Greenpeace, Inc. v. The Dow Chemical Company , 97 A.3d 1053 ( 2014 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 13-CV-685
GREENPEACE, INC., APPELLANT,
v.
THE DOW CHEMICAL COMPANY, ET AL., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(CAB-8036-11)
(Hon. Michael L. Rankin, Trial Judge)
(Argued April 9, 2014 Decided August 21, 2014)
Emmy L. Levens, with whom Kit A. Pierson, Victoria S. Nugent, John P.
Relman and Reed N. Colfax were on the brief, for appellant.
Gregory Silbert, with whom Steven A. Tyrrell and David J. Lender were on
the brief, for appellee The Dow Chemical Company.
Lori Alvino McGill, with whom Abid R. Qureshi, John Cooper, Katherine
Gigliotti, and Stephen P. Barry were on the brief, for appellee Ketchum, Inc.
Mark Emery, with whom Richard C. Smith, Tracy S. DeMarco, and Matthew
H. Kirtland were on the brief, for appellee Sasol North America, Inc.
Tina M. Maiolo, Paul J. Maloney, and Alexander M. Gormley were on the
brief for appellee Dezenhall Resources, Ltd.
Brynja M. Booth, Sarah M. Everhart, and David R. Thompson were on the
brief for appellees Timothy Ward, Jay Bly, Michael Mika, and George Ferris.
2
Alan L. Hirsch, Lynne Bernabei, and Alan R. Kabat were on the brief for
amici curiae.
Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and
STEADMAN, Senior Judge.
BLACKBURNE-RIGSBY, Associate Judge: This case involves alleged
corporate espionage, and the issue of whether a corporation has a claim for trespass
or conversion against another for rummaging through the corporation’s trash in
search of “trade secrets” and other confidential information. Appellant
Greenpeace, Inc. (“Greenpeace”) filed suit against appellees,1 claiming that they
conspired and engaged in various forms of unlawful corporate espionage with the
intent to discover and undermine Greenpeace’s environmental campaigns. The
trial court granted appellees’ motions to dismiss Greenpeace’s claims of trespass to
common areas of the office buildings in which it was a tenant, invasion of privacy
by intrusion of its private concerns, offices, and staff, and conversion of its
confidential information.2 On appeal, Greenpeace argues that the trial court erred
1
The Dow Chemical Company, Ketchum, Inc., Sasol North America, Inc.,
Dezenhall Resources, Ltd., Timothy Ward, Jay Arthur Bly, Michael Mika, and
George Ferris, collectively.
2
The trial court also dismissed Greenpeace’s claims of trespass to chattel
and trespass as to electronic surveillance, neither of which Greenpeace further
pursues on appeal. Greenpeace voluntarily dismissed its claims for trespass to
Greenpeace’s offices and misappropriation of trade secrets, see D.C. Code §§ 36-
401 to -410 (2001), with prejudice after the court denied its request to certify the
dismissed claims for interlocutory appeal and to stay discovery.
3
in dismissing these claims because: (1) Greenpeace has a possessory interest in the
common areas of the office buildings in which it was a tenant; (2) appellees
improperly intruded on Greenpeace’s office and staff; and (3) the trial court erred
in declining to recognize a claim of conversion of the intangible information
contained in the documents taken by appellees from its trash. However
Greenpeace’s factual allegations may be regarded, Greenpeace’s legal arguments
cannot prevail as a matter of law, and therefore we affirm the dismissal.3
I. Factual Background
Greenpeace is a nonprofit corporation headquartered in Washington, D.C. It
campaigns to protect the environment and to prevent toxic pollution, global
warming, nuclear hazards, and genetic engineering. The Dow Chemical Company
(“Dow”) sells chemical, plastic, and agricultural products and services. It is the
world’s largest producer of chlorine, which it uses to manufacture other products.
Dioxin, a carcinogen, is a byproduct of manufacturing with chlorine. Dow is also a
3
Additionally, amici curiae in support of Greenpeace (Essential
Information, The Center for Health, Environment & Justice, Rainforest Action
Network, The Institute for Agriculture and Trade Policy, and The Center for Food
Safety, collectively) argue that this court should hold, as a matter of public policy,
that an actor may be held liable for searching through another’s refuse for
confidential information or trade secrets. We decline to do so because Greenpeace
has not pleaded a legally recognized cause of action.
