News

CCL Files Amicus Brief in Climate Change Litigation for Six U.S. Senators

March 20th, 2019

     CCL filed an amicus brief today on behalf of six U.S. Senators in the climate change litigation brought by Oakland and San Francisco against a number of major oil companies. The case is pending in the U.S. Court of Appeals for the Ninth Circuit, after a federal district court dismissed the litigation based on a determination that the issue requires resolution in the U.S. Congress.

     Senators Sheldon Whitehouse (D-RI), Dianne Feinstein (D-CA), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Edward Markey (D-MA), and Kamala Harris (D-CA) argue in the brief that the defendant companies' argument that climate change should be addressed but by the Congress or Executive Branch is disingenuous because the companies have a long history of opposing action by the legislature or by federal agencies and use their political clout against against action on the issue or candidates favoring action. The brief details the myriad ways that the defendants have impeded progress on this incredibly important issue and urges the court to treat the defendants' pleas for a different forum as pretextual and an attempt to assure that no forum confronts the issue.

     The brief also points out that federal courts have a "virtually unflagging obligation" to exercise the jurisdiction given them under a 1976 Supreme Court precedent, Colorado River Water Conservation Dist. v. United States. Moreover, the cities have claimed a real injury proximately caused by the defendants that will not be otherwise remedied without a court's willingness to hear their case.

     The Ninth Circuit is expected to hear oral argument in the dispute later this year.

     

CCL Files Brief in Opposition to Supreme Court Petition in Preemption Case

March 19th, 2019

     Today, CCL filed a brief on behalf of Juanita Nye, opposing the petition for certiorari filed by BNSF Railway Co., which seeks to avoid its liability in the death of Ms. Nye's husband at a railway crossing in Oklahoma.

     Jeffrey Nye, a 51-year-old eighth-grade science teacher and sports coach, was killed when a BNSF train hit his car. Vegetation overgrowth hid the approaching train, which also failed to sound its horn to warn motorists at the crossing. The vegetation also obscured the railroad crossing sign. A passenger in the vehicle who was injured but survived reported that Mr. Nye yelled "train" just as his car began to cross the tracks and the train first became visible.

     BNSF asserted that it cannot be sued for inadequate signage, known as crossbucks, because the signs were funded as part of a federal program that preempts state causes of action on those grounds. However, it failed to produce evidence that the particular crossbucks at issue were part of the federal funding project. Instead, evidence established that, at the time the federal project was completed, only one crossbuck had been erected and that the current crossbucks were different on each side of the track, both facts are inconsistent with any claim of federal funding and compliance with the specifications of the program, which require two crossbucks that would be identical. The trial court found the evidence sufficiently in dispute that it denied BNSF summary judgment and held that the issue was ripe for the jury's decision.

     The jury found liability and implicitly decided the factual issue of funding against BNSF. It appealed to the Oklahoma Supreme Court, which upheld the verdict. That court determined that BNSF's appeal was little more than an attempt to re-try the case in the supreme court by arguing all facts were matters of law for the court's, rather than the jury's determination.

     Before the U.S. Supreme Court, BNSF argues that Oklahoma imposed a more stringent standard of proof to support preemption than federal courts do and that intervention is necessary to permit railroads to claim preemption on the basis of unrebutted circumstantial evidence because records from 30 years ago are too scattered and fragmented. CCL's brief demonstrates that the Oklahoma Supreme Court's decision is consistent with both prior U.S. Supreme Court decisions and with other federal courts. BNSF's claimed circuit split simply does not exist. Moreover, the facts overwhelmingly support Ms. Nye's claim that federal funding was not involved with these particular crossbucks and that liability exists even without the sign issue because of the overgrown vegetation and the failure of the train to sound its horn.

     BNSF will have an opportunity to write a reply brief, and the Supreme Court is likely to take the matter up at its April 5 conference.

CCL Files AAJ Amicus Brief in U.S. Supreme Court on Punitive Damages in Seaworthiness Cases

March 1st, 2019

     In The Dutra Group v. Batterton, the U.S. Supreme Court will consider whether punitive damages are available to injured members of a crew suing for their injuries because the vessel was not seaworthy. CCL President Robert S. Peck co-authored an amicus brief on behalf of the American Association for Justice with AAJ Senior Associate General Counsel Jeffrey White, arguing that the public policy reasons advanced by The Dutra Group do not stand up to scrutiny.

     The case began when Christopher Batterton, a deckhand, was permanently injured when a hatch blew open and crushed his left hand. In his subsequent lawsuit, he alleged the ship was unseaworthy. The U.S. Court of Appeals for the Ninth Circuit held that punitive damages were available in Batterton's case.

     Before the U.S. Supreme Court, The Dutra Group argues that the availability of punitive damages would harm the maritime industry and the American economy more generally, placing companies like theirs at a competitive disadvantage with foreign vessels that would not be liable for punitive damages and that large awards, as well as fear of large awards, have a destabilizing effect on commerce.

