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     Today, the Ninth Circuit unanimously ruled that the City of Oakland had sufficiently pleaded proximate cause to survive a motion to dismiss in its Fair Housing Act lawsuit against Wells Fargo, N.A. The Center for Constitutional Litigation represented Oakland in this appeal.

     Oakland sued Wells Fargo over its practice of offering minority borrowers more expensive or riskier mortgages than it offered non-minorities, resulting in a disproportionate number of foreclosures and reducing the city's tax base. In another CCL case, Bank of America Corp. v. City of Miami, the U.S. Supreme Court in 2017 had held that cities have standing to bring such lawsuits, but left it to the lower courts to set a standard on what analysis to apply to determine if the alleged injuries were proximately caused by discriminatory lending.

     In the Oakland case, the U.S. District Court agreed with CCL that the city met the standard that ought to be applied, but certified the issue to the Ninth Circuit for review. Today's decision from that court agreed, finding that the text, legislative history and Supreme Court's Miami decision both all support the notion that Oakland's injuries are not too remote from the acts of discrimination to sustain a legal action. In doing so, the Ninth Circuit joined courts in cases brought by Miami, Philadelphia, and Sacramento, all argued by CCL's Robert S. Peck, in upholding the cities' rights. Like those other courts, the Ninth Circuit agreed that Oakland's use of regression analyses made the connection between the FHA violation and claimed injury plausible, the standard applied at the motion to dismiss stage.

     The case now returns to the district court for a determination of whether the same analysis applies to the city's claims for declaratory and injunctive relief, unless the bank seeks review in the Supreme Court, as it has previously.

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     In a hilariously mistitled feature called "This Day in Liberal Judicial Activism," the National Journal today highlighted one of the cases briefed and argued by CCL President Robert S. Peck, before CCL was formed.

      The case is State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), which struck down a state omnibus "tort reform" statute, that attempted to reenact a variety of measures the Ohio Supreme Court had previously struck down and a score of additional similar provisions. In support of its passage, the Ohio Legislature merely noted its "respectful" disagreement with the decisions of the Ohio Supreme Court. In addition to challenging the individual provisions of the legislation, Peck characterized the lengthy enactment as a challenge to the court's authority to resolve the constitutionality of statutes. 

     The court agreed, finding the overall measure a violation of separation of powers. 

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     Agreeing with an amicus curiae brief filed by CCL on behalf of the American Association for Justice, the Ninth Circuit held that the Supreme Court cases of Medtronic v. Lohr (1996) and Reigel v. Medtronic (2008) controlled the decision on preemption in this medical device case. 

      The case concerned defective Bard IVC Filters, which are transplanted into a person's body. Bard argued that the two precedents had been impaired and that a subsequent congressional enactment meant that states could not impose liability for failure to warn of known defects. CCL's brief refuted those contentions, and the Ninth Circuit agreed that they had no merit. 

      The case was In re Bard IV Filters Prods. Liab. Litig., No. 18-16349.

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     CCL filed a petition for a writ of certiorari in the United States Supreme Court on behalf of John Devos, a Minnesota resident injured in the course of his employment in Minnesota. His claim was denied, however, because Devos was employed by a North Dakota company -- and Minnesota's workers compensation law uniquely makes North Dakota workers compensation benefits the exclusive remedy for injuries in Minnesota by employees of North Dakota companies.

     The relevant statutory amendments were added in 2005 when North Dakota's workers compensation system, a state-run monopoly, pleaded that many North Dakota companies could not afford the $600 per year in premiums to cover Minnesota. However, in 2010, the same agency began covering North Dakota employers wherever their employees were sent to work.

     Under the Minnesota statute, if Devos worked for a South Dakota or even a Florida company, Minnesota workers compensation, significantly more generous than North Dakota's, would cover him. Only North Dakota employers receive this special dispensation in Minnesota. 

     The Minnesota Supreme Court dismissed the constitutional challenge without argument, simply finding that the plaintiff had failed to demonstrate why the exemption violated equal protection. 

     The case is Devos v. Rhino Contracting, Inc., No 20-159. Responses to the petition are due September 24.

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