[1.] First, the facts from an earlier decision in Doe v. Deutsche Lufthansa AG:
John Doe and Robert Roe constitute a gay partnership that has endured for thirty-three years, described as committed yet discreet, and they sealed their union with a California marriage in 2013. Doe is a United States citizen and a resident of California who spends the majority of each year in Riyadh, Saudi Arabia, where he serves as in-house counsel for a corporation. Roe, a Saudi national, lived full-time in Riyadh up until May 2021 and pursued real estate investments as part of his work. Since 1989, the couple shared life in Saudi Arabia but were compelled to conceal their relationship and sexual orientation because Saudi law has treated homosexuality as a criminal offense with severe penalties, up to capital punishment in some circumstances. “Living with extreme caution, they managed to keep their 33-year companionship hidden from the government, outsiders, employers, friends, and family alike.”
In 2021, while traveling on Lufthansa from Riyadh to San Francisco, the couple, for reasons tied to U.S. travel restrictions during the COVID-19 era, disclosed to a senior Lufthansa official in Riyadh Airport (named Jamshed) that they had a marriage recognized under U.S. law. The claim is that the official disclosed this information publicly; the couple also allege that details about their marriage were transmitted to Saudi authorities.
[2.] Now, Judge Susan Illston's analysis from this past Friday as to why California law should apply to the case:
Saudi Arabian law is rooted in religious Sharia principles and treats homosexuality as a criminal act with penalties ranging from imprisonment to the death penalty; consequently, plaintiffs would have no remedy under Saudi law. By contrast, California upholds a robust public policy in favor of gay rights and marriage equality, and it prohibits discrimination based on sexual orientation, a stance reflected in the California Constitution, numerous statutes, and rulings of the California Supreme Court.
Lufthansa contends that Saudi Arabia has a legitimate interest in applying its law to an incident occurring within its territory, noting that Doe was then a Saudi citizen and permanent resident, and Roe remained a Saudi permanent resident. The airline also argues that Saudi Arabia has an interest in enforcing its own criminal laws and norms within its sovereign borders.
Plaintiffs respond that Saudi Arabia does not have a legitimate interest in applying its law, and even if a genuine conflict exists, there is a narrow public policy exception to the comity doctrine that can apply here. That exception bars the application of a foreign state's law when doing so would contravene California's public policy, and is so repugnant to societal morals and the general interests of citizens as to be prejudicial. Wong v. Tenneco, Inc. (Cal. 1985).
[A]ssuming Saudi Arabia has a valid interest in applying its laws, the present case falls within the narrow public policy exception to comity as articulated in Wong v. Tenneco. The application of Saudi Arabian law would contravene California's strong public policies supporting gay rights and anti-discrimination based on sexual orientation, and would infringe California's strong policy recognizing the right to privacy.
[3.] The court then allowed the Does' public disclosure tort claim to proceed:
“[T]he public disclosure tort comprises four elements: (1) an actual public disclosure (2) of a private fact (3) that would be offensive and objectionable to a reasonable person and (4) that is not of legitimate public concern.”
The Complaint contends that the plaintiffs went to great lengths to keep their relationship and marriage private, that they disclosed their marriage to Jamshed to meet U.S. immigration requirements, that Jamshed announced their marriage loudly in a crowded airport, and that Lufthansa disclosed their relationship to the Saudi government, among other things.
Lufthansa asserts that the plaintiffs fail to plead a claim because their marriage is a public record in California. Citing Cox Broadcasting Corp. v. Cohn (1975), Lufthansa argues that the First Amendment bars recovery for the publication of facts drawn from public records. Yet the court noted that Cox involved a journalist who learned of the deceased victim's name from public court records; here, Jamshed is not a journalist, did not obtain marital details from public records, and the alleged disclosure did not yield a “public benefit.”
Finally, Lufthansa argues that the plaintiffs fail to allege that the disclosure was offensive to a reasonable person because Roe was reportedly required to disclose his marital status to Lufthansa and to “customs authorities” to board a transatlantic flight. The complaint, however, does not allege that Roe was required to reveal his status to customs officers, but rather that the disclosure was made by Lufthansa to confirm the couple's marital status for U.S. entry purposes. The plaintiffs also allege that Roe quietly told Jamshed that they were married, and that Jamshed reacted in a hostile manner, publicly disparaging and repeatedly questioning the couple about their relationship on account of their sexual orientation.
The plaintiffs further allege, on information and belief, that Lufthansa provided the Saudis with the couple's private information notwithstanding Lufthansa's knowledge of the likely consequences. Those allegations are sufficient on a pleading level, and whether Lufthansa and Jamshed's conduct was offensive to a reasonable person is a question of fact….
[4.] The court likewise held that the plaintiffs had adequately alleged the facts supporting their claim for intentional infliction of emotional distress:
The Complaint sufficiently asserts that Jamshed and Lufthansa engaged in extreme and outrageous conduct by disclosing the couple's relationship and marriage and that Lufthansa knew that sharing private information and failing to safeguard it in Saudi Arabia would cause the plaintiffs severe hardship and, in particular, put Roe at substantial risk of harm from the Saudi authorities, thereby causing severe emotional distress, which indeed occurred, proximate in its genesis to those actions.
Lufthansa's argument that the marital status is a matter of public record and that the alleged outrageous behavior stems from constitutionally protected speech—premised on the idea that the marital status was relevant to travel during COVID—lacks merit for the reasons explained above.
[5.] The court held that the plaintiffs had sufficiently alleged a breach of contract claim, premised on the notion that Lufthansa, as a data processor subject to the European Union's GDPR, expressly represented that it would comply with the GDPR in performing its contract with the plaintiffs.
[6.] And the court found that the plaintiffs adequately pled negligent infliction of emotional distress, contending that Lufthansa breached a duty to refrain from discriminating against its customers by failing to supervise, train, and educate its staff about the sensitivity of private information and the impact on victims when those standards are not followed.
There is some question, even under California choice‑of‑law principles, about applying California law to actions taken by a foreign company abroad; nonetheless, the court concluded that applying California law was appropriate in this instance.
Donald Putterman (Putterman | Yu | Wang LLP) represents the plaintiffs.
