News

Following on the heels of an historic verdict in a case declaring New York City’s stop-and-frisk policies unconstitutional, the ACLU published a report in March that laid bare Chicago’s widespread, discriminatory stop-and-frisk practices. CCL joined co-counsel Antonio M. Romanucci, Martin D. Gould & Angela Kurtz with the Chicago firm Romanucci & Blandin, LLC, and Rod Gregory of the Gregory Law Firm in Jacksonville, Florida, in representing more than two dozen African-American and Hispanic male Chicago residents who filed a putative class action against the City, the Superintendent of Police, and the officers for violations of their Fourth and Fourteenth amendment rights.

The City and the Police Superintendent each separately moved to dismiss an amended complaint, attempting to litigate the merits of the plaintiffs’ claims before the defendants filed their Answer or provided the discovery the plaintiffs need to prove their claims.

CCL President Robert S. Peck and Senior Litigation Counsel Valerie M. Nannery worked with co-counsel to counter the City’s arguments that the plaintiffs do not have standing to seek equitable relief, and that the plaintiffs didn’t allege sufficient facts in the 713-paragraph Amended Complaint to show that their constitutional rights had been violated by the City’s practices and policies. In response, CCL pointed to the allegations that the incredibly widespread practice caused numerous plaintiffs to be stopped and frisked multiple times each, sometimes on the same day, without reasonable suspicion and based on their race or national origin, all while going about their daily lives, including instances where they were standing in front of their own homes. CCL argued that the allegations demonstrate a strong likelihood that the plaintiffs will again be subject to the challenged widespread policy because they cannot avoid being stopped and frisked simply by obeying the law.

The defendants’ motions will be heard in the U.S. District Court for the Northern District of Illinois on December 22^nd.

The City of Oakland, California filed a federal lawsuit against Wells Fargo Bank to recover damages caused by the bank’s predatory and discriminatory lending practices within the city.

The lawsuit charges Wells Fargo with targeting minority borrowers with predatory mortgage loan terms in violation of the federal Fair Housing Act and California’s Fair Employment and Housing Act.

In a press release issued upon the filing of the action, Oakland City Attorney said, “Wells Fargo’s discriminatory conduct devastated individuals and communities, increasing poverty and wiping out or drastically reducing wealth for minority communities while bankers prospered.”

The lawsuit asks the Court to order Wells Fargo to cease its discriminatory practices and compensate the City of Oakland for financial harm that the foreclosure crisis caused the city. In addition to losing millions in tax revenues, which necessitated police layoffs and other cuts in city services, the bank’s predatory practices saddled the city and its taxpayers with massive costs in addressing blight, vandalism and crime associated with foreclosed properties.

Thousands of homes went into foreclosure and remain in poor condition costing cities significant sums of money due to the loss of property taxes and increased out-of-pocket expenditures to remedy the resulting blight throughout minority communities.

City Attorney Parker filed the lawsuit in federal court with outside counsel that includes CCL President Robert S. Peck, Dean Erwin Chemerinsky of the University of California at Irvine School of Law, Yosef Peretz of Peretz & Associates, and Joel Liberson of Trial & Appellate Resources.

The U.S. Department of Justice and the cities of Los Angeles, Miami and Miami Gardens previously filed similar lawsuits against various banks. CCL is part of the legal team in the other municipal lawsuits.

In an amended complaint filed in federal court in Florida, the City of Miami Gardens renewed its allegations that Wells Fargo Bank violated the federal Fair Housing Act (FHA) by steering minority applicants to more expensive loans than they otherwise qualified for, resulting in a blight of foreclosures and costs to the city.  CCL is part of the city’s legal team in litigating the matter.

The case, originally filed more than a year ago, was stayed by U.S. District Court Judge Federico Moreno, while similar cases brought by the City of Miami was heard by the U.S. Court of Appeals for the Eleventh Circuit. Earlier this month, that court revived Miami’s lawsuits against Wells Fargo, as well as Bank of America and Citigroup, which had been dismissed by another district court judge, largely on grounds that the city lacked standing to prosecute FHA claims. CCL President Robert S. Peck argued the three successful appeals on behalf of Miami.

Miami Gardens’ new complaint also incorporates guidance received in June from the U.S. Supreme Court on the requirements for claims based on disparate impact under the FHA.

CCL filed a brief Monday, challenging Nebraska’s 40-year-old cap on damages in medical malpractice cases in Schmidt v. Bellevue Med. Ctr., currently pending in federal district court in Nebraska. The underlying case involves a now nearly three-year-old girl who suffered severe brain damage during birth.  A jury determined that the hospital was liable and found damages to amount to $17 million. Under the 1976 law, which has been amended to increase the damage cap several times, the verdict would be reduced to $1.75 million.

