CCL Attorneys Attend Hearing on Civil Rules Amendments

November 7th, 2013

On November 7, 2013, CCL’s Andre M. Mura and Valerie M. Nannery attended the first of three public hearings on the proposed changes to the Federal Rules of Civil Procedure. The Judicial Conference Advisory Committee on Civil Rules has proposed changes that would change the scope of discovery, the time limit for service of process, as well as the presumptive number of depositions, requests for admission and interrogatories the parties are entitled to in civil litigation in Federal Court. The Advisory Committee heard a full day of testimony from more than 40 witnesses including members and the President of the American Association for Justice, members of the civil rights community, as well as several representatives from the DRI and general counsels of large corporations. Many witnesses testified that the proposed changes would cripple the efforts of injured plaintiffs to prove their cases and limit access to justice. Others testified that the proposals should be adopted to reduce discovery-related costs.

The comment period on the proposed Rule changes opened on August 15, 2013, and will remain open until February 15, 2014. The Committee has already received more than 300 written comments on these changes. Comments may be submitted electronically here. The Committee will hold two more public hearings early next year, in Phoenix, AZ on January 9th and in Dallas, TX on February 7th. Those who wish to testify at either of the upcoming hearings must submit their requests in writing at least 30 days in advance. More information can be found here.  CCL expects to file its own comments on the proposed rules.

Senate Holds Hearing on Whether Proposed Amendments to Civil Rules Would, If Adopted, Impede Access to Justice

November 7th, 2013

On November 5, the Senate Judiciary Committee’s Subcommittee on Bankruptcy and the Courts held a hearing to consider whether proposed amendments to the Federal Rules of Civil Procedure being considered by the Advisory Committee on Civil Rules would, if adopted, impede access to the courts. The hearing, entitled “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?” was chaired by Senator Chris Coons (D-DE). Also in attendance were Senators Jeff Sessions (R-AL), Sheldon Whitehouse (D-RI), Al Franken (D-MN), Richard Blumenthal (D-CT), and Jeffrey Flake (R-AZ). The committee received testimony from Professor Arthur Miller of NYU School of Law, Andrew Pincus of the Mayer Brown law firm, and Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. Andre M. Mura attended on CCL’s behalf.

Senator Coons opened by questioning whether it is appropriate to narrow the scope of discovery in all cases, when access to information is essential to our civil justice system. He urged the Advisory Committee to examine carefully whether, in seeking to reduce litigation costs, there would be any collateral, negative consequence for access to courts. In addition, Senator Whitehouse expressed grave concern that changes to the civil rules generally were negatively affecting the constitutional right of trial by jury. Senators Jeff Sessions and Jeffrey Flake, however, expressed concerns with reports about discovery costs and stated that the process for amending the rules should run its course.

Professor Miller testified that the proposed amendments lack empirical support and would establish another roadblock to access to the civil justice system. Mr. Pincus, by contrast, expressed the view that discovery-related legal costs are significant, and the proposals would produce cost-savings. Ms. Ifill, however, responded that she was aware of no empirical evidence that discovery costs were out of control, and that the proposals severely truncate the number of low-cost discovery requests that may be served. She further stated that while in a small fraction of cases discovery may be abused, it was unwise to amend the rules to narrow the scope of discovery in all cases.

A video of the hearing is now available online.

CAFA Victory in 6th Circuit

October 30th, 2013

The Sixth Circuit today denied defendants’ petitions for leave to appeal remand orders under CAFA in seven separate Darvon cases. Plaintiffs had filed these cases in California and had named a drug distributor based in California as one of the defendants to prevent removal based on diversity. Defendants nevertheless removed these cases to federal court, asserting among other things that the cases were subject to federal jurisdiction under the mass action provision of the Class Action Fairness Act. Defendants moved to transfer the cases to the Darvon MDL and the JPML decided that the remand issue could properly be resolved by that court after transfer (even though, if federal jurisdiction were based solely on CAFA, transfer would be prohibited). The MDL judge then granted remand, rejecting defendants’ three separate arguments for federal jurisdiction.

Defendants sought leave to appeal to the Sixth Circuit. Although remand orders are not generally appealable, a provision in CAFA authorizes petitions for expedited appeal of remand orders rejecting federal jurisdiction under that act. CCL Senior Counsel Lou Bograd was retained to oppose the petitions. Today, a motions panel of the court entered an order denying leave to appeal in all seven cases, which will now all be remanded to California state court.