     The AAJ amicus brief demonstrates that these public policy arguments are part of a long-running public relations campaign that is refuted by empirical studies and that the U.S. Supreme Court has already reviewed the research and found contradicts claims of runaway punitive damage awards in deciding the Exxon Valdez case in 2008. Instead, the research shows that punitive damages remain rare, are closely related to compensatory damages, and are predictable. Assertions that the availability of punitive damages scare companies to settle meritless claims are equally devoid of empirical support. Instead, the AAJ brief asserts that The Dutra Group's bid to end the centuries-old availability of punitive damages for egregious misconduct is nothing less than a bid to permit reprehensible actions in the name of commerce.

LA Daily Journal Publishes Article Co-Authored by CCL President

February 26th, 2019

     CCL President Robert S. Peck and California lawyer Bruce Brusavich argued that the Supreme Court's decision last week in Timbs v. Indiana renders application of the Seventh Amendment's right to trial by jury a foregone conclusion in a front-page opinion piece published today in the Los Angeles Daily Journal, the premier legal newspaper of Southern California. 

     In Timbs, the Supreme Court held, for the first time, that the Eighth Amendment's Excessive Fines Clause applies to the states. In that case, a person arrested on drug dealing charges challenged the seizure of a new $42,000 Land Rover he bought from money he inherited constituted an excessive fine, because the highest penalty he could be assessed was $10,000. The Indiana Supreme Court rejected the argument because the Excessive Fines Clause had never been "incorporated" through the Fourteenth Amendment to apply to the states. The U.S. Supreme Court unanimously reversed, finding the clause so fundamental that it had to be applied to the states.

     After Timbs, the only parts of the Bill of Rights that have not yet applied to the states are the Third Amendment's prohibition on quartering of troops, the Fifth Amendment's grand jury requirements, and the Seventh Amendment's right to a jury trial. Of these, Peck and Brusavich argue, the Seventh Amendment qualifies for incorporation under the criteria utilized by the Supreme Court. In fact, the article points out that the Seventh Amendment's credentials for incorporation outshine those of the Excessive Fines Clause or the previously incorporated Second Amendment. 

     The article points out the significance of incorporation, which would apply federal precedent on jury trials to the state, which the authors contend will invalidate damage caps in common-law based causes of action, such as medical malpractice. Since 1975, California has limited non-economic damages in medical malpractice cases to $250,000. Brusavich, a past president of the Consumer Attorneys of California, is counsel in Hernandez v. Cardin, a medical malpractice case that goes to trial April 8 in which the judge has authorized a hearing on the constitutionality of the cap if liability is assessed above the cap.

NY Court Accepts CCL Amicus Brief over Defendant's Objection

February 25th, 2019

     The New York Court of Appeals today granted CCL's motion for leave to file an amicus brief on behalf of the American Association for Justice in Daniels v. Beemiller, Inc.

      The case involves a lawsuit by the estate of a man killed when he was mistaken for a gang member by a rival gang. The gun had been purchased at an Ohio gun show as part of a lot by an illegal gun dealer. The distributor selling the guns was licensed, but knew the purchaser was not and that the purchaser was taking the lot to New York for resale. The sale violated the 1968 Crime Control Act, which requires sellers to assure that the buyers are not taking the guns across state lines or are otherwise eligible to sell the guns in the destination state. The amicus brief argues that the federal statute supplies the state interest that justifies the exercise of jurisdiction, a requirement described by the U.S. Supreme Court in its most decision on personal jurisdiction, Bristol-Myers Squibb v. Superior Court.

     The distributor-dealer in the case objected to the AAJ amicus brief, arguing that it added nothing to the case and urging the court to deny leave. The court nonetheless granted leave. The case will be argued in Albany on March 20. 

South Dakota Supreme Court Hears Arguments Over Punitive Damages

February 21st, 2019

      CCL President Robert S. Peck told the South Dakota Supreme Court today that Fern Johnson's lawsuit against United Parcel Service and Liberty Mutual Insurance exposed a corporate policy and business plan designed to close workers compensation claims, despite the workers' eligibility for lifetime benefits, despite a 13-year legal journey that confirmed those benefits, and despite a court order requiring the payment of those benefits. As a result, he said, significant punitive damages were warranted to vindicate the state's interest in assuring that workers injured on the job receive the compensation that the law mandates and vindicate the judiciary's interest in having its orders obeyed.

     Fern Johnson sued the two companies after obtaining a court order and defending her claims before the South Dakota Supreme Court. Less than seven months after winning her case, her benefits were cut again. She first brought an administrative claim before the state department of labor and won back those benefits. She then brought a bad-faith insurance claim in court. Represented by South Dakota's Goodsell Quinn law firm, Johnson won a $500,000 jury verdict for compensatory damages and a $45 million punitive damage verdict. The trial judge, although indicating her agreement with the jury's award and stating that it was not the product of passion and prejudice, felt compelled to reduce the punitive damages to $10 million. 