4
major producer of genetically modified organisms (“GMO”). Sasol North
America, Inc. (“Sasol”), formerly CONDEA Vista Company,4 is also a commodity
and specialty chemicals producer. Between 1984 and 2001, Sasol operated a vinyl
chloride manufacturing facility in Lake Charles, Louisiana. Both Dow and Sasol
were the focus of Greenpeace’s environmental campaigns. Specifically, between
1995 and 1999, Greenpeace criticized Dow, published “numerous reports” on the
dangers of dioxin, and campaigned against the GMO industry. Greenpeace also
campaigned against Sasol and its vinyl chloride production in the Lake Charles
region. Ketchum, Inc. (“Ketchum”) and Dezenhall Resources, Ltd. (“Dezenhall”)
are both large public relations firms, which were hired by Dow and Sasol,
respectively. Timothy Ward, Jay Arthur Bly, Michael Mika, and George Ferris
(collectively, “individual appellees”), were high-level employees of the now-
defunct private security firm Beckett Brown International (“BBI”). Greenpeace
claims that most of the key executives and employees at BBI were formerly agents
of the Secret Service and the Central Intelligence Agency.
4
The company was founded in 1984 as “CONDEA Vista Company”
(“CONDEA”). In 1991, it became a wholly-owned subsidiary of RWE-DEA AG,
a German oil and gas producer. On March 1, 2001, Sasol, Ltd. purchased
CONDEA, and CONDEA, thereafter, changed its name to Sasol North America,
Inc., a subsidiary of Sasol, Ltd. Although the company was called CONDEA Vista
Company during the period of time relevant to this complaint, for purposes of
simplicity, we shall refer to the company at all times by its current name “Sasol.”
5
In the instant action, Greenpeace alleges two distinct conspiracies committed
by two groupings of appellees occurring roughly concurrently between 1998 and
2001. The first conspiracy involves Dow, Ketchum, and BBI. The complaint
alleges that, between at least 1998 and 2001, Dow paid Ketchum to help it obtain
confidential information from Greenpeace, and that Ketchum, in turn, hired BBI to
effectuate that purpose. The second conspiracy involves Sasol, Dezenhall, and
BBI. The complaint similarly alleges that, at least between 1998 and 2000, Sasol
paid Dezenhall to help it secure information from Greenpeace, and that Dezenhall
engaged BBI for the job. BBI referred to its work for Sasol/Dezenhall as the
“Lake Charles Project.” It is not alleged that Dow/Ketchum and Sasol/Dezenhall
colluded together; rather, the two conspiracies are presented as distinct. However,
the conspiracies were closely related and had substantial commonalities. In both
instances, large corporations are alleged to have engaged BBI for the purpose of
procuring confidential information from Greenpeace.
BBI (through the acts of the individual appellees) is alleged to have engaged
in, essentially, three invasive methods of intelligence gathering from Greenpeace:
(1) “D-lines,” which involved recovering documents from the dumpsters and
recycling bins that Greenpeace used for its trash; (2) physically infiltrating and
breaking into Greenpeace’s office, along with monitoring and surveilling
6
individuals associated with Greenpeace; and (3) electronic surveillance by hacking
into Greenpeace’s computers and wiretapping its telephones. For purposes of this
appeal, only the “D-lines” and physical intrusion and surveillance tactics are
relevant.
According to Greenpeace, “D-lines” is BBI terminology referring to the act
of acquiring internal documents and records by searching through the dumpsters
and recycling bins used by Greenpeace. Between 1998 and May 2000,
Greenpeace’s office was located at 1436 U Street, Northwest, Washington, D.C.
Greenpeace’s dumpster was located at ground level, abutting the building. Its
recycling bins were located on an elevated loading dock sheltered in the back.
Both the trash and recycling bins were on private property. In May 2000,
Greenpeace moved its office to 702 H Street, Northwest. This time, the recycling
and trash bins were both located inside the building in a locked ground floor room.
