Interviewer: SJC13012.
Massachusets court authority v. Turo Inc and others.
-: I think we're just waiting for,
here we are.
Okay, Attorney Prelogar.
-: Good morning, and may it please the court.
Massport sued Turo, an online platform
because some users on Turo's website choose
to list their cars as available at Boston Logan Airport
and coordinate with other users on Turo's website
to arrange car hand offs at Boston Logan Airport.
It's undisputed in this case
that that content originated entirely with Turo's users
and not with Turo.
Turo doesn't attempt to control for its users
where they should meet for car handoff.
It doesn't require any host,
that's the car owner to offer delivery at all, let alone
to offer delivery at any particular location like Logan.
-: Can I interrupt you for a second?
So on that point that all Turo is doing is hosting content.
One of the things that I saw in the record,
and it was a while ago,
was a website snapshot
or screenshot of cars available at Logan,
photographs of those cars,
and what I'll call an advertisement touting the ability
of having curbside pickup at Logan.
Whose content is that?
-: So the screenshot
that I believe Your Honor is talking about fall in
to two categories.
There is generic reference to Turo's,
the ability for its hosts
to offer airport delivery
on Turo's website.
That's reflective,
of course of the underlying host content (indistinct)
to offer delivery at airports around the country.
So I want to emphasize that-
-: Can I stop you there?
Because it's really important to me,
because you are arguing
that you're just hosting content.
When you say it is part
or pulls from the host content,
who is it that's making that new statement
that Turo allows this curbside pickup?
-: So Turo hasn't disputed
that it has content saying generally
that airport delivery is available around the country.
It's not saying that-
-: And just to be specific,
that is Turo's content?
-: That's right.
But Massport's claims are not based on that content
and that is the key element here.
The superior court found
that Turo was allegedly aiding
and abetting trespass.
So these are trespass claims.
And the content,
the essential published content that's connected
to those trespass claims is the user content.
It's the host listing saying
that the host is willing
to offer delivery at Logan.
That's created entirely by hosts.
Turo did not create that content.
-: So can I stop you there?
Because this is on the motion
to dismiss the complaint, right?
-: No, this is a preliminary injunction appeal.
So mass support-
-: So at the beginning of the process.
So isn't it possible
that there is a theory of aiding
and abetting liability that by posting Turo's content,
that the first one that we're talking about,
that Turo is actually aiding
and abetting the trespass by its hosts?
-: There's no theory of liability
that wouldn't implicate section 230 of the CDA.
And I wanna emphasize that the outsets-
-: That's not my question.
My question is the aiding and abetting claim,
could it possibly include the particular content
that we're talking about?
-: That's not the way that Massport pleaded it.
If you look at the aiding and abetting claim
in the complaint,
Massport said that Turo,
by operating its website had aided and abetted.
-: Okay, is that not on Turo's website?
-: This content is on Turo's website,
but what Massport is abetting at-
-: So then, let's move on to the second.
You were about,
I interrupted you
when you said there's two other pieces of content.
So what's the second piece of content
that Turo creates?
-: The second piece
that Massport is focused on is the search functionality.
So it's emphasized that there is a search BOS butt-in,
which links
to search results from the user generated content.
But it's critical to recognize that
that itself is part of Turo's publisher function
and there are so many cases
that talk about search functionality
and say those decisions about how
to aggregate user information,
about how to make it filtered
and more accessible to users is itself a publisher function.
And so that suggestion
that Turo by linking
to a Boston Logan search page
is somehow creating its own content runs counter
to places from around the country
that recognize that
that kind of search functionality
is itself protected by section 230
of the Communications Decency Act.
-: Can we direct your attention
to the Communication Decency Act?
Why does the aiding
and abetting trespass claim treat Turo as a publisher,
given all that has been alleged,
that Turo not only hosts the content
but also provides a pricing algorithm,
albeit not necessarily used,
third party insurance, road side assistance,
guest screening, photographs, policies such as safety
and security that hosts must abide by,
and that the tying of the hosts in this particular website?
