United States District Judge Larry Hicks recently handed down an opinion in Ginena, et. al., v. Alaska Airlines, Inc. 2013 U.S. Dist. LEXIS 86162 (D. Nev., June 19, 2013), which relied heavily on a law review article co-authored by Gardere Litigation Partner Thomas A. Hagemann and Attorney Joseph Grinstein. In the opinion, Judge Hicks issued rulings on plaintiffs' motion for a new trial in a defamation case, which included a finding that the court had properly instructed the jury on actual malice and rejected plaintiffs' attempted reliance on the "collective knowledge" doctrine. Under the doctrine, Plaintiffs had argued that even if no individual employee at Alaska Airlines acted with actual malice, "the knowledge of all of Alaska's employees […] should be taken into account in determining Alaska's actual malice."
Citing and finding persuasive Hagemann's and Grinstein's analysis in The Mythology of Aggregate Corporate Knowledge: A Deconstruction, 65 Geo. Wash. L. Rev. 210 (1997), Judge Hicks stated that the article and related case holdings "make sense" and "guard against a court-led expansion of criminal and civil liability." In his opinion, Judge Hicks said, "As Hagemann and Grinstein argue, the collective knowledge doctrine conflates 'knowing' culpability with 'negligent' culpability, at least when applied to corporate wrongdoing" – something which should only be allowed when there is evidence of corporate willful blindness.