The Cullan & Cullan law firm of Omaha, which tried the case, hired CCL to help them challenge the damage cap, which applies to all damages in the case, economic and noneconomic. In Monday’s brief, written by CCL President Robert S. Peck, the plaintiffs argue that the cap violates the federal and state right to trial by jury, arguing that the Seventh Amendment guarantee in the U.S. Constitution should be applied to the states. In addition, the brief asserts that the cap violates the right of access to the courts, constitutes a taking without just compensation, is inconsistent with equal protection, and cannot be justified on substantive due process grounds.

On Friday, September 11, CCL Chief Litigation Counsel Louis M. Bograd argued in the US District Court for the Southern District of California that no federal preemption defense warrants summary judgment against more than 1,000 plaintiffs who have developed pancreatic cancer as a result of their use of incretin mimetic drugs manufactured or distributed by defendants Merck, Eli Lilly, Amylin, and Novo Nordisk as treatment for Type 2 diabetes. The motions were heard in connection with the ongoing MDL proceeding before Judge Battaglia in the District Court and the ongoing JCCP proceeding before Judge Highberger in California state court. Both judges presided over the four-hour hearing, which involved three separate summary judgment motions relating to the affirmative defense of federal preemption. Bograd argued that there was no “clear evidence” that the FDA would have rejected a properly supported Changes Being Effected Supplement to add the risk of pancreatic cancer to the approved labeling for the defendants’ incretin mimetic drugs. Both courts took the motions under advisement and are expected to rule in the coming months.

On September 8, CCL filed an amicus brief on behalf of the American Association for Justice in the U.S. Supreme Court urging the Supreme Court to dismiss the case of Spokeo, Inc. v. Robins, No. No. 13-1339, a putative class action with broad implications for consumers, employees and others whose federal statutory rights may have been violated, because it fails to provide a basis to answer the question presented on certiorari.

Spokeo collects publicly available information about individuals and packages it for sale to prospective employers and other customers. Thomas Robins, brought this putative class action, alleging that Spokeo’s report on him falsely indicated that he was older, better educated, employed, wealthier and married. Robins asserted that Spokeo’s failure to take reasonable measures to ensure accuracy violated the Fair Credit Reporting Act, which allows statutory damages of $100 to $1,000 per willful violation. Spokeo argued that Robins showed no “real-world” damages because the false information actually portrayed him more favorably. The Ninth Circuit held that violation of Robins’ statutory right under the FCRA was sufficient to create standing, regardless of actual injury in fact.

The Supreme Court granted review of the question whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, based on a bare violation of a federal statute.

AAJ’s amicus brief, authored by CCL Senior Counsel Jeffrey R. White, suggested that the Court dismiss the Petition in this case as improvidently granted. The statutory violation was not the publishing of false information, but the absence of reasonable procedures for accuracy, required by 15 U.S.C. § 1681e(b). The publishing of false information was the concrete harm the FCRA was intended to prevent by imposing an accuracy requirement. Thus this case does not squarely present the Court with the issue whether Congress can confer standing on a plaintiff who has suffered no concrete injury.

Moreover, the principle that a plaintiff must demonstrate injury-in-fact in addition to violation of a statutory duty is one that the Court has fashioned for public law cases, such as the enforcement of environmental regulation. It has never been a requirement of Article III standing that a plaintiff asserting a private cause of action demonstrate injury in addition to the violation of a legal duty owed to the plaintiff.

In three decisions issued simultaneously, the U.S. Court of Appeals reversed the dismissal of lawsuits for violations of the federal Fair Housing Act brought by the city of Miami, Florida against Bank of America, Citigroup and Wells Fargo.  The Center for Constitutional Litigation represented Miami in the appeal, with CCL President Robert S. Peck and Valerie Nannery writing the bulk of the brief as part of a larger litigation team. Peck argued the case in the Eleventh Circuit.

The case stems from lawsuits brought by Miami over lending practices that steered minority borrowers to more expensive loans than they otherwise qualified for, which, according to the complaint’s allegations, disproportionately resulted in foreclosures, eroding the city’s tax base and engendering added police, fire and other expenses in the newly blighted neighborhoods. A federal district court judge had dismissed the actions, claiming that the city lacked standing to initiate the lawsuit, had failed adequately to allege that the banks’ actions were a proximate cause of the city’s injuries, and did not allege any of the predatory loans taking place within the statute of limitations. On all three conclusions, the Eleventh Circuit held that the district court was wrong. Relying on U.S. Supreme Court precedent, the Court found that the city was an appropriate plaintiff who fell within the “zone of interests” contemplated by the FHA. It further held that, because the FHA sounded in tort law, the city’s allegations were sufficient to show that the banks’ loan practices would foreseeably cause the alleged injuries. Finally, it held that the city had demonstrated that it was not futile to permit the city to file an amended complaint capable of meeting the statute of limitations.