     UPS and Liberty Mutual appealed to the state supreme court, claiming that there should have been no liability because they relied upon the advice of counsel, a prominent South Dakota lawyer. They asserted that the trial judge improperly limited that counsel's testimony and denied them a fair trial. Alternatively, if the liability was properly assessed, the defendants argued that the punitive damages were constitutionally limited to a 1:1 ratio. Johnson cross-appealed for restoration of the full $45 million.

     In Peck's portion of the argument, he recited evidence that showed that the defendants had already decided to take away Johnson's benefits before consulting counsel, that counsel's advice had been admitted and considered by the jury and that only his reasoning for it, which was immaterial, was kept out, and that the defendants had spent more on attorney fees than the total liability they claimed was constitutionally mandated, indicating that a further reduction in punitive damages would not achieve its purposes of deterring and punishing their misconduct. He further noted that the full $45 million punitive damage judgment would not harm either company, with their shares of it amounting to 0.5 and 2.5 percent of their net worth, respectively. 

     The case is under submission.

U.S. Supreme Court Gives CCL Two Victories

February 19th, 2019

     In orders issued today, the U.S. Supreme Court denied petitions for certiorari in two cases CCL had won in the courts below. The orders effectively ended both cases.

     In Griffen v. Kemp, an Arkansas trial judge sued the state supreme court and each of its justices in federal court asserting that an order of recusal constituted a violation of his constitutional rights, including a right to preside over cases within his court's jurisdiction. CCL represented the Arkansas Supreme Court and three of its justices, but took the lead in the briefing on behalf of all the justices as the case developed. The District Court dismissed the complaint against the Arkansas Supreme Court, but allowed the case to continue against the individual justices. CCL then sought a writ of mandamus from the U.S. Court of Appeals for the Eighth Circuit, asking that the entire case be dismissed. The writ was granted and dismissal was ordered. The trial judge plaintiff then sought a writ of certiorari, asking the U,S. Supreme Court to restore the action. That petition was denied in Tuesday's order.

     In Burmaster v. Herman, a military contractor brought a Section 1983 action against a private lawyer and private law firm, alleging that they controlled state action that deprived him of his constitutional rights. In the U.S. Court of Appeals for the Seventh Circuit, CCL argued that the action was subject to dismissal on multiple grounds, including failing to state a cause of action because there was no credible allegation that the private defendants could control state action and because the plaintiff's prosecution by the U.S. Attorney's Office was a federal action that does not implicate Section 1983. In addition, CCL argued that the case, brought in the Eastern District of Wisconsin, did not have any connection to the allegations or defendants, all of which were in Louisiana. The Seventh Circuit ruled simply that the courts lacked jurisdiction. The denial of certiorari by the Supreme Court ends that action.

CCL's Robert Peck Featured in New Publication on State Constitutional Rights

February 15th, 2019

     The Pound Civil Justice Institute today published the proceedings of its 2018 Forum for State Appellate Court Judges, which features CCL's Robert S. Peck as a commentator on Rutgers Law Professor Robert Williams's paper on "State Constitutional Protection of Civil Litigation."

      The book, entitled State Court Protection of Individual Constitutional Rights, transcribes the proceedings of the July 7, 2018 forum that took place in Denver, Colorado, attended by 140 judges from 36 states. In his remarks, Peck talked about the right to trial by jury and the right to a remedy under state constitutions.

      Other speakers at the conference included California Supreme Court Justice Goodwin Liu and Wayne State Law Professor Justin Long.

     

Peck Quoted on Constitutional Issues in LA Private Contractor Requirements

February 15th, 2019

    A new ordinance, enacted unanimously, requires private contractors wishing to do business with the City of Los Angeles to disclose whether they do business with or offer discounts to the National Rifle Association (NRA). Yahoo Finance interviewed CCL President Robert S. Peck on the ordinance's constitutionality (https://finance.yahoo.com/news/new-los-angeles-says-contractors-must-disclose-nra-ties-224358900.html?ncid=twitter_yfsocialtw|1gbd0nolom).

    Peck explained that disclosure generally does not raise constitutional concerns except where it is likely to cause retribution against the disclosing party or its members. While private contractors have certain First Amendment rights that would prevent a city from discriminating against them because they refuse to support the incumbent political figures, there is a substantial open question about whether a city crosses a constitutional line when it insists on doing business companies that align with a city's public policy priorities, such as those that only use recycled products, Peck told the news source.

CCL Files Amicus Brief for Senator Whitehouse in Climate Change Litigation

January 29th, 2019

   Today, CCL filed an amicus brief for Senator Sheldon Whitehouse (D-RI) in the Ninth Circuit appeal of several California counties and a municipality seeking to hold several oil companies liable for the impact that climate change has had on their communities. 

   The Whitehouse amicus brief specifically responds to a brief previously filed in support of the defendants by the U.S. Chamber of Commerce. The Chamber, claiming to be steadfast in its support for a response to climate change, urged the Ninth Circuit to reverse the District Court and treat the issue as a political question more appropriate to being addressed in the executive and legislative branches. Today's filing points out that the Chamber has consistently opposed climate change policies in the two other branches of government and suggests that the Chamber's amicus brief be discounted because its funding sources are not transparent.