News

Federal Court Denies Wells Fargo Motion to Dismiss in Fair Housing Case

June 15th, 2018

     In City of Oakland v. Wells Fargo & Co., federal district court judge Edward Chen denied Wells Fargo's motion to dismiss the City of Oakland's fair housing complaint against the banking giant for a pattern of discrimination in mortgage loans given to minority home buyers. CCL President Robert S. Peck represented Oakland in the argument last December and wrote the principle section of the brief.

     Oakland raised similar allegations against Wells Fargo as did Miami, also represented by Peck in the U.S. Supreme Court last term. In Bank of America v. City of Miami, the Supreme Court held, 5-3, that cities have standing to bring fair housing actions for lost property taxes, remediation expenses, and depletion of its fair housing resources, but asked the lower courts to determine, in the first instance, the contours of the Fair Housing Act's proximate cause requirement at the pleading stage. The Miami case was returned to the Eleventh Circuit for that determination and received simultaneous briefing from the parties (Miami, Bank of America and Wells Fargo) on April 30.

     In the Oakland case, Judge Chen held that the city had sufficiently pleaded a direct connection between its lost property taxes and the Bank's allegedly discriminatory practices. He also found the city's claim for injunctive relieve satisfied the relevant proximate cause standard. Its claim for damages for its monetary expenditures was dismissed without prejudice so that it could be re-pleaded to specify the expenditures attributable to Wells Fargo. The court also dismissed without prejudice for re-filing the city's claim for harm to its goal and programs advancing fair housing. 

    When the Supreme Court handed down its decision last term, both sides claimed victory. To date, CCL has prevailed on the proximate cause issue in each of the cases in which it represents a city bringing a fair housing case.

Congressional Staff Receive Preview of Supreme Court Cy Pres Case

June 8th, 2018

      Congressional staff heard differing views about the Supreme Court's likely approach to cy pres next term in Frank v. Gaos. CCL President Robert S. Peck suggested that the Supreme Court is likely to take a very narrow view of the issue, based on the facts in the case. Peck presented, along with Adam Schulman, a lawyer with the group headed by Petition Ted Frank, who brought the challenge. The event was sponsored by the Congressional Civil Justice Academy, a part of the Law and Economics Center at the Antonin Scalia Law School at George Mason University.

      In Frank, the Ninth Circuit upheld a class action settlement that grew out of the information that Google acquired, used and distributed when Internet surfers use that search engine. Though the damage suffered by uninformed surfers was difficult to monetize and the case itself was three times challenged with motions to dismiss, a mediator suggested the settlement that both sides accepted. As part of the settlement, Google agreed to provide a permanent disclosure of what information it collects and how it uses it. In addition, Google agreed to pay compensatory damages of $8.5 million. After attorney fees, costs, and incentive compensation for the named class representatives, the court was left with $5.3 million to be distributed to 129 million class members, an average of 4.1 cents apiece. The court determined that distribution was infeasible given that a process for proof of claim and the process of sending checks would cost substantially more than the four cents each claimant was owed. Instead, the court entertained proposals for non-profit organizations that work in the area of Internet privacy as alternate recipients. 

     The organizations suggested provided the court with proposals about how the money would be spent to advance Internet privacy. After a seven-month process of examination, the court approved each of the organizations as highly qualified, even though it lamented that the groups were the "usual suspects" on this subject. Objector Frank proposed an alternative approach that would compensate only some members of the class at a $5 or $10 rate given the low claiming rate that might be accepted. While the Ninth Circuit held that that approach would have been acceptable, it found nothing wrong with the use of cy pres to send the money to the organizations, utilizing the deferential abuse of discretion standard of reviewing the trial court. 

      The Supreme Court will consider whether the approach approved by the Ninth Circuit comported with Rule 23's requirement that class action settlements be fair, reasonable and adequate.

Plaintiffs File Briefs in Support of Class Certification, in Opposition to Challenge to their Experts in Chicago Stop and Frisk Case

May 30th, 2018

      As part of a team of plaintiffs' lawyers, CCL participated in the writing and filing of briefs representing a proposed class of minority residents who were stopped-and-frisked by Chicago police without probable cause. The City of Chicago challenged class certification of the class, as well as the expert evidence in support of certification. Two briefs responded to Chicago's objections. 

Peck Attends ALI Annual Meeting

May 21st, 2018

    CCL President Robert S. Peck attended the 2018 Annual Meeting of the American Law Institute in Washington, DC on May 21-22. At the meeting, members debated and approved new Restatements of the Law on Liability Insurance and Intentional Torts to Persons. In addition, the ALI made further progress on the Restatement on tort liability for economic harm. THE ALI publishes the final restatements, which are very influential in the states in how the law might be modernized. ALI members are experienced lawyers, judges, and academics.