Greenpeace alleges that, between September 1998 and October 2000, the
individual appellees, or their agents, 5 conducted more than 100 D-lines at both
Greenpeace’s U Street and H Street offices for Dow. Similarly, Greenpeace claims
that, between July 13, 1998 and November 12, 1998, the individual appellees, or
5
Greenpeace claims that BBI contracted a Metropolitan Police officer to
assist in at least fifty-five D-Lines by using his official police badge to gain access
to dumpsters that were enclosed by a locked fence.
7
their agents, conducted at least thirty-five D-lines for the Lake Charles Project on
behalf of Sasol at the U Street office.
Greenpeace further alleges that BBI engaged in surveillance of specific
individuals associated with Greenpeace and intruded into its offices. Specifically,
it accuses BBI of breaking into its U Street office and stealing documents. Further,
it claims that BBI engaged in surveillance of Greenpeace on behalf of Dow. And,
on behalf of Sasol, BBI hired “research consultant” Mary Lou Sapone to surveil
Greenpeace’s U Street office while pretending to be a prospective volunteer.
Through BBI’s actions, Dow/Ketchum and Sasol/Devenhall gained voluminous
amounts of confidential information, including: campaign planning and strategy
documents, internal communications, legal communications, financial reports and
information, and personal employee information. Greenpeace asserts that both
Dow/Ketchum and Sasol/Devenhall were aware of BBI’s illegal methods, as
evidenced by their substantial monetary payments to BBI, interactions and
briefings with BBI, and attempts to limit or obfuscate their involvement with BBI.
Greenpeace claims it was ignorant of appellees’ actions when they occurred,
and that it learned of the misconduct only years later in April 2008, through an
investigative reporter for Mother Jones magazine, who obtained the implicating
8
information from one of BBI’s former principals seeking to expose its actions. On
November 29, 2010, Greenpeace filed its federal Racketeer Influenced and Corrupt
Organizations Act (“RICO”) claims, 18 U.S.C. §§ 1962 (c) and (d) (amended
1988), and supplemental state-law claims in the United States District Court for the
District of Columbia. On September 9, 2011, the federal court rejected the RICO
claims and dismissed the other claims without prejudice. See Greenpeace, Inc. v.
The Dow Chem. Co., 808 F. Supp. 2d 262, 274 (D.D.C. 2011). Following
dismissal, Greenpeace filed the instant action in Superior Court on October 7,
2011. The running of the statutory limitations period for its state-law claims tolled
while the case was pending in federal court. See 28 U.S.C. § 1367 (d) (1990);
Stevens v. ARCO Mgmt. of Wash. D.C., Inc., 751 A.2d 995, 1003 (D.C. 2000)
(applying § 1367 (d)).
Appellees filed motions to dismiss all counts of the complaint, see Super. Ct.
Civ. R. 12 (b)(6). At the motion hearing, the trial court, among other things,
probed Greenpeace’s counsel extensively on the question of what specific injuries
Greenpeace is alleged to have suffered as a result of appellees’ actions.
Specifically, the court questioned whether Greenpeace could claim that its
campaigns and ability to work were impacted if Greenpeace did not know of the
wrongdoing until the Mother Jones article was published. Greenpeace’s counsel
9
was unable to proffer any specific examples of harm to any Greenpeace campaign
or mission resulting from appellees’ actions.
On February 5, 2013, the trial court issued an order granting appellees’
motions to dismiss the claims of trespass to common areas, invasion of privacy,
and conversion.6 Preliminarily, the court determined that both Dow/Ketchum and
Sasol/Dezenhall could be held vicariously liable for the individual appellees’
actions because the complaint sufficiently pleaded acts amounting to a “plausible”
civil conspiracy. The trial court based this determination on the fact that
Dow/Ketchum and Sasol/Dezenhall participated in meetings with BBI and
received information on their investigatory activities.7 As to the claim of trespass
to common areas (which was based on the D-line allegations), the court found that
Greenpeace, as a tenant in an office building (at both the U Street and H Street
locations), lacked a possessory interest in the common areas where the trash and
recycling bins were located necessary to maintain a suit for trespass. As to
6
See supra note 2 for the trial court’s full disposition of Greenpeace’s
claims.
