on the scope and meaning of § 1442(a)(1), the Supreme Court in Mesa elucidated what the federal officer removal statute requires. Courts in this district have uniformly concluded that the Supreme Court's Mesa decision establishes four necessary elements that a defendant must show in order to qualify for removal under § 1442(a)(1): (i) that the defendant is a `person’ as used in the statute, (ii) that the defendant acted pursuant to a federal officer's directions, (iii) a causal nexus between the defendant's actions under color of a federal office and the plaintiff's claims, and (iv) the existence of a colorable federal defense. Although plaintiff does not contest that defendants are `persons’ within the meaning of § 1442(a)(1), the remaining requirements for removal are in dispute.

Stephenson v. Nassif, supra.

The District Court Judge then began is analysis of the § 1442(a)(1) factors, beginning with the second factor, e.g., that the defendant have acted pursuant to a federal officer’s directions. Stephenson v. Nassif, supra. The judge found that this requirement

is plainly met. The Supreme Court has made it clear that § 1442(a)(1) must be `liberally construed.’ Watson v. Philip Morris Cos., Inc., 551 U.S. 142 (2007). In light of this principle, the Supreme Court has noted that the `acting under’ language in § 1442(a)(1) is `broad’ but `not limitless.’ Watson v. Philip Morris Cos., Inc., supra. Thus, in Watson the Supreme Court held that mere compliance with detailed federal regulations as part of `the usual regulator/regulated relationship” does not give rise to federal officer jurisdiction.’ . . .  Watson v. Philip Morris Cos., Inc., supra. This is so, the Supreme Court reasoned, because `acting under’ must involve `an effort to assist, or to help carry out, the duties or tasks of the federal superior.’ Watson v. Philip Morris Cos., Inc., supra (emphasis in original).

Moreover, the Supreme Court observed that the purpose of § 1442(a)(1) is to overcome the threat of state-court prejudice against federal activity; mere compliance with federal law does not ordinarily create a risk of such prejudice or of subjection to a state-court lawsuit `likely to disable federal officials from taking necessary action designed to enforce federal law.’ Watson v. Philip Morris Cos., Inc., supra. In light of Watson, it is pellucid that the broad language of § 1442(a)(1) must be applied in a manner that effectuates the central congressional policy of securing a federal forum for persons who assist the federal government in a manner that risks the imposition of state law liability. The principles of Watson, applied here, point persuasively to the conclusion that defendant Alliance was `acting under’ a federal officer when it submitted the JPAS incident report concerning plaintiff.

Defendants contend that the submission of the JPAS incident report was done pursuant to the Department of Defense's NISPOM, which was issued by the Secretary of Defense pursuant to presidential executive order.  NISPOM imposes certain security obligations on contractors that receive access to classified material. As relevant here, NISPOM § 1-302(a) provides that `[c]ontractors shall report adverse information coming to their attention concerning any of their cleared employees’  In defendants' view, this rule represents a specific and mandatory instruction by the Department of Defense, and compliance with NISPOM constitutes `acting under’ a federal officer, namely the Secretary of Defense.

Plaintiff responds by arguing that the relevant NISPOM reporting regulation is not sufficiently detailed to rise to the level of an instruction from a federal officer. According to plaintiff, Department of Defense guidance as to what constitutes `adverse information’ is so broad that the NISPOM regulation at issue leaves contractors with `considerable discretion.’ P. Reply at 6. The remainder of plaintiff s objection that defendants were not `acting under’ a federal officer is essentially a challenge to defendants' evidence. P. Reply at 6-11. That is, plaintiff argues that defendants did not actually have `adverse information’ about plaintiff and therefore were not acting pursuant to NISPOM § 1-302(a).

Stephenson v. Nassif, supra.

The District Court Judge went on to explain that

[p]laintiff's arguments fail for at least three reasons. First, contrary to plaintiff's characterization, the broad definition of `adverse information’ does not afford overly substantial discretion. To be sure, the Department of Defense defines `adverse information’ broadly as `any information that negatively reflects on the integrity or character of a cleared employee, that suggests that his or her ability to safeguard classified information clearly may be impaired, or that his or her access to classified information clearly may be in the interest of national security.’  But the plain language of NISPOM § 1-302(a) is mandatory, and by defining `adverse information’ broadly the Department of Defense creates a mandatory duty to report broadly. There is no discretion not to report, and a contractor's failure to report something that falls within the broad reach of `adverse information’ is not an exercise of discretion but a breach of the mandatory reporting obligation.

