Law360 (May 29, 2026, 3:28 PM EDT) -- The First Circuit has ruled that the superintendent of the Massachusetts state police is immune from civil rights claims in a proposed class action over the use of a Motorola app that secretly records phone conversations.

The plaintiffs cannot rely on generalized assertions of hypothetical future harm to overcome sovereign immunity, the appeals court found, reversing a district court judge who had denied the state's motion to dismiss the claims against Geoffrey Noble in his official capacity.

"Nothing before us suggests that the plaintiffs are likely to be harmed in the future from the MSP's record-and-withhold program," Circuit Judge Seth R. Aframe wrote for the court.

The plaintiffs — Jason Courtemanche, Brett Foresman, Juan Rios and Dennis Williams — filed suit in 2024 against Motorola Solutions and Callyo 2009 Corp., the corporate entity behind the Callyo app, along with Noble's predecessor. They say they were secretly recorded at various times in 2022.

The complaint alleges that even after being made aware in 2017 that the app was making secret recordings in violation of the state's wiretap law, Motorola did not address the issue, and state police continued to use information collected in phone calls to build criminal cases at least 181 times.

The plaintiffs also allege that prosecutors who were handling their cases were never advised of the recordings, violating their Sixth and 14th Amendment rights.

The state sought dismissal of claims against the state police superintendent based on sovereign immunity.

U.S. District Judge Margaret Guzman found that the U.S. Supreme Court's holding in Ex parte Young, which allows for a case against the government to proceed where there is an ongoing violation, created a path for the litigation to move forward. The judge said that since she was not provided with "unequivocal" evidence that the recording program had been stopped, she could not rule out future harm.

The First Circuit, however, said that omission is not enough to establish an injury, and therefore standing.

"The complaint contains no allegation that the plaintiffs were convicted of the charges derived from the surreptitious recordings, that there were charges pending against the plaintiffs when they filed their complaint, or that such charges were certainly impending," Judge Aframe wrote for the court. "Instead, the complaint mostly describes the violations underlying the plaintiffs' claims in the past tense except for the final allegation for each count."

The judge characterized those allegations as "boilerplate assertions that the plaintiffs have 'suffered and continue to suffer substantial past and future harm' because of the MSP's actions."

The plaintiffs must show a likely future, concrete injury in order to obtain prospective relief, the court said.

"The plaintiffs' complaint, which speaks almost entirely in the past tense, could establish standing for retrospective relief related to their past prosecutions to the extent that they were affected by the record-and-withhold program," Judge Aframe wrote for the court. "However, retrospective relief is unavailable here; the plaintiffs may seek only prospective relief consistent with the 11th Amendment and Ex parte Young."

Even if the program is ongoing, the court said, the suggestion of future harm is "nothing more than a 'generalized grievance' that the program violates the law." The complaint does not address how the ongoing practice affects the plaintiffs differently than anyone else in Massachusetts who might have objections to the secret recordings, according to the ruling.

"The plaintiffs have drawn attention to what may well be a flawed program, but they have not alleged that they 'personal[ly]' are likely to be victims of it in the future," the judge said. 

"Moreover, to the extent the plaintiffs' complaint suggests that the plaintiffs are specific targets of the record-and-withhold program, the claim is too hypothetical," the court said.

The claims against the state police also cannot be saved by the prior prosecutions against the plaintiffs and many others, the court said.

The claims in the district court against Motorola and Callyo have been on hold while the state's appeal was pending. The two entities were not parties in the interlocutory appeal.

Messages seeking comment from the state and from counsel for the plaintiffs did not immediately receive responses on Friday.

Judges Seth R. Aframe, Kermit V. Lipez, and Jeffrey R. Howard sat on the panel for the First Circuit.

Noble and the state police are represented by Jeffrey T. Collins and Robert Papandrea of Morgan Brown & Joy LLP.

The plaintiffs are represented by Erik P. Bartenhagen of Bartenhagen Law PLLC, by Christopher R. Batinsey of Batinsey Legal PC, and by James O'Connor Jr. and Christopher J. Walton.

Motorola is represented by Alycia M. Kennedy and Howard M. Cooper of Todd & Weld LLP and Lori B. Leskin and Michael Kim Krouse of Arnold & Porter Kaye Scholer LLP.

The case is Courtemanche et al. v. Noble et al., case number 25-1386, in the U.S. Court of Appeals for the First Circuit.

--Editing by Philip Shea.

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