Peck Named Chair of RAND Institute for Civil Justice

October 26th, 2013

CCL President Robert S. Peck became chair of the Board of Overseers of the RAND Institute for Civil Justice (ICJ) Oct 26, 2013.  The Santa Monica, CA-based ICJ conducts objective, empirically based, analytic research on issues arising in the civil justice system.  Its frequently cited research analyzes trends and outcomes, identifies and evaluates policy options, and brings together representatives of different interests to debate alternative solutions to policy problems. Its Board of Overseers includes prominent judges, general counsel of large corporations and insurance companies, academics, and members of the bar. The ICJ is a division of the RAND Corporation, a well-known nonprofit institution that helps improve policy and decisionmaking through research and analysis.  Peck will serve two years as chair of the ICJ Board.

CCL President Listed Among “Highly Respected Plaintiffs’ Lawyers” by U.S. Chamber of Commerce

October 24th, 2013

The U.S. Chamber of Commerce has listed CCL President Robert S. Peck among the nation’s leading plaintiff’s lawyers in a new 158-page report, published by the Chamber’s Institute for Legal Reform.  Entitled “The New Lawsuit Ecosystem: Trends, Targets and Players,” the report purports to identify key lawyers and litigation trends in the civil justice system, as well as how litigation influences public policy. While the Chamber remains an opponent of the litigation trends it identifies in the report, it nonetheless acknowledges Peck as one of the “highly respected plaintiffs’ lawyers” who does not “neatly fit in any of the areas discussed” in the report.  Peck’s work challenging the constitutionality of laws restricting compensation for injuries is specifically acknowledged as the basis for his listing.

CCL President Debates Proposed Changes to Civil Procedure Rule on Frivolous Claims on Capitol Hill

October 22nd, 2013

At a session of the Congressional Civil Justice Caucus Academy held in the Rayburn House Office Building on October 21, CCL President Robert S. Peck argued against a return to the 1983 version of the federal civil procedural rule that sanctions lawyers who file frivolous claims or defenses.  Representing the American Bar Association, which opposes the legislation at issue, Peck explained that "we have seen this movie before" and found it a disaster.

 From 1983 to 1993, Federal Rule of Civil Procedure 11 required judges issue mandatory sanctions against lawyers who filed so-called frivolous claims or defenses.  Experience made supporters of the stringent rule back off their support.  As Peck explained, judges applied inconsistent and unpredictable sanctions, including against lawyers who argued for positions subsequently adopted by the U.S. Supreme Court.  Perhaps even more importantly, the 1983 version of Rule 11 was used for unintended purposes.  Motions made pursuant to Rule 11 were not offered against frivolous actions, which were easily defeated on the merits, but as a tactical ploy against meritorious actions to make them more expensive to pursue. 

The Judicial Conference of the United States, the governing body of the federal courts, amended that version of Rule 11 because it resulted in significant collateral litigation, making cases more expensive, wasteful, and dilatory.  It was used against civil rights plaintiffs more frequently than against any other party.  Moreover, congressional imposition of an amended Rule 11, which would lack demonstrated need, is inconsistent with the Rules Enabling Act, the legislation regarded as a treaty between the legislative and judicial branches, that sets forth a considered procedure for changing the federal rules that utilizes input from the public, review within the judicial branch, and an opportunity for congressional veto.ssss

 Supporting the rule change through legislation against Peck was Shooky Hardy law partner Victor Schwartz, general counsel of the American Tort Reform Association, and Bradford Berenson, Vice President and General Counsel of General Electric. 

CCL Successfully Opposes Supreme Court Review in SNFA v. Russell

October 8th, 2013

In an order dated October 7, 2013, the Supreme Court of the United States denied French manufacturer SNFA’s petition for a writ of certiorari. CCL attorneys Andre M. Mura and Robert S. Peck prepared the brief in opposition on behalf of the plaintiff.

As discussed in a previous post, the petition sought review of the Illinois Supreme Court’s ruling that SNFA, a foreign manufacturer of aerospace ball bearings, had sufficient contacts with Illinois such that it was amenable to a products-liability suit arising out of a helicopter crash in the State allegedly caused by defective bearings. Representing the estate of a helicopter crash victim, CCL argued that the court’s ruling is consistent with existing personal-jurisdiction precedent, that the record in the case established that SNFA had sufficient contacts with Illinois, and that further review is unwarranted.  

