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     This morning, the U.S. Supreme Court denied certiorari in Airbus Helicopter, Inc. v. Riggs, a case in which Airbus claimed the right to remove a case from state to federal court because it self-certified the airworthiness of its helicopter under a designation from the Federal Aviation Administration. The claim by French aviation manufacturer was that the designation made it a federal officer with a right to have the matter heard in federal court. Today's order from the Supreme Court upheld decisions from the U.S. Court of Appeals from the Ninth Circuit and the federal district court in Nevada that found no basis to treat Airbus as a federal officer. All three courts accepted the arguments against Airbus crafted by CCL's Robert S. Peck.

     The case will now return to Nevada state court for trial.

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     Finding that the plaintiffs are likely to prevail, U.S. District Court Judge John Preston Bailey granted CCL's motion for a preliminary injunction against the operation of a new West Virginia statute that attempted to restrict lawyer advertising related to cases involving prescription drugs and medical devices.

      The statute placed a categorical ban on the use of the word "recall" in connection with drug or medical device advertising by lawyers, even if the manufacturer had recalled the defective product or a court had ordered the manufacturer to take it off the market. It also told lawyers that they could not use words like "consumer alert" or "alert" to catch a potential client's attention in their advertising. It further barred the use of a government agency logo because it might suggest an affiliation with the agency, even though the advertisements contained language indicating that this is a advertisement for legal services. In addition, the judge found problematic a host of disclaimers required by the law, at least two of which he determined were not factual or uncontroversial, as required by First Amendment precedent, but amounted to medical advice.

      CCL handled the case with the Segal Law Firm and represented two West Virginia lawyers, as well as one of the lawyers' clients.

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     CCL's Robert S. Peck argued yesterday that a new statute prohibiting certain language and symbols and adding extensive disclaimers in lawyer advertising violated the First Amendment before the U.S. District Court for the Northern District of West Virginia. The rare in-person argument occurred in the case of Recht v. Justice.

     The statute, passed earlier this year and due to go into effect this month, was aimed at lawyers seeking clients for prescription drug and medical device products liability cases. The law prohibited the use of the word "recall" in all but virtually non-existent circumstances, prohibited the use of words like "consumer alert," and the use of government agency logos when it might leave the impression of affiliation with a government agency. It also required that the advertisements, which included attorney websites, advise potential clients that they should consult a physician before discontinuing any medication, as well as a host of other disclaimers that would take up more than 40 percent of a 30-second television advertisement.

     Peck argued that a preliminary injunction should issue because the extensive disclosure requirements and categorical prohibitions on certain words or images that were true and verifiable violated the First Amendment. West Virginia Deputy Attorney General Curtis Capehart represented the defendants, Governor Jim Justice and Attorney General Patrick Morrisey, and argued that Peck's challenge was solely a facial challenge, not both facial and as-applied, and therefore had a heavier burden to overcome. 

     Judge John Preston Bailey took the matter under advisement.

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     Today, the U.S. Court of Appeals unanimously reinstated the jury's verdict in a case against Royal Caribbean Cruise Lines in a case argued by CCL's Robert S. Peck only one week ago. 

      Edgardo Lebron suffered a triple break of his ankle during a vacation cruise when the ship offered ice skating sessions on board the ship. Lebron was given ice skates with broken laces, while the ice in the rink was poorly maintained after it had been last resurfaced two hours earlier. A jury had ruled in Lebron's favor on both negligence theories: defective laces and rough ice, even though the complaint pleaded those causes of action in the alternative. 

       Nonetheless, the district court judge took the verdict away, ruling that Lebron had to prove both forms of negligence in combination and that insufficient evidence supported the jury's determination that the cruise ship had notice of the gouges and problems with the ice. 

       In seemingly record time, the appeals court found that the judge erred in requiring both causes of action be proven. Still, it held both were sufficiently proven so that a reasonable jury would have found the cruise line negligent on either claim.

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    The U.S. Court of Appeals for the Ninth Circuit reinstated the jury's verdict today in a case against Chrysler, taken away by a judge who held the evidence of breach of warranty insufficient.

     For years, Chrysler had put a electrical control module into its engines as a space-saving feature. It failed with regularity because of the engine's heat and the distance the current had to travel to get to the pump. The plaintiffs' previous Chrysler kept failing for that reason after less than a year. Chrysler assured them that the new model had fixed the problem, but it didn't. They sued.

     A jury ruled in their favor, awarding compensatory and punitive damages. The judge, however, found the evidence that Chrysler had notice of the problem to be insufficient and entered judgment for the defendant.

     Today, the Ninth Circuit held the judge was wrong, that the evidence was sufficient, and that the jury's compensatory damage verdict had to be reinstated. As for punitive damages, because the judge used the wrong standard in evaluating the compensatory damages, the Court ordered him to use the correct one in evaluating whether evidence supported the punitive damages.

     The decision comes on a day in which CCL's Robert S. Peck, who briefed the case, also argued a case in the Eleventh Circuit, as well as filed briefs in courts in West Virginia and California. 

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     CCL had a banner day today, arguing one case in a federal appeals court in Miami (virtually), filing a reply brief in support of a motion for a preliminary injunction in a federal district court in West Virginia, and filing a reply brief on a stay motion in a federal district court in California.

     The argument in the Eleventh Circuit, sitting in Miami, concerned a personal-injury action on a cruise ship. Edgardo Lebron had tried out the ice rink on a cruise ship, but defective laces on his right skate caused him to fall, fracturing his ankle in three places. After a trial, the jury ruled in his favor, but the trial judge took the verdict away from him. Although he pleaded that the injury was caused by either the defective skate or a failure to maintain the ice, the judge insisted that he prove both and then disagreed with the jury on whether he had proven that the ship had notice of the ice issues and should have corrected them.

     CCL's Robert S. Peck argued that the judge had no authority to change the theory of the case to require both alternate causes of action be proven in combination, that the was sufficient evidence of notice that required a jury, rather than a judge's decision, and that the judge had wrongly excluded evidence of similar incidents on other ships, which would have increased the weight of the favorable evidence. The case was taken under advisement.

      In the West Virginia case, Peck is challenging the constitutionality of a statute that restricts advertising by lawyers concerning medication and medical device cases. On March 13, he filed a motion for a preliminary injunction. Today, he filed a reply brief, arguing that the state Attorney General's office, failed to provide a reason to deny the injunction. The Attorney General was supported by amicus briefs from the U.S. Chamber of Commerce and the West Virginia Medical Association. The motion will be heard June 23.

      Finally, Peck filed a reply brief in support of a stay pending appeal in the Volkswagen emissions MDL case in San Francisco. Peck is counsel in the appeal and asked the court not to assess attorney fees against the plaintiffs when the verdicts they obtained may change.

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