They must use Turo.
How is that more then just treating Turo as a publisher?
-: But to be clear,
it's necessary in every case
to look at what is the content
that's causing harm.
Massport is not harmed by the fact
that Turo makes available third party insurance options
or otherwise operates the platform.
That's applied across the board.
The one thing that harms the-
-: Yes, Massport is being harmed by the trespass.
I'm talking about the aiding and abetting count.
Doesn't it help the trespass
that there is this third party insurance,
road side assistance, guest screening,
photographs of the vehicles,
policies securing the safety,
positive guest experience, all that.
Doesn't that aid and abet the car rental companies
in their trespass?
-: It doesn't provide a basis
to eliminate immunity.
And it's important to recognize
that websites are frequently active in this way, to say
that those kind platforms services eliminate immunity
would open the door
to always being able to plead around section 230
and try to hold a website liable for its users content.
That's the critical question.
-: You're not just like Google.
You know?
You've created this business,
you've encouraged the dropping off
and picking up at the airport,
you know skipping the rental cars.
You've sort of created,
you're not just sort of a passive publisher of information.
This is your business,
you've created it, framed it, encouraged it,
and advertised for it.
And you get paid for it.
You're getting a chunk of the money off of these things,
it's not like there's just advertising at your sight.
You're making money off of these transactions
and particularly the harm
to Logan is this sort of unregulated car,
encouraging unregulated equivalent of rental cars
to go around the airport,
which causes environmental harm,
safety harm, all kinds of things.
So, just seems like the trial judge seems
to have captured all of that.
I don't understand what particularly,
the question really is the 230.
You seem to fall into something different,
that you're really creating this business,
profiting from it, and managing it.
You're not really just publishing information.
You're structuring the whole set up.
-: That's what (indistinct) always argue
in cases against websites now,
because they recognize
that otherwise if they directly just refer
to user content, section 230 will bar their claims.
So there are case after case around the country
that directly considers this kind of encouragement claim
and down the line they reject that as a basis
to avoid liability here.
-: What is the best case,
give me a good case for something like this,
where it's not like a Google Publisher
but literally somebody whose profiting and helping
to structure the whole set up.
Give me a couple good cases,
cause I read the Kosonki case.
You know, Judge Kosinki's decision on Airbnb,
which seems to go directly against you.
What's the best case for you?
-: Well I point this court
to the first circuit's decision in the Backpage case.
There, there was specifically allegations
that the website would deliberately structure
to facilitate illegal sex trafficking.
The website did make a profit off user listings.
It created a specific escort category for those postings
and it tried to-
-: But it was a generic,
Backpage is right again, it's a generic,
it's a website
that hosts all different kinds of content, right?
It's not sort of creating a business around sex trafficking.
It's, Backpage had all kinds of ads, right?
I mean I've never seen it
but it's a mixture of stuff, right?
You advertise for all different kinds of things, right?
Not just dating.
-: The allegations escort section
was specifically focused
on facilitating illegal sex trafficking.
And to be clear here,
this is not a website by Turo
that just focuses on airport delivery.
It's a platform
that connects car owners
that can engage
in a variety of car sharing transactions around the nation
and around Boston
without requiring any specific delivery location.
The only thing that's harming Massport here.
Serge George: Could I just jump in with one thing?
-: Yes.
-: The record that I was able
to go through seemed to suggest
that Massport on many occasions had asked you
to come to the table
to talk about what they thought
was the offending part of Turo in all this.
And they wouldn't come and meet them half way.
They wouldn't meet that olive branch.
So if you know what the issue is
and what it is that Massport is objecting to,
can't your folks just stop facilitating those transactions
by saying, "We're not gonna process those.
If we see somebody's looking to get picked up at Logan,
we're just not gonna process them."
