Lawsuit Over Outing of Gay Saudi Residents by Lufthansa in Saudi Arabia Can Proceed

[1.] First, the facts from an earlier decision in Doe v. Deutsche Lufthansa AG:

John Doe and Robert Roe are a gay couple who have been in a “committed, but discreet,” relationship for 33 years, and who were married in California in 2013. Doe is a United States citizen and California resident who lives in Riyadh, Saudi Arabia most of the year, where he works for a company as legal counsel. Roe is a Saudi Arabian citizen who, until May 2021, was living full-time in Riyadh and working as a result estate [real estate? -EV] investor. Since 1989, Doe and Roe lived together in Saudi Arabia, but they were forced to keep their relationship and sexual orientation hidden because homosexuality has been treated as a capital offense in Saudi Arabia. “Living very carefully, they successfully kept their 33-year relationship a secret from the government, strangers, employers, friends, and family, alike.”

In 2021, Doe and Roe were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riyadh airport (Jamshed) that they were married under U.S. law, and the employee allegedly said that publicly; they also allege that the information about the marriage was conveyed 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 based on religious Sharia law and … homosexuality is a crime in Saudia Arabia, punishable in various ways including imprisonment and the death penalty, … [so] plaintiffs have no recourse under Saudi Arabian law…. In contrast, California’s strong public policy supporting gay rights and gay marriage, and prohibiting discrimination based upon sexual orientation, is reflected in the California Constitution, numerous California statutes, and decisions by the California Supreme Court….

Lufthansa contends that … Saudi Arabia has an interest in the application of its law to an incident that occurred in its country, and at the time of the incident, Doe was a Saudi Arabian citizen and permanent resident and Roe was and remains a permanent resident of Saudi Arabia. Lufthansa also argues that Saudi Arabia has an interest in “the enforcement of its own criminal laws and norms within the borders of its own sovereign state.”

Plaintiffs argue that Saudi Arabia does not have a legitimate interest in the application of its law for a variety of reasons, but that even if there is a true conflict, there is a narrow “public policy exception” to the comity doctrine that applies here. That exception “precludes application of a foreign state’s law where to do so would violate California’s public policy,” and “is so offensive to our public policy as to be prejudicial to recognized standards of morality and to the general interests of the citizens ….” Wong v. Tenneco, Inc. (Cal. 1985)….

[A]ssuming Saudi Arabia has a legitimate interest in the application of its laws, this case fits within the narrow public policy exception to the comity doctrine as set forth in Wong v. Tenneco …. The application of Saudi Arabian law would violate California’s strong public policies supporting gay rights and prohibiting discrimination based on sexual orientation, and would violate California’s strong public policy recognizing the right to privacy.

[3.] The court then allowed the Does’ public disclosure tort claim to continue:

“[T]he public disclosure tort contains the following elements: (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.”

The [Complaint] alleges that plaintiffs went to great lengths to keep their relationship and marriage private, that they disclosed their marriage to Jamshed for the limited and necessary purpose of demonstrating compliance with U.S. immigration requirements, that Jamshed loudly disclosed their marriage in a crowded airport and that Lufthansa disclosed their relationship to the Saudi government….

Lufthansa also argues that plaintiffs fail to state a claim because plaintiffs’ marriage is a matter of public record in California. Citing Cox Broadcasting Corporation v. Cohn (1975), Lufthansa argues that “the First Amendment precludes recovery for the disclosure of facts that are a matter of public record.” In that case, the Supreme Court held that a journalist could not be held civilly liable for publishing the name of a deceased sexual assault victim obtained from publicly available court records…. None of the concerns animating Cox are at issue here, as Jamshed is not a journalist, he did not learn of plaintiffs’ marriage from public records, and the alleged disclosure here did not provide a “public benefit.”

Finally, Lufthansa asserts that plaintiffs fail to allege that the disclosure was offensive and objectionable to the reasonable person because plaintiffs allege that Roe was required to disclose his marital status to Lufthansa and “customs authorities” in order to board the flight to the United States. However, the [Complaint] does not allege that Roe was required to disclose his marital status to customs authorities, but rather that plaintiffs were required to disclose their marital status to Lufthansa for “confirmation of Doe and Roe’s marital status for U.S. immigration entry requirements[.]” Further, plaintiffs allege that Roe “[d]iscreetly and quietly” told Jamshed that plaintiffs were married and that Jamshed reacted in a “hostile” manner and loudly and repeatedly disclosed plaintiffs’ marital status, including that he “loudly continued to publicly demean and question Plaintiffs about their relationship solely because they were gay.”

Plaintiffs also allege on information and belief that “Lufthansa actually gave Plaintiffs’ private facts to the Saudi Arabian government notwithstanding Lufthansa’s knowledge of the likely consequences.” These allegations are sufficient as a pleading matter, and whether Lufthansa and Jamshed’s conduct was offensive and objectionable to the reasonable person is a question of fact….

[4.] The court also similarly held that plaintiffs had adequately alleged the facts needed for their intentional infliction of emotional distress claim:

The [Complaint] [adequately] alleges that Jamshed and Lufthansa engaged in extreme and outrageous conduct by disclosing plaintiffs’ relationship and marriage and that “Lufthansa was aware that disclosing Plaintiffs’ personal information and failure to secure the same in Saudi Arabia would cause Plaintiffs severe hardship and, in particular, would put Roe at significant risk of harm by the Saudi government and create severe emotional distress, which in fact has occurred, proximately and directly causing Roe’s severe and life-threatening injuries.” …

Lufthansa also argues that because plaintiffs’ marital status is a matter of public record and plaintiffs have alleged that their marital status was directly relevant to their ability to travel to the United States in the midst of COVID-19 travel restrictions, the alleged outrageous conduct is based on constitutionally protected speech. However, for the reasons discussed above, the Court finds these arguments lack merit.

[5.] The court held that plaintiffs had adequately alleged a breach of contract claim, on the theory that “Lufthansa, which ‘is a data processor subject to the privacy and data protection regulations in the European Union’s GDPR,’ expressly represented that it would comply with the GDPR in the performance of its contract with plaintiffs.”

[6.] And the court held that plaintiffs adequately alleged negligent infliction of emotional distress, on the theory that Lufthansa had breached “a duty to avoid discriminating against its customers” by “not sufficiently monitoring, supervising, training and educating its employees concerning the sensitivity of private and confidential information and the probable impact on those victimized by failure to adhere to those standards.”

I’m not sure that it’s right in this instance, even under California choice-of-law principles, to apply California law to actions by a foreign company in a foreign country; but obviously the court thought it was right.

Donald Putterman (Putterman | Yu | Wang LLP) represents plaintiffs.