Ninth Circuit Rules Favorably in Climate Change Cases

May 26th, 2020

     The U.S. Court of Appeals for the Ninth Circuit ruled today that local government units that sued oil companies have the right to proceed in their cases. CCL, with Gerson Smoger & Associates, filed amicus briefs in support of the plaintiff-governments in both cases on behalf of Senator Sheldon Whitehouse.

     In County of San Mateo v. Chevron Corp., the Ninth Circuit affirmed a decision of the federal District Court, remanding the case to state court. Chevron and its oil company co-defendants argued that they qualified as federal officers, so that the case was properly heard in federal court. They also argued that the case arose under federal law, even though the plaintiffs had pleaded state public nuisance claims. The Ninth Circuit agreed with the District Court that the oil companies did not qualify as federal officers. It also held that it had no jurisdiction to reach Chevron's other grounds for removal because the company only had a right to appeal the federal-officer ruling.

     In City of Oakland v. BP, the Ninth Circuit reversed a U.S. District Court decision that dismissed Oakland's case for failure to state a claim and found it had jurisdiction. The Ninth Circuit disagreed, finding the complaint proper and the jurisdictional ruling wrong. It remanded the case for consideration of other jurisdictional arguments BP and its co-defendants made that had not been reached by the lower court.

CCL Opposes Airbus Petition for Certiorari in Supreme Court

May 23rd, 2020

     On May 21, CCL filed its brief opposing certiorari in the Supreme Court in Airbus Helicopter, Inc. v. Riggs, arguing that no issue of great national importance or any circuit conflict presented itself in the Ninth Circuit's favorable ruling to the client CCL shares with co-counsel Robb & Robb of Kansas City.

     The case involves the death of a tourist, who suffered fatal burns when the tour helicopter on which he was a passenger made an emergency hard landing and burst into flames. A complaint filed in Nevada state court alleged that the helicopter was defectively designed because it lacked a crash-resistant system, now standard, that would have prevented the fire. 

    Airbus, manufacturer of the helicopter, removed the case to federal court, claiming that it certified the airworthiness of the helicopter as a official designee of the Federal Aviation Administration, making it the equivalent of being an officer of the federal government. The plaintiffs successfully moved to remand the case from federal to state court, supported by the defendant helicopter tour company, but Airbus appealed. The Ninth Circuit, however, affirmed the remand order of the U.S. District Court. Airbus then petitioned for certiorari. Thursday's filing, opposing certiorari on behalf of the plaintiffs, was again supported by the Nevada-based defendants. 

    Airbus will have an opportunity to reply to the two briefs in opposition, after which the Supreme Court will vote on whether to take the case. A decision on the certiorari petition is expected in June.

CCL President Receives Amicus Award

May 18th, 2020

     CCL President Robert S. Peck received the 2020 Amicus Award from the International Municipal Lawyers Association (IMLA). The award recognizes Peck for his work on behalf of municipalities. Most recently, Peck provided pro bono representation to IMLA, the National League of Cities, and the U.S. Conference of Mayors in a series of lawsuits involving climate change that were pending in the First, Fourth, Ninth, and Tenth Circuits, articulating the reasons why appellate review of an attempt to remove these cases from state to federal court should be limited to whether the defendant oil companies can claim federal officer status. Originally, the presentation of the award was to take place at IMLA's 2020 Convention in Washington, DC, but the convention was cancelled in light of the Covid-19 pandemic.

    Peck has also represented a number of U.S. cities as plaintiffs in fair housing litigation, seeking to challenge discriminatory mortgage lending practices. Those cities have included Los Angeles, Philadelphia, Miami, Miami Gardens, Oakland, and Sacramento.

CCL Seeks Preliminary Injunction against W. Va. Advertising Law

May 14th, 2020

     CCL filed a motion and memorandum seeking a preliminary injunction against the enforcement of a new West Virginia lawyer advertising law that would place restrictions on communications about prescription drug and medical device cases. 

     Among the law's clear violations of the First Amendment, the memorandum describes its absolute prohibition of the use of the word "recall," except when ordered by or part of an agreement with a government agency. The statute, then, prohibits a speaker from using the word recall in the vast majority of instances where it would be true: when the manufacturer undertakes a voluntary recall. Other bans in the statute prevent display of a government agency logo or the use of words like "consumer alert."