Second, in the absence of federal contracting, the Department of Defense would need to carry out all activities relating to the protection of classified information internally. In doing so, the Department of Defense would surely monitor its own employees for security risks. By requiring contractors to engage in the same monitoring in which the Department of Defense would engage in the absence of contracting, NISPOM § 1-302(a) is plainly a means by which contractors are expected `to help carry out’ a federal function. Watson v. Philip Morris Cos., Inc., supra.

Third, plaintiff's evidentiary argument—that defendants did not actually possess `adverse information’—illustrates precisely why federal officer jurisdiction is appropriate here. If the basis for a federal contractor's decision to make a mandatory report under NISPOM § 1-302(a) is going to be open to attack on state tort law grounds, then in the absence of a federal forum the contractors subject to NISPOM might elect not to report in the first instance, which would `disable federal officials from taking necessary action’ to safeguard classified information. Watson v. Philip Morris Cos., Inc., Accordingly, application of federal officer jurisdiction to the dispute at hand is consistent with the congressional policy underlying § 1442(a)(1), namely protecting the execution of federal functions in the states by ensuring that persons engaged in federal functions will have access to a federal forum in which to raise federal defenses. Plaintiff's argument essentially creates a defamation exception to federal officer removal by requiring a defendant to prove the truth of his statements before removal is appropriate. There is no basis to conclude that § 1442(a)(1) contemplates or allows such an exception.

In sum, because compliance with NISPOM § 1-302(a) is mandatory, assists with the important federal task of protecting classified information, and invites the risk of state tort litigation that might disable the exercise of federal functions (as this lawsuit aptly illustrates), defendants' JPAS incident report falls within § 1442(a)(1)'s broad `acting under’ language.

Stephenson v. Nassif, supra.

The judge then took up

whether there is a causal nexus between the defendants' actions under color of a federal office and the plaintiff's claims. Counts I, IV, and VI specifically cite the filing of the JPAS incident report as the basis for defendants' tort liability, and Count III includes the JPAS incident report as one basis for liability. [Amended Complaint] ¶¶ 35, 53, 60, 75.

Moreover, plaintiff's alleged damages are based in significant part on lost income resulting from an inability to secure work in plaintiff's field because of the JPAS incident report. See, e.g., Am. Comp. ¶ 77. Thus, the causal nexus between defendants' compliance with NISPOM § 1-302(a) and the claims under Counts I, III, IV, and VI is clear. And because the entire civil action is removable, that Counts II, V, and VII are based on the filing of a police report as opposed to the filing of the JPAS incident report cannot defeat removal. Thus, a sufficient causal nexus exists between plaintiff's allegations and defendants' actions under color of federal office.

Stephenson v. Nassif, supra.

And, then, he took up the remaining issue, noting that

[f]inally, the analysis concludes by determining whether defendants have a colorable federal defense. Defendants contend that the submission of the JPAS incident report is absolutely privileged. In support of this argument, defendants rely on the Fourth Circuit's decision in Becker v. Philco Corp., 372 F.2d 771 (U.S. Court of Appeals for the 4th Circuit 1967), which held that `an action for libel will not lie . . . against a private party fulfilling its governmentally imposed duty to inform.’ In essence, Becker held that where a government contractor `has no discretion and is mandatorily ordered” to report to the government “each suspected compromise of classified information,’ that contractor's reports are absolutely privileged. Becker v. Philco Corp., supra. And, defendants note, Becker continues to be applied with respect to incident reports made pursuant to NISPOM § 1-302.

Plaintiff, in turn, argues that Becker is distinguishable. Specifically, plaintiff argues that Becker does not provide immunity for knowingly false reports, as alleged here. Moreover, whereas Becker dealt with a situation in which a contractor reported to the government information that the contractor had received from a third party, here the contractor was the initial source of the reported information. Finally, plaintiff cites Ford v. Torres, 2009 WL 537563 (U.S. District Court for the Eastern District of Virginia 2009), for the proposition that an individual employee who causes a government contractor company to make a false report does not receive immunity under Becker.

