By Lori Higgins
A federal judge Wednesday denied a request for a preliminary injunction against a controversial conservative group that a lawsuit alleges obtained information illegally from the American Federation of Teachers-Michigan.
The AFT-Michigan, a statewide teacher's union, filed the lawsuit in September, saying Project Veritas used an operative to infiltrate the union. A Wayne County judge issued a temporary restraining order, barring the organization from using or publishing any information it obtained from the union.
But the matter was moved to federal court in October. And Wednesday, U.S. District Judge Linda Parker not only revoked the temporary restraining order, but also denied AFT Michigan's request for a preliminary injunction.
Among the judge's findings: The documents allegedly obtained by the operative were not trade secrets. Parker also found that there is no certainty that publication of the documents could harm the union, and that imposing an injunction would infringe on the defendant's First Amendment rights.
Union officials were encouraged with parts of the ruling, and David Hecker, the president of the union, said the lawsuit isn't done.
"It is far from the end," Hecker said. "We will go after Project Veritas for any and all violations of the law."
Stephen Klein, co-counsel for Project Veritas in the lawsuit, described Parker's ruling as "comprehensive and thoughtful."
"It's one thing to come after an organization after something has been published," Klein said. "But to go in, in advance with barely any evidence whatsoever and claiming they can't publishing anything is a violation of free speech and free press rights."
Project Veritas has been described by USA Today as a political group founded by conservative provocateur James O'Keefe that is known for using secret identities and hidden cameras to target liberal organizations. Most recently, the group was outed after it tried to plant a false story in the Washington Post.
The lawsuit was filed against the group and Marisa Jorge. It claims that Jorge -- using the name Marissa Perez -- is an operative of the organization and obtained an internship with AFT Michigan, claiming to be a University of Michigan student.
Jorge, the lawsuit said, sought and was given access to "a substantial amount of confidential and proprietary information including databases, confidential conferences and the status of grievances."
Union officials were buoyed that Parker wrote in her ruling that the union likely would succeed on its argument that Jorge's actions amounted to a breach of duty of loyalty.
"Plaintiff alleges that Defendant Jorge breached her duty of loyalty by fraudulently misrepresenting herself, misusing and mishandling confidential information, and failing to disclose that she worked for an organization whose interests conflicted with Plaintiff."
The union, Parker wrote, "has a likelihood to succeed," on the merits of that breach of duty of loyalty claim.
Mark Cousens, the attorney for the union, said that argument is the core of its claim against Project Veritas.
"Everything flows from that," Cousens said. "She gained access to the Federation offices, which are closed to the public, behind locked doors and gates, based on outright lies."
It also boosts the union's trespass and fraud claims in the lawsuit, Cousens said.
"That was an important observation of the judge," he said.
Parker, in a 27-page ruling filed today, noted that the AFT Michigan had identified 221 documents Jorge allegedly misappropriated. The key question? Were there trade secrets in those documents and does it violate Michigan's uniform trade secrets law.
The union argued that the documents were trade secrets and confidential.
"The information is not known throughout the public education community; it was assembled as part of the Federation's overall strategy regarding charter schools," the union said in court documents, as outlined in Parker's ruling.
But Parker was unconvinced based on the documents she read.
"None of the documents Plaintiff produced fall within the meaning of a 'trade secret' as defined" by the state law, she wrote.
Cousens said it's too early to say that those documents don't exist.
"The process of discovery is about to commence. As we said in our papers to the court, we do not know the full extent of her theft. We know some of what she took and some of what she was looking at."
Further, Parker rejected the union's allegation that Jorge violated state law by recording conversations without consent. The union, she said, "offers no factual support that Defendant Jorge actually installed, placed or used, without its consent, any device for 'observing, recording, transmitting, photographing, or eavesdropping.' "
The union also alleged that Jorge breached her fiduciary duty and duty of loyalty by accessing information outside her authorization, accessing information unrelated to her assignment, and securing and copying information not generally available to the public for the purpose of sharing that info with Project Veritas.
"The Court does not find that Plaintiff's fiduciary duty claim applies in this case and declines to recognize a fiduciary duty in the context Plaintiff would like the Court to acknowledge."
Parker also found that the union had not persuaded her that its "commercial interests are more fundamental," than the defendant's First Amendment rights.
Klein said the lawsuit remains baseless. He said Project Veritas will continue to "fight for its" free speech rights.
Hecker said the experience is changing the way the union accepts interns. Jorge had been recommended by someone at the University of Michigan, and had claimed she was interested in becoming a second grade teacher, the union says.
"We will now use the same procedures we use when people apply for employment. Given how Marisa came to us, we didn't use that same procedure. We should have, in hindsight. But it doesn't make up for the fraud she committed."
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