News

Federal Court Holds Prep Act Does Not Apply to the Non-Use of Countermeasures, Remands Case to State Court

October 22nd, 2021

     In a case in which CCL assisted the Levin Perconti law firm, a federal judge in Illinois granted the plaintiffs' motion to remand the case to state court where the defendant nursing home had removed it to federal court. Martin v. Petersen Health was brought on behalf of a nursing home resident who died as a result of exposure to COVID-19. The defendant removed the case to federal court, claiming that it was acting on behalf of the federal government and that the federal PREP Act completely preempted the cause of action.

     In rejecting both claims, the federal court found that nursing homes were highly regulated but under Supreme Court precedent the homes cannot claim to be operating at the direction of a federal officer by complying with regulations. It further held that the PREP Act provides an exclusive remedy in federal court in Washington, DC for lawsuits based on the administration or use of approved countermeasures during a national health emergency. However, it does not provide a defense for the non-use of those countermeasures, as plaintiffs had pleaded. The court ordered the case returned to state court, where the defendant was free to assert any federal defenses it might have.

CCL Argues Personal Jurisdiction Issue Before En Banc Proceeding in the Fifth Circuit

September 21st, 2021

     CCL President Robert S. Peck told an en banc panel of 17 judges in the Fifth Circuit that the application of an "at-home" requirement as a matter of due process renders Federal Rule of Civil Procedure 4(k)(2) a nullity and unconstitutional in all its applications during oral argument in Douglass v. NYK Line. A federal district court in New Orleans had thrown the case out because it held that a 2016 precedent in that circuit had added the "at-home" requirement. After a panel upheld the ruling based on that precedent but urging the Court to rehear the case to reconsider the 2016 ruling, the court granted a petition to rehear en banc to do just that.

     The case arose after a larger container ship operated by a Japanese company struck a U.S. Navy destroyer in the Sea of Japan, resulting in the deaths of seven U.S. sailors and injuries to 40 others. Representing the injured parties, along with the Koonz McKinney law firm of Washington, DC, Peck explained that Rule 4(k)(2) was adopted, with the agreement of the Supreme Court and the Congress, to address precisely these situations. It provides federal personal jurisdiction over defendants in federal causes of action where no state court can assert jurisdiction over the parties. To satisfy due process, all that is required are sufficient continuous and substantial contacts on a national basis, Peck said. However, no defendant can be "at home" in the United States and still not be subject to state-court jurisdiction.

    Peck further argued that the rule has especially important application in admiralty cases, like this one, where U.S. courts have exercised jurisdiction over the course of more than two centuries as a function of international law applicable to maritime nations. 

    The case now is under advisement, awaiting decision by the 17-judge court.

CCL Files Reply Brief in Support of Preliminary Injunction of Florida Law

September 17th, 2021

    Representing three plaintiffs seeking a declaration of unconstitutionality of a new Florida law that restricts the marketing and solicitation efforts of roofing contractors, CCL told a federal court that the law is aimed at discouraging homeowner claims for roofing damage, rather than its purported purpose of dissuading fraudulent claims. The case, Restoration Association of Florida v. Brown, was filed in the U.S. District Court for the Northern District of Florida.

    CCL moved for a preliminary injunction against a number of provisions in the law, all of which are designed to limit information about homeowners' insurance policies and their coverage by prohibiting roofing repair advertising that encourages homeowners to make an insurance claim, even if the policy covers that repair. In addition, it prohibits contractors from offering a "thing of value" such as a gift card or discount to encourage a homeowner to hire a roofing contractor in instances where an insurance claim might be made. It further prohibits roofing contractors from interpreting or advising the homeowner about an applicable insurance policy, prohibits payments for referrals where an insurance claim will be made, and makes the contractor the responsible party if a third-party violates legal requirements before a repair is referred to the contractor. 

   CCL has argued that most of the provisions violate the First Amendment. The State of Florida has defended by claiming that there is a close and obvious connection between the prohibitions and preventing fraud, but CCL's reply brief shows that there is none. In fact, Florida put in evidence that 90 percent of the time no fraud occurs when insurance claims are made for roofing replacement or repair. Florida homeowners have significant needs for those services because it is subject to frequent instances of severe weather, such as hurricanes.

    The court is expected to schedule a hearing on the preliminary injunction.

CCL Amicus Brief for Local Government Groups Supports Baltimore in Fourth Circuit

September 14th, 2021

    CCL filed an amicus brief arguing that cities, no less than any other plaintiff, have a right to choose their causes of action and litigate in state court without being removed to federal court. The case, Mayor and City Council of Baltimore v. BP, is currently before the U.S. Court of Appeals for the Fourth Circuit on remand from the U.S. Supreme Court. The issue is whether any of the remaining grounds asserted by the defendant oil companies constitute a federal cause of action that should be heard in federal, rather than state, court. The Fourth Circuit had previously held that one ground, that the oil companies were acting at the direction of the federal government when they allegedly created a public nuisance and deceived the public about the climate-changing properties of fossil fuels, did not justify removing the case from state court. It further held that the statute that permitted that appeal, restricted the appeal to that issue.

     Subsequently, the Supreme Court ruled that all grounds for removal were subject to appeal when an order covers both federal officer removal justifications and other ones. 

     In its brief on behalf of the National League of Cities, U.S. Conference of Mayors, and International Municipal Lawyers Association, CCL argued that the oil companies were wrong to claim that the state law causes of action were a disguised form of federal common law, that the federal Clean Air Act explicitly did away with federal common law in this field and opened the door to state lawsuits seeking to remedy localized harms, and that the lawsuit did not seek to remedy climate change, but instead sought compensation for distinct effects that Baltimore suffered.

    The defendant oil companies will have an opportunity to file a reply to Baltimore's brief and all amicus briefs supporting it before the case is scheduled for oral argument.

