By Steven J.J. Weisman
BOSTON — When Judith Barrigas called the IRS on May 19, 2015 to discuss the possible misapplication of her income tax refund by the IRS for the year 2014, she had no idea that her 45-minute conversation with IRS agent Jimmy Forsythe would end up being broadcast to the more than 1 million listeners of the Howard Stern show. This unlikely occurrence was due to the fact that apparently prior to taking her call, Forsythe had called the Howard Stern show and, as often is the case, was put on hold. Then, apparently while using another phone line, Forsythe took Barrigas’ call and spoke to her about her income tax issues for approximately 45 minutes without being aware that their conversation was being picked up by the other phone and broadcast to the listeners of the Howard Stern show.
Recently, Barrigas sued the federal government and Howard Stern in regard to this incident. According to her complaint against Stern and the federal government (for the actions of the IRS), Stern was aware that the conversation being broadcast was a personal matter between Barrigas and the IRS and not meant by Forsythe to be aired as a part of his call to the show, yet he continued to broadcast the call which included some of Barrigas’ personal and tax information, including her telephone number.
In her lawsuit she alleges that the federal government, through the IRS, violated the Federal Tort Claims Act by recklessly or negligently disseminating her personal information. She also alleged the IRS violated her rights of privacy under Massachusetts law, the state from which her call originated, and specifically violated a federal law, 26 U.S.C. section 7431, which prohibits both IRS agents and private citizens from knowingly or negligently publicly disclosing taxpayer information.
Her allegations against Stern are that he acted negligently or recklessly in continuing to broadcast the call after it was apparent that the conversation was intended to be a private conversation. She also alleges in her complaint that Stern violated her rights of privacy as well as committed the tort of Intentional Infliction of Emotional Distress.
She alleges in her suit that, as a result of the actions of Forsythe and Stern, she “suffered and continues to suffer substantial loss of reputation, was humiliated publicly, has sustained loss of wages, earning capacity and fringe benefits, has suffered emotional distress and anguish of mind and will continue to suffer, other damages as she will show at trial.”
The responsibility of agent Forsythe, who was recently put on administrative leave, the IRS and the federal government is quite clear. Her claim against Howard Stern may be less clear. The level of invasion of her privacy will need to be determined by a court. Her lawsuit is not very specific as to the details of what was revealed other than her telephone number, which could be easily changed by her to avoid any potential harassment from anyone obtaining the number from the broadcast. It does not appear that her social security number or other information that could be used to potentially make her a victim of identity theft was compromised. The Massachusetts privacy law prohibits “substantial or serious interference” with her privacy and the invasion of her privacy in this case could be determined by the court not to rise to that level.
For Barrigas to be successful in her tort claim of Intentional Infliction of Emotional Distress, it would be necessary for her to prove that Stern’s actions were extreme or outrageous and done by him either intentionally or recklessly. Stern’s actions would have to be characterized by the court as more than merely malicious, harmful or offensive to meet this standard. For Barrigas to be successful in this claim the court would have to determine that Stern’s conduct exceeded all levels of decency. In addition, she would have to show that the emotional distress that she suffered was extreme.
In her complaint, Barrigas indicates that she suffered a substantial loss of her reputation, although it would not appear that the extent and character of the incident would be the basis for an obvious loss of reputation.
Ultimately, it would appear that this is a case that will never reach a courtroom. The liability of agent Forsythe, the IRS and the federal government are quite clear and further litigation of this matter would prolong the embarrassment of the IRS. It can be expected that the IRS will settle this case with a payment to Barrigas.
As for Howard Stern, his liability is not as clear and the extent of the harm suffered by Ms. Barrigas would need to be firmly established in court even if she were to establish Stern’s legal liability during a trial. However, if Barrigas has found the notoriety brought to her by the incident to be troubling, the prospects of a trial including extensive cross-examination of her that would become fodder for the media would seem to be something she would not wish for. Therefore, it is likely that it would be in the best interests of both Barrigas and Stern to settle this matter. It would be expected that a confidentiality agreement as to the terms of any settlement would apply.
Steven J.J. Weisman is a practicing attorney, legal editor for TALKERS magazine, a professor of Media Law at Bentley University in Waltham, Massachusetts and publisher of the website www.scamicide.com. He can be e-mailed at: firstname.lastname@example.org. Steven J.J. Weisman is available as a guest to discuss legal matters and the subjects of identity theft and scams.