And you got all these really smart people
that can create some kind of algorithm
that can see when that's being the thing
that they're trying to do and block it.
Can't you just do that?
-: To be clear Your Honor,
just to push back a bit
on the characterization of Turo's conduct in this case,
Turo did try to approach the sessions with Massport
and in fact had made an offer
to pay a fee that was equivalent to the fee
that is paid by transportation network companies,
Uber and Lyft.
So I just wanted to clear up that factual point.
But with respect to the processing of transactions,
and this raises the HomeAway case
that I believe was mentioned earlier,
their is a critical distinction here.
In every case, you have to look at the cause of action,
and in HomeAway, there was a specific ordinance
that prevented booking conduct.
It directly regulated the platform
and therefore, it was not trying
to impose a duty on the platform related
to user conduct whatsoever.
Instead, it offered safe harbor,
no matter what the website allowed to appear on its site.
Here, we don't have any kind of ordinance
that's remotely comparable to this.
There is no harm to Massport from Turo's booking.
Imagine that Turo booked a Logan designated transaction,
but then the user canceled
or maybe the users decided after the fact to meet elsewhere,
there'd be no harm to Massport,
no liability, no cause of action.
-: The regulation, the regulation
that requires them to be invited.
But if I could go back
to your comment
about how things are going with the case around the country,
and even putting HomeAway aside for a moment,
could you lose on basically these facts
in the Central District of California
to the immunity under the Communications Decency Act?
-: We did receive an adverse decision,
the Ninth Circuit's going to hear argument on
that issue next week.
-: But they could argue it,
but they denied the stay.
-: That's right at the stay stage,
but the merit's panel of course hasn't had a chance
to consider those issues yet.
We think both the superior court's decision here
and the decision out of California
reflect the same fundamental misunderstanding
that this is an attempt
to directly regulate what can appear on Turo's website
and in fact the terms of the preliminary injunction make
that clear.
The injunction itself says
that Turo shall not permit users
to list their cars as available at Logan Airport.
That is poor CDA 230 protected conduct and content
and the reason that the PI says that is because
that's what Massport thought
in this case before it realized
that it had a real CDA 230 problem,
it included in its complaint this claim
that Turo by operating its website was liable
and then it sought out a PI
that specifically targeted that user content.
And that makes because-
-: Can I ask you a question about the PI,
the terms of the PI?
That first paragraph because I do see that
that first term of the PI falls squarely within the CDA,
or it at least presents a problem.
What would be the remedy,
if we disagree with you
and we agree with the trial judge
that in fact there is a likelihood of success
in the merits,
no need to show reparable harm because it's a trespass.
A PI should definitely issue.
What would you do,
how would you have us rewrite paragraph one of the PI so
that it doesn't fall amiss of the CDA?
-: Well certainly we agree
that paragraph one directly conflicts with the CDA,
but it's not the only position that does.
There is also a much broader permission
that says that Turo shall not facilitate
in any way any transactions at Logan.
And so even if this court were
to try to modify paragraph one,
that separate restriction seems
to directly target what's appearing on Turo's website.
Ultimately,
we think the preliminary injunction is symptomatic
of the problem,
it's not the problem itself.
-: So you don't have any suggested language
that would help us re-craft the PI?
-: It's clear that in no event could Massport seek
to impose liability on Turo for its users content.
We don't think there's any way
to adjudicate this aiding and abetting trespass claim
without looking at user content.
And I would just point the court
to the Ninth Circuit session in Carafano.
That said, you have
to look at what the essential published content
that underlies the claim.
Here, there are specific acts of trespass alleged.
And that comes directly from the user decision
to live Logan-
-: But I'm bringing you an opportunity
to rewrite the PI so
that your client doesn't fall amiss
when it violates the PI
and we don't end up enforcing an order against your client
that is inconsistent with the CDA,
and you're saying it's an all or nothing proposition?