Stephenson v. Nassif, supra.  The judge went on to explain that

Plaintiff's argument misses the mark. As the Fourth Circuit has explained, a defendant seeking removal under § 1442(a)(1) `need not prove that he will actually prevail on his federal immunity defense in order to obtain removal; indeed, one of the most important reasons for removal is to have the validity of the [federal] defense of official immunity tried in a federal court.’ Jamison v. Wiley, 14 F.3d 222 (U.S. Court of Appeals for the Fourth Circuit 1994) (internal quotations omitted). Plaintiff's jurisdictional argument seeks to force defendants to prove that they will prevail on the merits of their defense. That is, plaintiff's view is essentially that defendants must prove that the incident report was not false and that Becker applies to the slightly distinguished facts of the instant case. This argument is inconsistent with what Mesa requires, which is nothing more than a `colorable’ federal defense. Mesa v. California, supra. Here, defendants seek simply `to have the validity of [their federal] defense of official immunity tried in a federal court’ by laying out a factual and (entirely plausible) legal basis for the application of the immunity recognized in the Becker decision.  Jamison v. Wiley, supra. No doubt, this qualifies as a colorable federal defense.

Nor does plaintiff's reliance on Ford alter the conclusion reached here that defendants have a colorable federal defense. Although Ford concluded that an individual employee could not receive absolute immunity under Becker, the Ford decision is not binding on other district courts, which are free to conclude otherwise based on an independent analysis of the caselaw. Moreover, Ford is distinguishable on its facts from the instant case such that a different outcome is not outside the realm of possibility. In Ford, which was decided on a motion to dismiss, the individual employee who was denied immunity allegedly instructed the company's FSO to file a false incident report with the government. Here, the individual defendant seeking immunity under Becker is the FSO, and it is entirely possible (although neither reached nor decided) that the FSO is subject to mandatory requirements that would justify the application of absolute immunity. Simply put, it may not be clear whether defendant Nassif qualifies for an immunity defense until further factual development or briefing occurs, but for purposes of the motion to remand his federal defense is at least colorable. And, of course, even if Nassif s federal defense were not colorable the result would remain unchanged, as Alliance's colorable federal defense is sufficient to support removal of the entire civil action.

Stephenson v. Nassif, supra. 

The District Court Judge therefore held that

[f]or the foregoing reasons, it is clear that at the very least (i) defendant Alliance acted under a federal officer, (ii) there is a causal nexus between plaintiff's claims and Alliance's conduct under color of federal office, and (iii) Alliance has a colorable federal defense. Consistent with Supreme Court precedent and the plain language of § 1442(a)(1), this is sufficient to support removal of the instant civil action. Accordingly, plaintiff's motion to remand must be denied, and the action will be referred to the magistrate judge for further proceedings, per the parties' agreement.

An appropriate order will issue.

Stephenson v. Nassif, supra. 

The Juror, the Victim's Stepmother and "Liking" a Social Networking Post

This post examines an opinion from the Supreme Court of Iowa:  State v. Webster, 865 N.W.2d 223 (2015).  As courts usually do, the Supreme Court begins the opinion by explaining how, and why, the prosecution at issue arose:

Tyler Webster shot and killed Buddy Frisbie. The State charged Webster with first-degree murder. A jury returned a guilty verdict of second-degree murder. Webster filed a posttrial motion seeking to vacate the conviction on grounds of juror misconduct. Webster also challenged several evidentiary rulings in which the district court refused to admit evidence that reflected poorly on Frisbie. The district court denied Webster's posttrial motion and entered judgment. Webster appealed.

On appeal, Webster claimed his conviction should be vacated because of juror misconduct and juror bias. Specifically, Webster claimed a juror failed to disclose that her daughter was a good friend of Frisbie's stepsister. Webster further claimed the same juror engaged in discussions about the case with third parties, posted comments on Facebook, and `liked’ a comment posted by Frisbie's stepmother on Facebook related to the trial. . . .

State v. Webster, supra.

The Supreme Court then outlined the events that led to Webster’s conviction:

Webster and Frisbie were long-time friends. On August 25, 2012, Webster, Frisbie, a mutual friend Doug Knight, and Frisbie's girlfriend Shelby Hall attended a party together. They decided to go fishing. Frisbie and Hall went to Frisbie's trailer to retrieve fishing gear, and Webster joined them in the trailer as it began to rain. Knight went to his own trailer nearby.

In Frisbie's trailer, Webster claimed he believed Frisbie was sexually assaulting Hall. He left the trailer, went to his truck, grabbed a gun, came back to the trailer, and shot Frisbie in the face at close range to avoid hitting Hall, whose body partially covered Frisbie.