7
The trial court also tacitly agreed with Greenpeace that the statute of
limitations for all of its claims tolled until April 2008, the date when it first became
aware of the conduct. Appellees do not appear to challenge this finding on appeal;
thus, any such argument is waived. See Rose v. United States, 629 A.2d 526, 535
(D.C. 1993) (“It is a basic principle of appellate jurisprudence that points not urged
on appeal are deemed to be waived.”).
10
invasion of privacy by intrusion, the court found three independent bases for
dismissing the claim: (1) Greenpeace’s inability to allege “even one dollar of
actual, compensable damages” was fatal to its claim; (2) a corporation does not
have a right to privacy under District of Columbia law; and (3) the claim was time
barred by a one-year statute of limitations. Lastly, as to Greenpeace’s claim of
conversion of the information contained in its documents, the court found that
there is no cause of action for conversion of “intangible property that is not merged
into a transferrable document.” This appeal followed.
II. Discussion
This court reviews de novo an appeal from a motion to dismiss a complaint
under Rule 12 (b)(6). See In re Estate of Curseen, 890 A.2d 191, 193 (D.C. 2006).
“Like the trial court, this court accepts all of the allegations in the complaint as
true, and must construe all facts and inferences in favor of the plaintiff.” Murray v.
Wells Fargo Home Mortg., 953 A.2d 308, 316 (D.C. 2008). “To survive a motion
to dismiss, a complaint must set forth sufficient facts to establish the elements of a
legally cognizable claim.” Woods v. District of Columbia, 63 A.3d 551, 552-53
(D.C. 2013). “However, [f]actual allegations must be enough to raise a right to
relief above the speculative level.” Chamberlain v. Am. Honda Fin. Corp., 931
11
A.2d 1018, 1023 (D.C. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)) (alteration in original). “Furthermore, dismissal under Rule 12 (b)(6)
is appropriate where the complaint fails to allege the elements of a legally viable
claim.” Id. (citation omitted); see also Potomac Dev. Co. v. District of Columbia,
28 A.3d 531, 543 (D.C. 2011). Greenpeace challenges the trial court’s order
dismissing its claims for: (1) trespass to common areas, (2) invasion of privacy,
and (3) conversion. We address each claim in turn.
A. Trespass to Common Areas
Greenpeace contends that the trial court erred in finding that, as a tenant in
an office building, it could not successfully maintain a claim of trespass to
common areas — specifically, the areas of the building where the trash and
recycling bins were located. The tort of trespass is defined as “an unauthorized
entry onto property that results in interference with the property owner’s
possessory interest therein.” Sarete, Inc. v. 1344 U St. Ltd. P’ship, 871 A.2d 480,
490 (D.C. 2005) (emphasis added) (citation and internal quotation marks omitted).8
8
Of course, it is well settled that a tenant, while not a property owner, but
rather “a purchaser of an estate” and “entitled to exclusive legal possession” of the
leased property, can maintain a claim of trespass with respect to the premises for
(continued . . .)
12
Consequently, a recognized possessory interest is the “key requirement” for a
successful claim of trespass. See Gaetan, supra note 8, 729 A.2d at 898 (citation
omitted). A “possessory interest” is defined as “[t]he present right to control
property, including the right to exclude others, by a person who is not necessarily
the owner.” Black’s Law Dictionary 1203 (8th ed. 2004); see also Fortune v.
United States, 570 A.2d 809, 811 (D.C. 1990). Thus, to maintain its claim of
trespass to common areas, Greenpeace must demonstrate that it has a recognized
possessory interest in the trash and recycling areas of its office buildings, meaning
the ability to control and exclude others from using those areas. Greenpeace
cannot make this showing. Greenpeace cannot demonstrate “exclusive” control of
the trash and recycling areas because it concedes that those areas were for all
tenants’ common use. Thus, Greenpeace could not exclude other tenants from
accessing the trash and recycling area, nor could it be excluded by the other
tenants. Without such a possessory right, as a matter of law, Greenpeace cannot
maintain a suit for trespass to these common areas.