Is that your position?
-: Well our client has already been required
to change what content can appear on its website.
To comply with the terms of the preliminary injunction,
it had to make sure
that no user listings could refer to Logan,
that required writing source code,
updating the backing servers
to essentially delete that content
or delete its appearance
on the screen from the user listings,
and block the ability of hosts
to lift that going forward.
Certainly if this court wished
to narrow the injunction,
it could eliminate any reference
to the user content,
but that wouldn't cure the underlying problem
with Massport's claim here.
And as I've mentioned,
it is frequently the case now
that litagimes seek to rely on the websites own content
or conduct in some way,
but the question
in every case is what's the essential content?
What is causing the harm?
If Turo had no content saying airport delivery is available
on its website,
Massport's harm would be exactly the same
because so long as users are able
to lift Logan at the delivery location,
they will choose that as a convenient option between them.
For those reasons-
-: That's not where they're going
for the transactions though.
It says on the,
that's not where they're going for the transaction.
The website doesn't just say airport pickup available,
it says airport pickup available
in all capital letters, just to make sure.
And then it has those really magic words,
skip the counter.
-: Of course, counters are located around the country,
not just at airports.
But I want to emphasize again,
that's not Boston Logan's specific language,
that's referring
to airports around the country
and there is no showing here
that that kind of language is independently actionable
or created Massport particular injury.
There's no allegation
that any of the particular users alleged
to trespass ever even viewed that language
or in any way relied on it in choosing
to transact or have their pickup occur at Logan.
So it's just not accurate
to suggest that somehow that's the language
that's causing Massport's harm.
Instead in every case,
what's happening is Massport is objecting
to the fact that individual hosts,
the car owners,
have decided to offer Logan delivery
and that is the direct link to what the harm
that Massport alleging in this case.
For those reasons, we think that there's just no way
to try to adjudicate aiding
and abetting liability without implicating Turo's duty
or role as a publisher of that user generated content.
And I would just emphasize again,
this is what every complaint
in every CDA case alleges now.
There is case after case around the country
considering things like this, encouragement claims.
We have sided a string site
on pages 11 and 12 of our replied rate
that confront these types of claims
and down the line reject them specifically
in recognition that it would undermine the broad immunity
that congress granted that was intended
to ensure that there would be a vibrant
and create an open commercial market place online.
-: Can I ask,
are there other airport cases out there?
Because I assume this is a nation wide problem
and every airport guards controls of its road vigorously,
so are there,
is the California one the only one out there so far
or are there are others that we should look into?
-: There are four cases currently pending.
There's San Francisco, SSO, LAX, and Tampa.
The only other court
that's considered the CDA issue is the one in LAX.
But I wanna emphasize
that it's not necessarily the case
that this kind of conduct
would be prohibited at all airports around the country.
Every airport has its own regulation
and its own permitting schemes
and so there is certainly no suggestion in this case
that this presents problems around the country
and that's not been formed out by the litigation here.
-: Okay, thank you.
Attorney Mackey.
-: Good morning.
I'm David Mackey
and with my two Anderson (indistinct) colleagues,
Melissa Allison and Christina Marshall represent the,
excuse me, the Massachusets Port Authority.
The superior court's decision describes
in detail the unlawful car rental business,
operated collaborative Logan by Turo
and vehicle owners like RMG
and I want to emphasize that the outset,
there is no real dispute here
that those vehicles owners
are violating the Massport regulation
against unauthorized commercial activity at Logan
and that they're trespassing.
Turo doesn't argue otherwise
and RMG Motors has chosen not
to appeal the injunction against it.
So, instead what's before the court is Turo's appeal
from the superior court's injunction prohibiting Turo
from aiding and abetting the vehicle owners illegal activity
at Logan.
And by way of background,
I wanna say here the record reflects
that this is not insignificant
or trivial misconduct by Turo and the vehicle owners here.