Hall ran to Knight's trailer and explained what had just happened. Knight retrieved a shotgun, and when Webster approached the trailer with a gun in his hand, Knight told him to put the gun down. Webster complied and Knight called 911. Webster admitted to the dispatcher that he had just shot Frisbie. Dispatch instructed Webster to walk to the end of the driveway, lie on his stomach, and wait for law enforcement to arrive. Law enforcement arrived and arrested Webster without incident.

The State charged Webster with first-degree murder. . . . During the week-long trial, the court reminded the jury of its `long admonition’ previously given. The long admonition, however, is not part of the record. The first admonition found in the record occurred before the noon recess during the first day of trial. This admonition stated:

`And so at this time I will again remind you of that long admonition that I previously read to you about you don't talk between yourselves, you don't talk with anyone else, you don't listen or read any news reports. This matter is not yet submitted so you don't communicate with anyone or each other about what you have heard so far, and you keep an open mind and you don't come to any conclusions.’

The court gave a similar rendition of this admonition numerous times throughout the trial.

State v. Webster, supra.

The opinion goes on to explain that,

[a]fter the defense rested, and outside the presence of the jury, the district court alerted the parties to an issue that had arisen in the case. The district court told the parties that the clerk of court and the court attendant had advised the court they had received information that one of the jurors had stated prior to being seated that she would probably never be picked for the jury because `she knew the family.’ The district court stated the court attendant was concerned because she had sat through voir dire and did not recall the juror saying anything about her connection to either family.

The court then conducted an in camera hearing and the juror was questioned. The juror told the court that her twenty-seven-year-old daughter was friends with Frisbie's half-sister or stepsister as they had attended high school together. The juror stated she did not know Frisbie, and other than telling her daughter she had jury duty, she did not discuss the case with her. She also stated she was friendly with Frisbie's parents, as they worked in the courthouse and she also worked in the courthouse. She also noted she thought she knew a family member of Webster's wife. Webster's attorney noted the juror's familiarity with these individuals commenting, `I understand this is a small town.’ When asked if the relationships would cause her to be biased, the juror stated she would not be biased and would rely upon her notes in making her decision.

The juror further stated she was a Facebook user and knew about the shooting the night of the incident through Facebook. She stated that while she had been on Facebook during the trial playing games, she had `not read anybody else's postings, because [she] kn[ew] if they posted something [she] didn't want to know about it.’ At the conclusion of the in camera examination of the juror, the defense declined to challenge the juror for cause.

State v. Webster, supra.

The Supreme Court went on to explain that 

[t]he next day, the parties completed closing arguments and the case was submitted to the jury. In its jury instructions, the district court stated, in relevant part:

`You may not communicate about this case before reaching your verdict. This includes cell phones, and electronic media such as text messages, Facebook, MySpace, LinkedIn, YouTube, Twitter, email, etc. Do not do any research or make any investigation about this case on your own. Also, do not research any information about this case, the law, or the people involved, including the parties, the witnesses, the lawyers, or the judge. This includes using the Internet to research events or people referenced at trial.’

After being instructed, the jury deliberated and returned a verdict finding Webster guilty of murder in the second degree in violation of Iowa Code sections 707.1 and 707.3 (2013).

State v. Webster, supra.

After he was convicted, Webster filed a motion for a new trial which was, in part, “based upon juror misconduct or juror bias”.  State v. Webster, supra. The Supreme Court explained that Webster

explicitly claimed in his . . . motion that he was denied a fair trial based on juror misconduct, but did not advance a separate argument based on juror bias. Juror misconduct and juror bias are related, overlapping, but analytically distinct concepts. Juror misconduct ordinarily relates to actions of a juror, often contrary to the court's instructions or admonitions, which impair the integrity of the fact-finding process at trial. See generally Jimmie E. Tinsley, Jury Misconduct Warranting New Trial, 24 Am. Jur. Proof of Facts §§ 35–38. . . . Typical acts of misconduct include communication with others outside the jury about the case, independently investigating the crime or accident scenes outside of judicial oversight, or engaging in independent research about questions of law or fact. See id. Juror bias, on the other hand, focuses on the ability of a juror to impartially consider questions raised at trial. See 50A C.J.S. Juries § 369, at 495–97 (2008). A biased juror is simply unable to come to a fair decision in a case based upon the facts and law presented at trial. See id. A juror may be biased without engaging in any kind of misconduct. Conversely, an impartial and fair-minded juror may nonetheless engage in juror misconduct. Jurisdictions have developed a variety of approaches to deal with questions of misconduct and bias. . . .