     In addition, the statute adds such extensive disclaimers unrelated to the offer of legal services that it would dominate the advertising.

     The case was brought on behalf of a consumer and two West Virginia attorneys. The case is Recht v. Justice.

CCL Files Challenge to West Virginia Lawyer Advertising Restrictions

May 10th, 2020

    CCL filed a challenge to a new West Virginia law, due to go into effect on June 5, alleging that the statute violates the First and Fourteenth Amendments. The statute limits lawyer advertising concerning defective drugs and medical devices by restricting use of the word "recall" in any communication in any medium that solicits clients. It also contains prohibitions on the use of the word "alert" and the logo of any federal or state agency in the advertisement. The statute further requires those advertisements to contain a number of disclaimers, including ones about the product's continued approval by the Food & Drug Administration (FDA) and the need to continue using the drug until advised otherwise by a doctor, neither of which are related to the legal services being offered.

     The case, Recht v. Justice, was filed May 4, in the U.S. District Court for the Northern District of West Virginia. CCL plans to seek a preliminary injunction to prevent the law from going into effect as scheduled.

CCL Responds to Statement of Recent Decision in FHA Case

May 10th, 2020

     After Defendant Wells Fargo filed a denial of rehearing en banc from the Eleventh Circuit in support of its motion to bifurcate discovery, CCL, on behalf of the City of Sacramento, filed a response, pointing out that the denial had no precedential or persuasive impact and that the underlying decision contradicted Wells Fargo's position. In March, CCL argued against the bifurcation motion, which seeks to balkanize the case into small parts that would make it more difficult for the City to prove its allegations against the banking giant, accused of discriminatory mortgage lending. The issue remains pending before the U.S. District Court for the Eastern District of California (City of Sacramento v. Wells Fargo & Co.).

April Round-up of CCL Activities

May 10th, 2020

    During April 2020, despite the Covid-19 pandemic, CCL maintained the furious pace of activity that was seen the previous month. Among the highlights of CCL's activities:

  • CCL filed an amicus curiae brief on behalf of the American Association for Justice and Public Justice in the U.S. Supreme Court in Ford Motor Co. v. Bandemer, originally schedule for argument in April, but now postponed until the term that begins in October.  Before the Supreme Court, Ford argues that it cannot be subjected to personal jurisdiction in either Minnesota or Montana in two cases in which plaintiffs sued Ford for defective designs that caused serious injury. In one case, the injury was death. Ford asserts that there must be a causation element to jurisdiction, so that it does not matter that the person injured or the injuring event both took place in the place of lawsuit. Instead, it contends that it may only be sued where it is headquartered, where it designed the flawed vehicle, or where the vehicle was first purchased. The CCL-authored brief points out that Ford maintains a continuing relationship with car owners and their vehicles, where its dealerships service the vehicle and it encourages owners to buy Ford parts, even if serviced elsewhere, as part of a "Keep Your Ford a Ford" campaign. In fact, one of the two cars in the suit was serviced in a Ford recall at a local dealership. The clear, continuing relationship with the vehicle in the jurisdiction, the brief argues, demonstrates that there is no unfairness in requiring Ford to defend itself within the home jurisdiction of these plaintiffs. On the other hand, any attempt to require the plaintiffs to sue elsewhere would place a hardship on the plaintiffs.
  • CCL participated with co-counsel in filing a supplemental brief in Johnson v. UPS, a case pending in the South Dakota Supreme Court that CCL helped argue in February 2019. The supplemental brief discusses a new U.S. District Court decision that supports liability in the case. UPS had withdrawn workers compensation benefits from the plaintiff six months after she had prevailed on the benefits question in a prior trip to the South Dakota Supreme Court. A jury found it wrongful and awarded both compensatory and punitive damages. The case is still pending.
  • CCL also filed a brief on punitive damages in the Volkswagen Emissions MDL, where Volkswagen has outfitted its cars with "defeat devices" designed to trick emissions testing into believing the cars complied with federal and California requirements when they did not. Despite clearly favorable law cited in CCL's brief, the court reduced individual punitive damage awards from $25,000 each to an arbitrary ratio of 4:1, vastly reducing the damages. The cases are now on appeal to the Ninth Circuit.
  • CCL also filed supplementary authority in Smith v. Surgery Center, a challenge to Colorado's medical-malpractice damage cap, pending in the state court of appeals.