There were 8500 of these illegal Turo enabled transaction
at Logan in 2018 and 2019.
And it wasn't just a handful
of vehicle owners episodically conducting hand offs
at Logan.
It was 50% of Turo's business in the Boston area.
And in those two years, 2018 and 2019,
Turo netted by itself, independent of the vehicles owners,
more then a million dollars in revenue.
So again, that's-
-: Counselor, you're not arguing irrefutable harm here,
so why does this injunction not follow miss the CDA?
-: For two reasons, Your Honor.
We've argued first
that Massport's claims are based in substantial part
on Turo's own content
or on collaborative content, not solely
on content provided by third party vehicle owners.
And then secondly and independently,
and this is the basis for the superior court's opinion,
Massport's claims do not seek to impose liability
on Turo as a publisher.
But instead as an active participant and enabler
of these thousands of illegal rental car transactions.
Now, with respect to the-
-: Can I stop you there
and ask you is Massport claiming trespass by Turo itself?
-: We do have a claim
in the complaint for trespass by Turo itself.
That is not one of the claims
on which the preliminary junction was based.
The judge based the injunction decision
on aiding and abetting claim.
-: Mr. Mackey, could I,
Judge Wendlandt, are you done?
Sorry I didn't mean to cut you off.
Judge Wendlent: Go ahead.
-: There is.
-: Before you go Mr Mackey,
I have trouble understanding the,
whatever the CDA's scope.
Because it seems to apply not just
to you know sort of these blank websites
that provide Google where they put up everything,
but it somehow protects Airbnb
in certain context too,
even though they're doing something very similar, right?
So, the Airbnb cases
that go the opposite way,
the Kosinki case goes one way.
There are other cases
that go the other,
explain those to me because they seem
to be doing what Turo is doing.
They're creating a website,
they're profiting from the business,
they're structuring the content in some ways,
but they're still found to be protected.
So how do I distinguish the different ways
these Airbnb cases are being decided?
-: Well, the analogies are very apt.
An anology, Turo itself,
the superior court judge here described Turo as the Airbnb
of car rentals.
The HomeAway case in the Ninth Circuit,
the Airbnb case in San Francisco,
the Airbnb case in Boston are really on all fours
and really directly on point for this case.
And what they say is
that it may be the case
that these websites are protected from liability,
from publishing third party content.
And again, that's third party content on their website,
not their own content, third party content
on the website.
But they have no immunity.
And the cases have just been uniformed
in this respect.
For facilitating, actively participating,
processing these illegal transactions,
the immunity stops at the what we referred
to as the bulletin board function.
It does not extend to Turo,
Turo describes them as canceler services,
actually it's the core of Turo's business.
The active facilitation of these transactions.
I'd also say Justice Kafker
that this case in fact is-
-: But just to make,
Mr Mackey does every Airbnb case get decided against Airbnb
on this?
I mean, excuse me.
Does Airbnb have no protection in all the cases
under the CDA or sometimes it gets protected
and sometimes it doesn't
and I'm trying to get a sense of when it doesn't,
how do I distinguish those cases?
-: The one case,
I've mentioned the three; HomeAway,
Airbnb Boston, Airbnb San Franscisco.
Then there's a case La Park La Brea,
a federal district court case
in the Southern District California,
completely different.
La Park La Brea is not a case
brought by (indistinct) trying
to enforce regulations
against short term rental transactions.
La Park La Brea was a tortious interference claim
brought by a landlord against Airbnb
for tortuously interfering with the rental transactions
between the landlord and the tenants.
And the court there took great pains to emphasize
that what the core of the landlord's complaint
there was the posting of the third party content
on Airbnb's website.
The court goes on in a very, I think instructive way
to distinguish those claims,
where the core of the intentional interference claim
was the publication of third party content from
what was going in the previous case,
Airbnb vs. San Francisco,
where San Francisco was simply regulating Airbnb
for its active facilitation of illegal rental transactions.