Peck Speaks at Congressional Preview of U.S. Supreme Court Term

October 7th, 2013

CCL President Robert S. Peck told congressional staffers that the upcoming Supreme Court term provided the Court with a large number of opportunities to rule narrowly or broadly in ways that could affect a variety of cases not before the Court while participating in the Congressional Civil Justice Caucus Academy's U.S. Supreme Court Briefing on October 4.

Focusing on DaimlerChrysler AG v. Bauman and Mississippi ex rel. Hood v. AU Optronics Corp., Peck stated that Bauman, which involves whether a foreign parent corporation can be sued for human rights violations in the United States based only on the contacts that a subsidiary has with the jurisdiction, holds important implications for whether a domestic corporation that operates in a state solely on the basis of its wholly owned subsidiary can be sued in that state.  Peck was co-counsel on an amicus brief making the same point that filed in Bauman on behalf of the American Association for Justice. Other counsel on that brief included Associate Dean Alan B. Morrison of George Washington University law school, Professor Arthur Miller of New York University law school, and Dean Erwin Chermerinsky of the University of California at Irvine law school.

 Hood raises the issue of whether the Class Action Fairness Act (CAFA), which permits certain class actions and "mass actions" to be removed from state court to federal court, applies to an Attorney General's lawsuit using the parens patriae authority of the State, which is an act of a sovereign state.  Past precedent, Peck said, would appear to foreclose application of CAFA to a State's own lawsuit, particularly where, as here, the state is acting under its antitrust and consumer protection statutes. 

 Peck was joined on the panel by Richard Faulk of Harrington LLP, who provided a more pro-business perspective.  The well-attended event was held at the Rayburn House Office Building.

Peck Participates in ABA Meetings in Chicago

September 30th, 2013

 CCL President Robert S. Peck participated in two ABA meetings in Chicago, September 26-27.  He chaired a meeting set up by ABA President James Silkenat to find common ground between competing proposals to address judicial disqualification in light of the U.S. Supreme Court decision in Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009).  Representatives of the ABA Judicial Division, the ABA ethics committee, and the Conference of Chief Justices discussed concerns about different approaches to addressing when disproportionate monetary contributions create an appearance of bias in elected judges.  Discussions will be ongoing.

In addition, Peck attended the annual ABA Section Officers Conference, where he represented the Tort, Trial and Insurance Practice Section (TIPS).  Peck serves as the senior ABA House of Delegates member from TIPS.

Federal Judge Invalidates New Florida Med-Mal Law

September 26th, 2013

On September 25, U.S. District Court judge Robert Lewis Hinkle struck down a new Florida statute that required prospective medial malpractice plaintiffs to authorize ex parte interviews with their treating physicians, beginning 90 days before any lawsuit is filed. 

The case, Murphy v. Dulay, was filed shortly after the new law went into effect July 1.  It challenged a new authorization required during the presuit phase of a medical malpractice claim that permitted defendants, their lawyers, and their insurers to conduct interviews with a patient's treating physicians going back two years before the alleged medical malpractice.  The interviews authorized by the law could be conducted outside the presence of the patient or his lawyer, thereby constituting a broad waiver of physician-patient privilege.  The lawsuit, filed by CCL with Florida lawyers Neal Roth, David Bruckner, and Dana Brooks, challenged the new statute as inconsistent with the federal Health Insurance Portability and Accountability Act (HIPAA).  HIPAA protects a patient's private health information and establishes prerequirements before doctors may be required to disclose the information, even in the course of judicial proceedings.  The Florida statute failed to comply with HIPAA's requirements, as Judge Hinkle detailed in his opinion.

CCL President Robert S. Peck argued the case before Judge Hinkle, who sits on the U.S. District Court for the Northern District of Florida, on September 18.  Opposing counsel included Dr. Dulay's lawyer and the Florida Attorney General's office.  Agreeing with CCL's briefs on behalf of plaintiff Murphy, the judge found that the statutorily mandated authorization was not voluntary and therefor could not constitute consent to disclosure and that the other HIPAA-required safeguards were not part of the Florida procedure.  He enjoined the putative defendant doctor from moving to dismiss any lawsuit filed in state court by the plaintiff on grounds that he did not comply with the Florida law's authorization of ex parte interviews.