Contrary to Greenpeace’s claim, the mere fact that a tenant may have the
“authority” to permit access into the common areas does not confer onto the tenant
(. . . continued)
which it has a lease. Young v. District of Columbia, 752 A.2d 138, 144 (D.C.
2000); see also Gaetan v. Weber, 729 A.2d 895, 898 (D.C. 1999).
13
a legally recognized possessory interest in those areas. See, e.g., Young, supra note
8, 752 A.2d at 144 (distinguishing a legally recognized possessory interest from
the right to “merely” use the premises). Greenpeace relies on City of Seattle v.
McCready, 877 P.2d 686, 690 (Wash. 1994) (en banc), in which the Supreme
Court of Washington, considering the legality of Seattle’s Residential Housing
Inspection Program (designed to “assure the fitness of residential tenancies”),
concluded that tenants possessed the “authority” to consent to a search of an
apartment building’s common areas. Id. (stating in that context that “landlords do
not have exclusive authority over the common areas”). The court reasoned that
“[i]n order to admit visitors to an apartment, the tenant must necessarily possess
the authority to permit guests to pass through the common areas leading to that
apartment.” Id. Nothing in the opinion addresses whether that authority confers
on the tenant a possessory interest with respect to (i.e., the authority to exclude
others from) the common areas. For purposes of our analysis, we find more
persuasive the opinion in Aberdeen Apartments v. Cary Campbell Realty Alliance,
Inc., 820 N.E.2d 158, 165-66 (Ind. Ct. App. 2005). There, the Court of Appeals of
Indiana agreed with the McCready court that “tenants must have the right to permit
visitors to pass through the common areas in order to enter their apartment,” but
concluded that to confer onto tenants a possessory right based on this authorization
would cause an absurd result because “[i]f neither the landlord nor the tenant has
14
exclusive control over common areas then no one would be able to maintain an
action for trespass to those areas.” Id. at 165. Consequently, the court held that
landlords retain exclusive possession of common areas. Id.; see also Stanley v.
Town Square Coop., 512 N.W.2d 51, 54 (Mich. Ct. App. 1994). We agree with the
Aberdeen Apartments court’s reasoning, and also note that to hold otherwise would
be patently unfair because the landlord, and not the tenant, bears the burden of
maintaining the common areas. See Graham, supra note 8, 424 A.2d at 105.
Accordingly, Greenpeace cannot maintain its suit for trespass to common areas.
B. Invasion of Privacy
Greenpeace next challenges the trial court’s dismissal of its claim of
invasion of privacy by intrusion based on appellees’ alleged actions in trailing
activists, infiltrating its offices with undercover agents, and riffling through its
trash and recycling. Specifically, Greenpeace contends that: (1) the trial court
should have applied a three-year statute of limitations to its claim, rather than a
one-year statute of limitations; (2) a corporation has a “cognizable privacy interest”
sufficient to maintain an invasion of privacy claim; and (3) the complaint pleaded
sufficient facts establishing injury. We affirm because the intrusion claim is time-
15
barred by a one-year statute of limitations, and thus we need not address
Greenpeace’s other two arguments.
“Invasion of privacy is not one tort, but a complex of four, each with distinct
elements and each describing a separate interest capable of being invaded.” Wolf
v. Regardie, 553 A.2d 1213, 1216-17 (D.C. 1989). The four constituent torts are:
“(1) intrusion upon one’s solitude or seclusion [“intrusion”]; (2) public disclosure
of private facts [“public disclosure”]; (3) publicity that places one in a false light in
the public eye [“false light”]; and (4) appropriating one’s name or likeness for
another’s benefit [“appropriation”]. Id. at 1217 (citing Vassiliades v. Garfinckel’s,
Brooks Bros., 492 A.2d 580, 587 (D.C. 1985)). Greenpeace’s appeal is focused
solely on “intrusion.” “Unlike some other types of invasion of privacy, intrusion
does not require as an essential element the publication of the information
obtained.” Id. (citing Restatement (Second) of Torts § 652B cmt. a (1977)).