So that, I guess La Brea is the one,
I'm sorry La Park La Brea is the one case that to the side,
but the claims are completely distinguishable
from this other body of case law as
that court recognizes.
-: Your sister relied on Backpage as the best case
to support her position.
Can you tell me your thoughts on that?
How do you distinguish that from this?
-: Yes, Ms. Wendlandt.
In our view, Backpage is actually the best case for us.
Really two reasons here.
First of all,
Backpage is, and it's like Lykose is also a case
in the first circuit, the Dyroff case in the Ninth Circuit.
These are classic bulletin board cases
where there is an internet platform
that allows the posting of third party content.
And Backpage Judge Selion in that case emphasizes
that all of the content,
with respect
to these advertisements for so called escort services,
all of that content,
and in particular the photographs of the escorts themselves
were provided by third parties.
Backpage had no involvement in that.
More to the point here,
Justice Wendlandt, Judge Selia emphasized
that you know,
it could be
that these online platform, at the end of the day,
play some active role
in facilitating the transaction itself.
And if they do that, they lose immunity.
If they do what Turo does,
they lose immunity.
And I think a helpful way
to think about Backpage here is if Backpage engaged
in conduct analogous to what Turo is doing here,
which is booking reservations, accepting payments,
providing customer service guarantees,
entering into contracts with escorts,
and entering into contracts with users.
I honestly have no doubt
that that case would have come out differently.
So, in that respect,
Backpage as we view it is the best case for us.
It's the classic CDA bulletin board case,
that's not the problem here.
-: Mr. Mackey, there are cases consistent
with Turo's position though, aren't there?
I think Turo is saying that,
"Well no one is required to do anything
because of what we have on our website."
It's all the user content
that brings people together to trespass.
We're not requiring anyone to do anything.
Are there cases consistent with that position?
-: We, Your Honor I don't believe there are.
Now, one thing,
I hope this goes to your question.
You know, Turo and the amicus
that have written on behalf on Turo have made this argument
that but for these third party listings,
if in fact they are third party listings,
that's really the core of this,
and that if we didn't have that,
then there wouldn't be trespass at Logan.
But that's the wrong question actually
because all of these cases Airbnb start
with an online bulletin board
and in some sense but for
that online bulletin board function,
there wouldn't be a lawsuit or claims.
What is different is all of these other things
that Turo does.
They call them answerably services
as if they are a trivial detail.
That is what makes this case so different
from Dirov, Backpage,
and the other classic bulletin board cases.
I don't believe there are any cases
that support Turo's view
that an online bulletin board
that is then so deeply engaged in the transaction,
and this makes it even much worse case for CDA immunity
then the rental platform cases.
Not only is it actively engaged
in the underlying transaction,
it's a party to those transactions.
Turo claims throughout its briefs
that all it's doing is connecting vehicle owners
and rental customers.
That's actually not the case at all
if you read the terms of service.
What Turo is actually doing is connecting itself
to vehicle owners,
and connecting itself to vehicle customers.
That's how the contractual relationship work
in this case.
It's just, it's so,
if you have a spectrum,
and I want to acknowledge the (indistinct) brief
by the Reporter's Committee for free press here,
we of course disagree with a lot of what is
in that brief,
but it does in a helpful way describe the spectrum.
Where on the one hand, you have bulletin boards
that are just purely, you know,
social media sites are classified as
that are protected by CDA immunity.
On the other end of the spectrum,
you have the vacation rental platforms
that are the bulletin boards,
but they do all this other stuff.
The fact that Turo itself is actually a party
to these contracts unlike the vacation platform,
they're not parties to the rental contracts.
Here Turo is a party to contracts
between owners and users
in our view pushes this case so far off the spectrum
of anything that could claim CDA immunity here.
-: Could I return, before we lose you to the irreparable harm
and the trust pass issue.