State v. Webster, supra.

The court also explained that, in arguing he was entitled to a new trial for juror misconduct and juror bias, Webster

seems to apply the three-part substantive standard for granting a new trial based on juror misconduct articulated in State v. Cullen, 357 N.W.2d 24, 27 (Iowa 1984). In Cullen, we stated that in order to be entitled to a new trial based upon juror misconduct, the

(1) evidence from the jurors must consist only of objective facts as to what actually occurred in or out of the jury room bearing on misconduct; (2) the acts or statements complained of must exceed tolerable bounds of jury deliberation; and (3) it must appear the misconduct was calculated to, and with reasonable probability did, influence the verdict.

Id. . . .

Webster claims the juror committed misconduct by failing to fully disclose her relationship to the Frisbie family during voir dire and at the in camera examination during trial [and] by violating the admonitions of the district court by `liking’ a comment of the victim's stepmother on Facebook. . . .

Although packaged as a claim of juror misconduct, Webster also asserts he was denied a fair trial due to impermissible juror bias. . . . According to Webster, the juror saw the Frisbie family as a `good family,’ recognized that she would not be seated as a juror because she knew the family, was not forthcoming during voir dire about her relationship with the Frisbies, and was evasive about her relationship with the Frisbies when questioned in camera in order to remain on the jury. Further, Webster contends, the juror showed her true colors after the trial when she smugly told a friend of Frisbie's stepmother that she was never questioned about her relationship with the Frisbies and commented on Frisbie's stepmother's Facebook post shortly after the verdict that the juror wished there could have been a first-degree murder verdict. . . .

State v. Webster, supra.

The opinion goes on to explain that

[o]n the question of the asserted misconduct arising from the juror's liking a comment of the victim's stepmother on Facebook during trial, the State contends the juror's conduct was of little importance. The comment which she liked on Facebook was a declaration from the stepmother in the midst of trial, `Give me strength.’ According to the State, the juror's statement that she liked the `Give me strength’ statement does not relate to the merits of the case and had no relationship to the guilt or innocence of the defendant. According to the State, the juror did not think the inconsequential act of clicking a computer button liking the stepmother's status amounted to a communication in violation of the district court's admonition.

State v. Webster, supra.

After reviewing the arguments from both sides, the Supreme Court took up the issue of possible juror bias (along with juror misconduct), noting that

[o]f particular concern . . . is a juror who declines to truthfully answer a voir dire question in order to avoid being removed from the jury panel. When a juror conceals information in voir dire in order to avoid either a strike for cause or a preemptory strike, it deprives the accused `of the ability to determine whether [the juror] harbored any prejudices or biases against [the accused] or in favor of the State.’  State v. Dellinger, 696 S.E.2d 38 (Supreme Court of Appeals of West Virginia 2010). In addition, deliberate lying by a juror in voir dire may strongly suggest the kind of actual bias that may require disqualification of that juror and, if the juror participates in jury deliberation, may require a new trial. . . .

Here, however, there is no evidence the juror provided false testimony during voir dire. Of course, the fact that voir dire was not reported poses a difficult evidentiary problem for Webster. The parties seem to agree, however, that during voir dire, one prospective juror volunteered she had relationships with the parties. The parties further agree that the juror was not specifically asked about her relationship with the Frisbies. We do not think the failure to volunteer an answer to an unasked question amounts to juror misconduct. . . .

Further, in the in camera examination, the juror stated that she knew the Frisbies in passing, that her daughter was a friend of Frisbie's stepsister, that she knew Frisbie's parents well enough to say `Hi’ to them, and that she was Facebook friends with Frisbie's stepmother.  At this point, the door was open to further explore these issues. . . . However, Webster's lawyer elected not to thoroughly explore the nature of the relationship, including the intriguing mention that she and Frisbie's stepmother were friends on Facebook. Instead, Webster's counsel asked a series of questions that seemed more designed to rehabilitate the juror than challenge her. At the conclusion of the hearing, Webster did not challenge the juror for cause. Based on the record before us, we cannot conclude the juror engaged in misconduct by lying during the in camera hearing.