While it appears that no cases from this jurisdiction have explicitly decided
what statute of limitations to impose on invasion of privacy claims, the District of
Columbia Circuit, in Mittleman v. United States, 322 U.S. App. D.C. 367, 372, 104
F.3d 410, 415 (1997), concluded that invasion of privacy (false light) and
defamation should be subject to the same one year statute of limitations under
16
District of Columbia law because both claims protect the same interests, namely,
the reputation and personal psyche of the plaintiff. The federal court has
consistently applied the one year statute of limitations to invasion of privacy
claims arising out of District of Columbia law. See Paul v. Judicial Watch, Inc.,
543 F. Supp. 2d 1, 10 (D.D.C. 2008) (concluding that the “one-year statute of
limitations under D.C. Code § 12-301 (4) [(2009 Supp.)] . . . applies to any
invasion of privacy claims”) (emphasis added); Doe v. Southeastern Univ.,
732 F. Supp. 7, 8 (D.D.C. 1990); see generally Mullin v. Wash. Free Weekly, Inc.,
785 A.2d 296, 298 (D.C. 2001); Grunseth v. Marriott Corp., 872 F. Supp. 1069,
1074-75 (D.D.C. 1995).
Greenpeace does not actually dispute that the three constituent invasion of
privacy torts of public disclosure, false light, and appropriation are subject to a
one-year statute of limitations. Rather, it claims that “intrusion” should be treated
differently from the other three and be subject to a three-year statute of limitations,
pursuant to D.C. Code § 12-301 (2), (3), and (8), because intrusion does not require
the key element of “publication” that makes those other torts analogous to
defamation. Intrusion, contends Greenpeace, is more akin to a claim of trespass,
which is “a tort involving injury to property,” and therefore should be governed by
a three-year statute of limitations. We disagree and hold that Greenpeace’s
17
intrusion claim, along with other invasion of privacy claims, is subject to the one-
year statute of limitations applicable “for libel, slander, assault, battery, mayhem,
wounding, malicious prosecution, false arrest or false imprisonment.” D.C. Code
§ 12-301 (4).
First, contrary to Greenpeace’s contention, the tort of intrusion is broad and
is not necessarily limited to an action involving injury to property.
The tort of intrusion upon seclusion has three elements:
(1) an invasion or interference by physical intrusion, by
use of a defendant’s sense of sight or hearing, or by use
of some form of investigation or examination . . . (2) into
a place where the plaintiff has secluded himself, or into
his private or secret concerns . . . (3) that would be highly
offensive to an ordinary, reasonable person.
Wolf, supra, 553 A.2d at 1217 (citations omitted). For example, in Wolf, the court
identified harassment, peeping through windows where a plaintiff has secluded
himself, eavesdropping on private conversations, or examining a plaintiff’s private
bank account as types of intrusion. Id. at 1217-18. Moreover, the court recognized
that, although there are differences between each of the four permutations of
invasion of privacy, the four torts also share many of the same elements, and “each
involves interference with the interest of the individual in leading . . . a secluded
and private life[.]” Id. at 1217 n.5 (alteration in original) (citation and internal
quotation marks omitted). Second, having a different statute of limitations for torts
18
all categorized under “invasion of privacy” would be confusing and would frustrate
judicial efficiency. Although the term “invasion of privacy” covers four different
torts, in many instances, various theories of invasion of privacy are combined in
one case. See Pearson v. Dodd, 133 U.S. App. D.C. 279, 283-84, 410 F.2d 701,
705-06 (1969). For these reasons, we decline to hold that intrusion should be
subject to a three-year statute of limitations, in contrast to the other three invasion
of privacy torts, and hold that Greenpeace’s invasion of privacy by intrusion claim
is time-barred by the one-year statute of limitations.
C. Conversion
Lastly, Greenpeace argues that the trial court erred in dismissing its claim
for conversion, premised on the various documents that appellees allegedly took
from Greenpeace’s trash and recycling containers. Greenpeace contends that this
court should recognize a claim of conversion of intangible property, based on the
“confidential” information contained within the documents taken from its trash and
recycling by BBI. However, Greenpeace’s conversion claim fails as a matter of
law on the independent basis that it has no recognized property interest in anything
that it purposefully threw away or abandoned. Conversion is “an unlawful exercise
of ownership, dominion, and control over the personalty of another in denial or
19
repudiation of his right to such property.” See Wash. Gas Light Co. v. Pub. Serv.