Because its, I'm a little confused by it.
So, we have cases
that say in the preliminary injunction context
that you don't need to prove irrefutable harm.
It just seems odd.
Trespass is this distinct category,
exempt from everything.
We've said that as opposed
to a permanent injunction context,
which is what your sister is arguing.
And which cases do that?
-: So Your Honor,
I think the key cases here are the SJC's decision
in Chesserown.
And that's a 1962 decision.
The SJC's decision in Forowni,
which is a early 1940's decision.
And then the appeals court decision
that follows those, the Franchy case in 1981.
And what those cases all say is
that with respect to trespass,
with respect to that infringement
on a landowner's rights in real property,
money damages are never sufficient.
-: But isn't Logan kind of,
isn't that a weird argument at Logan
because everyone can go to Logan.
It's not,
you just have to pay the piper.
You have to enter into an agreement there.
You know, Logan is a public place,
it just seems odd,
the harm to you,
I think two different kinds of harm.
One, you're not getting paid
and they're running essentially a run
around the rental car business
and two your roadways are being used
in ways that may create environmental damage
or traffic congestion.
But you're not,
did you not argue irreparable harm to the,
it seems like you could have established
on the environmental and public safety grounds,
that allowing this kind of stuff to go on.
Uber and Lyft are classic examples.
We got many more car sitting out here
and I know how precious those roadways are to them.
But you didn't argue that to them?
Are we left with this all or nothing trespass argument?
-: No, not at all.
So it's really two issues.
We identify in the residential context for example.
If your neighbor decided they wanted
to park their car in your front yard
or they wanted to park their car in your driveway,
that infringes to a very considerable extent
in the residential context on aesthetic interest
and privacy interests and potentially safety interest.
And the neighbor isn't gonna be able
to argue on those cases,
well you were at work so you barely saw it.
Those are very significant interests to your property.
Money damages,
the key point is money damages cannot repair a trespass
because if money damages could repair a trespass,
then what you've got is private eminent domain.
And that's exactly Justice (indistinct)
what the Cheshorone case says,
what the appeals court said in 1981.
Money damages are not adequate to repair a trespass.
-: I get in the private context.
If my neighbor is parking his car
in my driveway all day long,
that's a harm to me that I don't need,
it's obvious.
But Logan's a little different.
You know, it has 41 million passengers a year so,
you know, I don't know how many car trips a year.
30 million car trips a year to Logan,
so its not a conventional trespass but-
-: Your Honor, we disagree
that it is not a conventional trespass.
I referenced the interest
that a residential homeowner may have.
Logan Airport has similarly compelling interests
in protecting its property.
And they might not be aesthetic interests,
they may not be privacy interests.
But at Logan Airport,
it's congestion, it's safety,
it's statutory obligation
to be able to maintain control
and regulate that facility
and it keeps-
-: But do we have the ability based on this record
to say if we disagree with you,
that no irreparable harm is required
in this kind of public trespass?
That there still is irreparable harm here
or are we have to send that back to the trial judge
to do that.
-: There is reparable harm here.
I mean, Your Honor,
first of all trespass
to real property is per se irreparable harm.
It cannot be remedied by money damages.
So beyond that,
there is irrepealable harm to Massport's ability
to manage its own facility.
Massport can't be put in a situation where it's only able
to regulate after a two
or three year piece of civil litigation has gone by.
-: Doesn't Justice Davis actually touch upon that
when he (indistinct) the balancing of harms?
-: He does.
In the balance of harms,
he says plainly tips
in Massport's direction here Justice Lowry,
for the reasons that I described
that this is a direct assault on Massport's ability
to operate, manage, and regulate Logan Airport,
which it cannot endure for the several years
that it takes for litigation
to progress through to the superior court.
-: I think we're gonna have to say that's it.
Thank you very much
and we'll call the next case.
-: Thank you Your Honors.
Honor Kimberly: Thank you.