SCOTUS Denies Certiorari, Lets Win Stand

January 18th, 2022

     The Supreme Court denied a petition for a writ of certiorari today on an issue of preemption, where CCL represented the plaintiffs in opposing review. 

     In Edward D. Jones & Co., L.P. v. Anderson, No. 21-552, the financial management firm sought Supreme Court review of a Ninth Circuit decision that the plaintiffs' claims were not preempted by the federal Securities Litigation Uniform Standards Act (SLUSA), which was enacted to cover lawsuits based on the purchase or sale of a covered security. The Ninth Circuit had held that, when Edward D. Jones switched the plaintiffs from commissioned-based fees on their investments to an annual management fee arrangement, the complaint about the higher fees was unrelated to purchases or sales. The plaintiffs were "buy and hold" investors, which means that after making their original purchases they largely rode the market, rather than engage in frequent trading. As a result, their accounts generated very few commissions. The annual management fee, on the other hand, taxed clients a percentage of their investment, guaranteeing income to the firm.

     Lawyers for Edward D. Jones argued that the federal appellate circuits had split on whether the litigated issue had to "coincide with" or be "material to" a purchase or sale and asked the Supreme Court to settle that issue through this case. CCL's brief in opposition to certiorari argued that the issue in the case was utterly unrelated to a purchase or sale and thus provided no occasion for the Supreme Court to take up the issue. In representing the plaintiffs, CCL joined Franklin D. Azar & Associates, who had won the case in the Ninth Circuit. 

Peck Blogs about Arguing in the Age of COVID

January 16th, 2022

  In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about the uncertainty counsel often faces about whether arguments will be in-person or remote during the COVID-19 pandemic. While preparation remains largely the same, the dynamics vary between the two, which he demonstrates through several anecdotes. The post is Arguing in the Age of COVID

CCL Assists on Judicial Funding Brief in Washington State

January 14th, 2022

     In an opening brief filed today, plaintiffs in a number of pending civil cases facing unreasonable delays asked the Washington Supreme Court to hold that they have standing to bring an action against the State over inadequate funding of the state courts. Their case about judicial funding was filed last year, but was dismissed by a trial court with an opinion or explanation. The plaintiffs, represented by Stritmatter Kessler Koehler Moore and CCL, sought direct review in the state supreme court.

     The brief notes that Washington's chief justices have long pleaded with the Legislature for more funding, noting that the state's trial courts ranked 50th out of 50 in per capita funding. The brief invoked the state constitutional guarantees of access to the courts "without unnecessary delay" and jury trials to argue that systemic issues prevent courts from hearing cases in a timely manner. They further argued that the system of separation of powers empowers the courts to assure adequate funding. 

      In Washington, half of judicial salaries at the trial level are paid by the state, while counties are responsible for the other half. By statute, the state legislature imposed half of all other costs on the counties as well. A popular referendum, however, required the state to pay all costs of additional judges added by the state. Nonetheless, the lawsuit argues that the provision of justice is ultimately a state responsibility and cannot be dependent on the ability of counties of uneven wealth to finance it. In this respect, the lawsuit is similar to school finance cases that have succeeded in Washington and other states. 

      A response brief, arguing in favor of affirming the dismissal, will be filed by the State February 25. 

Blog Post Welcomes Readers to 2022

January 2nd, 2022

     In a post on the Appellate Advocacy Blog, CCL President welcomed readers to 2022 with some predictions about high-profile cases likely to be resolved in 2022. The post is available here: Welcome to 2022.

CCL Files Amicus Brief in Support of Hoboken's Climate-Change Lawsuit

December 19th, 2021

     The U.S. Conference of Mayors and the National League of Cities emphasized federalism considerations in an amicus brief filed in the Third Circuit in support of the City of Hoboken, New Jersey's climate-change lawsuit, seeking damages for infrastructure injuries due to oil companies' false claims about gasoline emissions. CCL filed the amicus brief along with Janet, Janet & Suggs.

      The defendant oil companies moved the case from state court to federal court and resisted the return of the case to New Jersey state court on claims that it constituted a federal cause of action. The amicus brief filed today explained that municipalities, like all other plaintiffs, are masters of their complaint and have a right to choose the court in which their state-based claims are heard. 

Peck Offers Appellate Advice When a New Precedent Misses One that Could Have Changed the Results

December 19th, 2021

    In his latest post on the Appellate Advocacy Blog, CCL President provides some suggestions when it appears an appeal was derailed by a new decision that somehow fails to account for a contrary precedent because neither the court nor the advocates apparently found the earlier case. What Do You Do When a Superior Court Misses a Conflicting Precedent.