Comm’n, 61 A.3d 662, 675 (D.C. 2013) (emphasis added) (citation omitted). By
its very definition, a conversion claim cannot lie in “items lost or left behind” or
thrown away. Baltimore v. District of Columbia, 10 A.3d 1141, 1155-56 (D.C.
2011). “[A] conversion claim cannot be grounded on abandoned property,” since
the abandoning party can no longer assert a right to the property over which he or
she intentionally relinquished control. Id.; Block v. Fisher, 103 A.2d 575, 576
(D.C. 1954) (“Abandonment of personal property is a complete defense to an
action for conversion.” (citation omitted)).
In determining whether a party retains any recognized interest in “private”
information that is thrown away, our decision in Danai v. Canal Square Assocs.,
862 A.2d 395, 398 (D.C. 2004), is instructive. In Danai, appellant Danai filed suit
against her commercial landlord for rummaging through her trash and taking a
letter from it. Id. at 397-98. On appeal, Danai principally argued that she
maintained an expectation of privacy in the contents of the letter that had been
placed in the building’s collective trash room. Id. at 399-400. We disagreed,
observing that “[t]he vast majority of courts have ruled that . . . the individual who
placed [the] garbage [or trash] for collection either abandoned it or has no
reasonable expectation of privacy therein, thus rendering any search and seizure of
20
that trash lawful.” Id. at 402 (brackets and alterations in original) (citation and
internal quotation marks omitted)). Consequently, we held that Danai “both
abandoned and relinquished control over the discarded letter” by allowing “her
trash to be collected and placed in a locked community trash room over which she
has no control.” Id. We also explicitly noted that, while “Danai may have desired
to keep her personal communications secret and private, hers was a failed attempt.”
Id. at 403 (citation and internal quotation marks omitted).
Similarly, Greenpeace’s actions in placing its “confidential” information in
the trash and recycling, located either outside the building (U Street Office) or in a
locked communal trash room (H Street Office), constituted abandonment of both
the physical documents and its contents. The fact that Greenpeace placed the
documents in private trash and recycling containers is irrelevant because there is
nothing in the record to suggest that Greenpeace still sought to exert any control
over these items or that this was a “special arrangement” intended to make the
garbage “inviolate.” Id. (“[A]bsent proof that a person has made some special
arrangement for the disposition of [her] garbage inviolate, [she] has no reasonable
expectation of privacy with respect to it once [she] has placed it for collection.”
(alteration in original) (citation and internal quotation marks omitted)).
Greenpeace admitted that it shared the trash and recycling with other tenants, and
21
that the trash was routinely picked up by a private contractor to be disposed of,
thus evidencing that Greenpeace relinquished control and abandoned any legal
interest it had over the documents and information placed in the trash.
Accordingly, because Greenpeace abandoned the information, its claim of
conversion fails as a matter of law.
To be sure, a distinction might be drawn between abandonment of the
physical piece of paper and abandonment of the intangible property set forth in that
paper. But we are addressing here the tort of conversion. As applied to intangible
property, our jurisprudence has sharply limited the possible availability of that tort
to types of documents of intrinsic value not presented here. See Pearson, supra,133 U.S. App. D.C. at 284, 410 F.2d at 706; see also Kaempe v. Myers, 361 U.S.
App. D.C. 335, 341, 367 F.3d 958, 964 (2004) (“Where there has been no
dispossession of property rights, there can be no action for conversion.” (emphasis
added)). Conversion is a tort based on the theory that the defendant “has in some
way treated the goods as if they were his own, so that the plaintiff can properly ask
the court to decree a forced sale of the property.” Pearson, supra, 133 U.S. App.
D.C. at 284, 410 F.2d at 706. Whatever other protections the law may offer to
protect intangible property rights, the common-law tort of conversion is generally
ill-suited to that end.
22
III. Conclusion
Whatever view may be taken of the allegations made by Greenpeace, the
common law torts alleged by Greenpeace are simply ill-suited as potential
remedies. Accordingly, for the reasons stated above, the trial court’s order
dismissing Greenpeace’s complaint is
Affirmed.