     In addition to the work of the ALI, Justice Ruth Bader Ginsburg was awarded the Henry J. Friendly Medal for her contributions to the law. Chief Justice John G. Roberts, Jr., a former law clerk to Judge Friendly, presented the medal to Justice Ginsburg. At an evening session, attendees were treated to a conversation between Justice Elena Kagan and former Solicitor General Paul Clement about the workings of the Solicitor General's office, moderated by Duke law dean David Levi.

CCL's Robert Peck Attends AAJ Leaders Forum Retreat in Ireland

May 18th, 2018

     CCL's Robert S. Peck attended the Annual Leaders Forum Retreat held by the American Association for Justice in Einskerry, County Wicklow, Ireland. The retreat, at which Peck has served as a speaker in the past, featured prominent Irish legal figures speaking about their civil justice system. 

District Court Stays Discovery Pending Mandamus Petition

May 16th, 2018

     Within a couple of hours of the filing of opposing counsel's brief, U.S. District Court Judge James Moody, Jr. issued an order staying discovery in Griffen v. The Supreme Court of Arkansas, pending a decision by the Eighth Circuit on CCL's petition for a writ of mandamus.

     Arkansas trial judge Wendell Griffen challenged his permanent recusal in death penalty cases after blogging and participating in two public protests on the issue and during part of which a case was pending before him. Upon an emergency petition filed by the state attorney general, the Arkansas Supreme Court issued the recusal order. The pending case was reassigned and the succeeding judge issued an order similar to the one Judge Griffen originally signed prior to his recusal.

    Judge Griffen filed a federal challenge to his recusal, naming the state supreme court and each of its justices as defendants. CCL represents the court, its chief justice, and two of the other justices. In response to motions to dismiss, federal judge Moody dismissed the Arkansas Supreme Court from the action, but permitted the case to continue against the individual justices. On behalf of all justices, CCL filed a petition for a writ of mandamus in the U.S. Court of Appeals for the Eighth Circuit. The Eighth Circuit ordered a response from Judge Griffen, and CCL filed a reply brief earlier this week.

     CCL also moved for a stay of discovery during the pendency of the mandamus petition. It was that motion Judge Moody granted Wednesday.

CCL Files Reply Brief in Support of Mandamus Petition

May 14th, 2018

      Today, CCL filed a reply brief on behalf of all justices of the Arkansas Supreme Court in support of their petition for a writ of mandamus in Griffen v. The Supreme Court of Arkansas. The case asserts that a trial judge's civil rights were violated by an order of recusal issued by the Supreme Court. CCL represents the Court and three of its justices.

      The U.S. District Court dismissed the Arkansas Supreme Court from the action on CCL's motion, but maintained the lawsuit against the justices in their official capacity. A petition for a writ of mandamus was filed in the U.S. Court of Appeals for the Eighth Circuit, arguing that the case should not be permitted to go forward. In reply, the state trial judge argued that the recusal order amounted to an administrative personnel action against him, but today's brief demonstrated that the Supreme Court order had all the earmarkings of a judicial decision, immune from collateral attack in federal court and that recusal does not diminish or otherwise adversely affect a judge's office.

CCL Moves to Stay Discovery Pending Disposition of Mandamus Petition

May 2nd, 2018

     One day after the Eighth Circuit indicated interest in the Petition for a Writ of Mandamus on behalf of justices of the Arkansas Supreme Court, CCL, on behalf of the seven justice of that court, filed a motion to stay discovery pending resolution of the justices' petition. 

     The federal judge presiding in the case had previously granted a temporary stay while the justices' motion to dismiss was pending. The current motion seeks the same treatment.

Eighth Circuit Orders Response to Mandamus Petition

May 1st, 2018

     A week after CCL filed a Petition for a Writ of Mandamus, the U.S. Court of Appeals for the Eighth Circuit ordered opposing counsel to file a response in the ongoing litigation between a state trial judge and members of the Arkansas Supreme Court. 

     The judge had sued the state's highest court and its justices, challenging a recusal order issued by the Supreme Court after the judge had participated in two public protests and commented in a personal blog on matters that came before him. The Arkansas Attorney General moved for the judge's recusal, and the Court granted it, making the reassignment from the cases a permanent one. The judge then sued in federal court, arguing that his rights were violated by the recusal order.

     In response to a motion to dismiss filed by CCL, the federal court dismissed the Arkansas Supreme Court from the action, holding that it was ineligible to be sued due to sovereign immunity. The judge, however, allowed the case to continue with the justices as defendants, which prompted a joint petition for mandamus. Mandamus is considered an extraordinary remedy, and opposing counsel does not need to respond to it unless requested by the appeals court. Here, the court did just that, requiring a response as soon as was convenient. That order is considered a good sign that the Eighth Circuit could take up the request for mandamus.

CCL President Attends ABA Amicus Committee Meeting

April 30th, 2018

  As a member of the committee, CCL President Robert S. Peck attended a rare meeting of the ABA Amicus Curiae Committee in Washington, DC, where the Committee discussed plans to streamline its process and continue to assure quality briefing. ABA President Hillary Bass attended the meeting and was joined at the committee dinner by ABA President-elect Robert Carlson.