While the case was pending in the Eleventh Circuit, other federal district court judges presiding over similar allegations filed by the City of Miami Gardens had stayed the cases. Those cases will now likely move forward.  CCL is part of the legal team in the Miami Garden cases, as well as in cases brought by the city of Los Angeles, California, where it is handling appeals from summary judgment in the Ninth Circuit.

Arguing that the First District Court of Appeals gave too narrow a reading to various state constitutional provisions in conflict with binding precedent, the Center for Constitutional Litigation filed a jurisdictional brief in the Florida Supreme Court, asking it to review the decision. The Florida law, enacted in 2013, requires prospective medical-malpractice plaintiffs to waive their privacy rights with their treating physicians and authorize the putative defendant and the defendant’s litigation allies to interview those physicians without the plaintiff or plaintiff’s lawyer present. The Florida Supreme Court has previously held that the practice was intrusive and likely to produce information unrelated to the lawsuit that remains protected information under confidentiality statutes.

The brief, written by CCL President Robert S. Peck, argues that the appellate court erroneously held that the Florida Supreme Court intended to allow the legislature to supplement the types of discovery the court itself authorized when it promulgated the rule that governs presuit discovery in medical-malpractice cases. Precedent holds that when a statute conflicts with a rule of procedure promulgated by the Supreme Court, the statute must yield. In addition, the brief argues that the First District mistakenly interpreted Florida’s constitutional guarantee of access to the courts to require a complete abolition of a cause of action before it can be violated, an argument the Florida Supreme Court expressly rejected in 1987. Finally, the brief contends that Florida’s strong constitutional right of privacy is violated a law that does not narrowly require a waiver only to the extent that can be justified in the context of a lawsuit. The defendants and the State of Florida are expected to file briefs in opposition.

In a very significant ruling regarding the First Amendment rights of pharmaceutical companies, Judge Paul Engelmayer of the Southern District of New York ruled that the FDA may not pursue misbranding charges against a drug company for communicating truthful, nonmisleading information about unapproved “off-label” uses of its products. Amarin Pharma Inc. v. FDA (Aug. 7, 2015). While the pharmaceutical industry was busy celebrating its newfound ability to engage in off-label promotion, CCL Chief Litigation Counsel Lou Bograd commented that they should be careful what they wish for: “The First Amendment Ruling in the Amarin Pharma case is a double-edged sword, with huge implications for preemption doctrine, especially for the impossibility preemption defense to generic drug failure-to-warn claims.” As Bograd told Law360 in its article, “Amarin’s Off-Label Victory Opens Door to More Injury Claims,” “If it’s the case that drug companies have the First Amendment right to make truthful statements about off-label uses, and the FDA cannot prohibit them, then it follows that they would have the First Amendment right to truthfully communicate the risks of their products even if that information isn’t on the label of the brand-name products.”

On August 6, 2015, the U.S. Court of Appeals for the Ninth Circuit held that, to qualify as a “mass action” under the Class Action Fairness Act, making an action filed in state court eligible for removal to federal court, a plaintiff must affirmatively propose a joint trial with other similar cases. In Briggs v. Merck Sharp & Dohme, the appellate court unanimously reversed a trial-level decision that had found federal jurisdiction under CAFA over five separate suits originally filed in California state courts. The Ninth Circuit decision adopted in toto the positions advocated by CCL Chief Litigation Counsel Louis Bograd in support of plaintiffs. The Court first agreed with plaintiffs on a threshold jurisdictional question, holding that a petition for leave to appeal filed within 10 days of the denial of a motion for reconsideration is timely. Turning to the merits, the Court of Appeals ruled that a “proposal” for joint trial under CAFA must be made to a court with the authority to effect the relief requested and, therefore, statements made in federal court cannot constitute such a “proposal.” The panel also ruled that a plaintiff who files a coordination petition that specifically says it is not for a joint trial does not trigger CAFA. Finally, the court ruled that a proposal for bellwether trials in a state mass tort proceeding is not a proposal for joint trials. The Briggs ruling provides clear guidance for plaintiffs who wish to keep their mass tort cases in state court. CCL’s co-counsel in this appeal included Ryan Thompson of Watts Guerra LLP, Hunter Shkolnik of Napoli Bern Ripa Shkolnik LLP, and John Restaino of Restaino Siled LLD.