CCL Urges Supreme Court to Reject Cert Petition in Investors' Lawsuit

December 15th, 2021

      Representing investors who sued Edward D. Jones (EDJ), the financial management company, a CCL brief urged the Supreme Court to deny certiorari after the Ninth Circuit held that the case could move forward. 

      As co-counsel with Franklin D. Azar and Associates, CCL represents a putative class of passive investors, who purchase stock and then hold it while its value appreciates. They held their investments at EDJ, which only charged commissions when the stocks held were traded. Because these investors rarely traded, EDJ did not make any profit on the funds held. To make these investments generate money, EDJ convinced the investors to switch to annual management-fee accounts that charged them for "advice" on maintaining or increasing their investments. Although no advice was ever given, the cost to investors was substantially greater.

     The investors then sued under state law, arguing that EDJ's failure to conduct a suitability analysis before pushing for the change in the accounts. EDJ countered by arguing that federal Securities Litigation Uniform Standards Act (SLUSA) preemptively barred any lawsuits. A federal district court sided with EDJ and dismissed all claims with prejudice. The Ninth Circuit, however, unanimously reversed, finding that the claims were not premised on the sale or purchase of a security, a requirement for application of SLUSA, but instead on fees charged for passive accounts.

      EDJ argues that the federal circuit courts are in disagreement about what constitutes a qualifying sale or purchase, with some relying on Supreme Court precedent that the basis of the lawsuit must merely "coincide" with a sale or purchase, while others rely on subsequent Supreme Court precedent that requires the complaint topic be "material" to a purchase or sale. In its opposing brief, CCL argues that the dispute between "coincide" or "material" is irrelevant to this case because the gravamen of the complaint has no connection at all with a sale or purchase. 

     An EDJ reply brief is expected in early January. Afterwards, the Supreme Court will review the case in conference to determine whether to take up the matter.

CCL Joins Fitch Law on Reply Brief Challenging Damage Cap

December 13th, 2021

     CCL joined with the Fitch Law Firm on a reply brief that argued that a state statutory limit on damages should not apply to a young teenager's case against a man who raped her 34 times.

      The case, Brandt v. Pompa, involves a defendant convicted of repeated rapes of young girls, where his own daughter would invite them for a sleepover during which they would be drugged and raped. A jury hearing the civil case returned a verdict of $20 million in compensatory damages for the now-26-year-old plaintiff, who was traumatized and went homeless for a period while trying to recover from the emotional toll she suffered. Under a state law, however, that $20 million verdict was reduced to $250,000 under a state tort reform law. The plaintiff challenged the law's constitutionality, both as applied and on its face.

      Represented by a large law firm, the defendant argued that the case was moot because the defendant could never pay the verdict and that the law serves compelling state interests identified by the Ohio General Assembly that should receive deference from the state Supreme Court. Those arguments were echoed in briefs filed by the U.S. Chamber of Commerce and other business interests. The Ohio Attorney General also filed an amicus brief in support of the law, indicating that a change, which he supported, should be enacted by the legislature to assure that the law does not reach this situation, but that the courts have no business making that determination.

      In reply, the plaintiff's brief explained that collectibility is not a consideration in determining mootness, which could have been raised at the trial level, if it were a valid basis for avoiding a decision. It further explained that applying the damage limit to this case served no valid state purpose, as there is no interest in protecting rapists from valid judgments, no economic interest that serves the State in applying the cap here, and no basis for claiming that stability in the justice system is enhanced by capping these damages.

       Oral argument in the case is likely to be scheduled in the Spring.


CJRI Board Meeting Highlights Paper on Civil Juries

December 11th, 2021

     Highlighting some of its achievements of the past six months, the Civil Justice Research Initiative (CJRI) at Berkeley Law School began its biennial advisory board meeting with a discussion of key findings in a paper on civil juries, co-authored by CCL President Robert S. Peck, along with law professors Richard Jolly and Valerie Hans. The paper, published in November, provided a history of civil juries, a review of key precedents on the use of juries, and empirical data on the negligible number of jury trials being held, while studies uniformly confirm that jurors do a good job. It also contains recommendations on how to revive this necessary institution.

    All three authors are members of the advisory board at CJRI, an initiative started by Berkeley Law Dean Erwin Chemerinsky.

Peck Picks Out Appellate Tips from Supreme Court Abortion Argument

December 5th, 2021

      Highlighting excellent appellate advocacy in the Supreme Court argument over Mississippi's abortion case, CCL's Robert S. Peck highlighted some of the best advocacy moments during the argument in a post on the Appellate Advocacy Blog. The post discusses Can an Oral Advocate Learn Anything from Last Week's Supreme Court Hearing on Abortion?