In short, we are not faced with a juror who lied during voir dire or during an in camera hearing in order to avoid the risk of being disqualified. Thus, an important feature present in many actual disqualification cases is lacking here. Further, both at the in camera hearing and in testimony related to the combined motion for new trial and arrest of judgment, the juror emphatically emphasized that she was capable of, and did in fact, base her verdict solely on the evidence. . . . Of course, the juror's testimony may be self-serving, but the district court found her testimony credible. The mere fact a juror has knowledge of parties or witnesses does not indicate actual bias or require juror disqualification. . . . The district court explained to the parties prior to the in camera hearing that court personnel had advised him the juror had stated the fact that she knew the victim's family would disqualify her from jury duty. As the above cases demonstrate, if the juror in fact had that belief, it would have been a mistake of law.

State v. Webster, supra.

The court then pointed out that this

brings us to the most troublesome point in the case. There is some suggestion the juror, after the in camera inspection but prior to the verdict, clicked `like’ on a Facebook comment by the victim's stepmother which stated, `Give me strength.’ A juror who directly violates the admonitions of the court and communicates with the mother of a crime victim about a case certainly raises questions about her ability to be an impartial juror. This action occurred after voir dire and apparently after the in camera hearing. Thus, Webster has not waived his bias challenge based upon this event, which would not have been uncovered through diligent use of ordinary trial processes.

However, the record here does not disclose the court's initial admonition or when the juror clicked `like.’ In any event, while the short form admonition to the jury in the record indicated that the juror should not communicate with parties and witnesses about the case, the juror apparently thought (erroneously) that merely clicking `like’ on Facebook was not a `communication.’ Moreover, the communication did not relate to the guilt or innocence of the accused, but only showed a degree of empathy for a grieving stepmother who lost her son. A juror who does not have empathy for a grieving mother whose son was a homicide victim would be awfully cold hearted. If we disqualified jurors because they empathized with the family of crime victims, we would have no jurors. . . . We find no abuse of discretion on this point.

Notwithstanding our resolution of the issues in this appeal, we do not approve of the juror's conduct in this case. While the click of the mouse does not require reversal of Webster's criminal conviction, it is troublesome nevertheless. While it did not occur in this case, a single click of the mouse on Facebook can trigger cascading responses. Further, messages posted on Facebook may be viewed by many persons, generating a perception of a miscarriage of justice.

In the future our district courts would do well to recognize that in this day and age, our jurors are part of the new electronic world. This can pose a problem in our jury trials. We have held that the click of the mouse in this case was not misconduct sufficient to require a new trial under the three-part Cullen test. We have also held that the click of the mouse was insufficient to establish that the juror was actually biased in light of the record developed at the posttrial hearing. The click of the mouse did, however, show poor judgment.

State v. Webster, supra.

The court also noted that, since “there is a growing body of highly publicized cases showing the risk posed by jurors engaged in electronic and social media activity”, courts should be proactive, in jury cases, and take steps intended to alleviate the risk.   State v. Webster, supra.  It went on to explain that

authorities suggest courts should frequently, as a matter of course, instruct jurors not to use social media to communicate about the trial and clearly explain what constitutes communication. . . . The admonition should be given early and often, beginning at the time jurors are sworn and repeated periodically as the trial progresses. While there are many sources of potential admonitions, the United States Judicial Conference Committee on Court Administration and Case Management has recommended that federal district courts use an admonition related to electronic media that may provide a guide to Iowa judges. See Judicial Conference Comm. on Ct. Admin. & Case Mgmt., U.S. Cts., Proposed Model Jury Instructions: The Use of Electronic Technology to Conduct Research on or Communicate about a Case (2012), available at www.uscourts. gov/file/3159/download?token=3s0ovosm; see also U.S. Cts., Revised Jury Instructions Hope to Deter Juror Use of Social Media During Trial (2012), available atwww.uscourts. gov/news/2012/08/21/revised-jury-instructions-hope-deter-juror-use-social-media-during-trial. The instruction states, in part:

`I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone at any time about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, including Facebook, Google+, My Space, LinkedIn, or YouTube. You may not use any similar technology of social media, even if I have not specifically mentioned it here. I expect you will inform me as soon as you become aware of another juror's violation of these instructions.’

Proposed Model Jury Instructions. The instructions also state this admonition `should be provided to jurors before trial, at the close of a case, at the end of each day before jurors return home, and other times, as appropriate.’ Id. A trial court providing jurors with admonitions such as those in the federal model will minimize the risk of unnecessary and costly mistrials due to the failure of jurors to clearly understand their obligations in the electronic world.

State v. Webster, supra.

For the reasons outlined above, along with other factors, the Supreme Court upheld Webster’s conviction. State v. Webster, supra.