JANE DOE v. BERNABEI & WACHTEL, PLLC
116 A.3d 1262
D.C.2015Background
- Appellant, a journalist at Phoenix Satellite Television (US), alleges her supervisor in 2012 touched her inappropriately; she recorded ~2 minutes on her iPhone showing limited visual detail and Chinese conversation.
- She shared the video with co-employees seeking help; Meixing Ren and others agreed to assist and Ren obtained a copy.
- Ren and other employees later sued the employer; they retained Bernabei & Wachtel (B&W), and appellant alleges Ren gave B&W the video.
- B&W and attorney Lynne Bernabei publicized the video and appellant’s name (press release, website interview, YouTube, TV), generating public attention; appellant alleges severe emotional distress.
- Appellant sued for four invasion-of-privacy torts (intrusion upon seclusion — not appealed; public disclosure of private facts; false light; misappropriation), negligent and intentional infliction of emotional distress; trial court dismissed all pleaded claims and appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Public disclosure of private facts — whether publication was highly offensive and not of legitimate public concern | The video and name publicity were offensive and not of public concern, meriting liability | Publication concerned an employment/EEOC matter connected to litigation and newsworthy context; video content was limited | Dismissed — plaintiff did not plead facts showing publicity would be highly offensive to a reasonable person or lacking legitimate public concern |
| False light — whether disclosures placed plaintiff in a false, offensive light | Publication (video + context) would cause viewers to misperceive and impute improper behavior | No affirmative false statement or representation was made; at most potential misperception by some viewers | Dismissed — no false statement/representation alleged; cannot base false-light on mere possible misperception |
| Misappropriation of name/likeness — whether defendants used plaintiff’s identity for their own benefit | Use of plaintiff’s name/visibility enhanced credibility of defendants’ lawsuit and benefitted them | Use was incidental and for legitimate purpose (to explain basis of litigation/news); no appropriation of commercial value | Dismissed — allegations were conclusory; incidental/legitimate use not actionable |
| Negligent & intentional infliction of emotional distress — duty and outrageous conduct elements | Publicizing video and name foreseeably caused severe emotional distress; attorney/firm owed duties not to harm plaintiff emotionally | No special relationship or duty to plaintiff (attorney owes no such duty here); publicity not extreme/outrageous as required for IIED | Dismissed — no duty supporting negligent claim; conduct not extreme/outrageous and allegations insufficient for IIED |
Key Cases Cited
- Klayman v. Segal, 783 A.2d 607 (D.C. 2001) (12(b)(6) standard and plausibility review under Twombly/Iqbal)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must state plausible claim to survive dismissal)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (plausibility standard for pleadings)
- Wolf v. Regardie, 553 A.2d 1213 (D.C. 1989) (identifies four invasion-of-privacy torts)
- Restatement (Second) of Torts principles applied via Vassiliades v. Garfinckel’s, 492 A.2d 580 (D.C. 1985) (privacy/appropriation analysis)
- Bean v. Gutierrez, 980 A.2d 1090 (D.C. 2009) (false-light requires a false statement or representation)
- Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C. 2011) (elements and duty analysis for negligent infliction of emotional distress)
- Harrison v. Washington Post Co., 391 A.2d 781 (D.C. 1978) (court determines whether published material is reasonably susceptible of alleged false meaning)
- Williams v. District of Columbia, 9 A.3d 484 (D.C. 2010) (IIED requires extreme and outrageous conduct)
- Budik v. Howard Univ. Hosp., 986 F. Supp. 2d 1 (D.D.C. 2013) (pleading requirements for appropriation/publicity claims)