     

Berkeley Law Civil Justice Research Initiative Publishes Civil Jury Paper

September 13th, 2021

     The Civil Justice Research Initiative at Berkeley Law School published a new paper on reviving the civil jury that describes the history, legal issues, and empirical research on civil juries with an eye toward making better and greater use of juries. The paper was written by Richard Jolly of Southwestern Law School, Valerie Hans of Cornell Law School, and CCL's Robert S. Peck.

      The paper shows that juries are an essential part of American democracy, are often subjected to unwarranted disrespect, and are very good at doing their assigned tasks according to the best available empirical research. The paper, "The Civil Jury: Reviving an American Institution," concludes with recommendations that the option of a jury trial should be the default rule, rather than merely available upon request; that damage caps be eliminated; that expanded expedited jury trials using 12 jurors take place; that more be done to assure representative juries; that 12-person juries be the norm; and that active measures, such as permitting jury notetaking and questions, be adopted.

     The paper is available at The Civil Jury: Reviving an American Institution.

Blog Post Discusses Appellate Tips from Fourth Circuit Webinar

September 12th, 2021

    In a post to the Appellate Advocacy blog, CCL President Robert S. Peck discusses some of the tips that judges and practitioners offered on a webinar sponsored by the U.S. Court of Appeals for the Fourth Circuit. The blog is part of the law professor network. Peck posts on Sundays every two weeks. His latest post can be found at Tips for Appellate Practice, Fourth Circuit Edition, Part 1.

CCL Files Local Government Groups' Amicus Brief in First Circuit

September 3rd, 2021

     CCL President wrote and filed a brief arguing that no conception of federal common law justified removal of the State of Rhode Island's case against major oil producers for the in-state consequences of their misrepresentations about fossil fuels. The State had sued the companies on grounds of misrepresentations in state court on state causes of action, but the defendants had removed the case to federal court.

     In this second visit to the First Circuit, which originally held that the oil companies had no claim to federal jurisdiction by asserting that they had done what they were accused of at the direction of the federal government, the appellate court is reviewing other claimed bases for federal-court jurisdiction. This time around, the defendants rely heavily on a claim that because climate change is a global issue, it requires the courts to apply federal common law, rather than state law.

     The amicus brief filed today on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, argued that whatever federal common law may have once existed was displaced by the Clean Air Act, which gives the states a role in combating the local effects of air pollution. States, it further argues, have a right to bring state causes of action in state court, just as any other plaintiff does, subject to the defendants' claims of ordinary preemption, which provides no right to remove a case to federal court.

Peck Writes Blog Posting on Overturning Precedent

August 29th, 2021

     In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about different strategies for arguing against the application of adverse in-circuit precedent. 

     The blog post is available at What To Do When Faced With Adverse In-Circuit Precedent.

Judge Sets Briefing Schedule in CCL Challenge to Texas Medical-Malpractice Cap

August 27th, 2021

    Judge Lee Yeakel set a schedule for briefs and argument in a case challenging the cap on medical-malpractice damages that Texas enacted nearly 20 years ago. In Winnett v. Frank, CCL has joined with Hartley Hampton of Hampton & King to argue that the cap violates the Seventh Amendment's right to trial by jury. 

    At a status conference requested by the parties, Judge Yeakel gave each side an October 20th deadline for opening briefs and a December 3 deadline for reply briefs. The case will be argued in January.

    Texas amended its state constitution to permit the legislature to enact the damage-cap statute. As a result, the only test of its constitutionality available is through the U.S. Constitution. In recent years, the Supreme Court has found that parts of the Bill of Rights that had not been applied to the States are "incorporated," by the Fourteenth Amendment's due-process clause. One of the outlier individual rights that has yet to be applied to the states is the civil jury-trial right. Winnett seeks to correct that oversight and invalidate the damage cap.

CCL Urges Supreme Court to Revive Civil Rights Lawsuit

August 26th, 2021

     CCL urged the Supreme Court to revive a civil-rights lawsuit filed on behalf of a disabled person that had been dismissed because the plaintiff only suffered emotional-distress damages. CCL's amicus brief was filed on behalf of the American Association for Justice in Cummings v. Premier Rehab Keller, which the Court will take up in the coming term.

     Under the Rehabilitation Act, recipients of federal funds are obligated not to discriminate against persons with disabilities. In this case, a woman who needed a sign language interpreter sought physical therapy from the defendant, a recipient of federal funding, but was turned away because of the request for an interpreter. She tried going to another physical therapy provider, but found it ineffective. The defendant was the only local provider capable of what she needed. When she returned and was again refused service, she sued. 

     The federal district court found that she had no cognizable damages, having only sued for the emotional distress she suffered. It likened emotional distress damages to punitive damages, which the Supreme Court had held were unavailable for statutes like the Rehabilitation Act, which could only provide remedies similar to those available in contract cases because the federal funding created a contract-like obligation. The U.S. Court of Appeals for Fifth Circuit affirmed, but lodged its reasoning in the rarity with which emotional-distress damages are awarded in contract cases and because those scarce instances would not have provided defendants with notice of these damages being a consequence of its discriminatory act.

    While the plaintiff, remedies scholars, and the U.S. government all focused briefs on the long tradition of emotional-distress damages being available in contract cases, particularly where the breach of contract was likely to cause distress, CCL's brief demonstrated that the underlying bias against emotional-distress damages was ill-taken. It showed that empirical studies demonstrate that juries do a good job assessing the damages, align closely with the severity of the injury, and largely duplicate the assessments that are made by judges in bench trials. It said that the assumption held by the lower courts and by the defendant that emotional-distress damages are unbounded because they have no discernible market value was wrong in practice and should not influence the legal determination before the Court.