News

     The District of Columbia Courts announced today Center for Constitutional Litigation President Robert S. Peck has made its 2019 Pro Bono Honor Roll with "High Honors," the highest recognition it gives. The program, which dates back to 2011, is a joint project of the courts, the D.C. Access to Justice Commission, and the D.C. Bar Pro Bono Center. In awarding high honors to Peck, the courts recognize that he has provided more than 100 hours of pro bono legal work.

     CCL President Robert S. Peck said that advocates on a wide range of issues were looking at the Supreme Court's newest member in calculating the likelihood that they can get their issues reviewed in that court, in an interview with WUSA9, the Washington, DC CBS affiliate. He emphasized that, at this earliest stage of her tenure, people are making what may best be described as educated guesses at how she might view any particular issue

     As an example, he noted that the Mississippi Attorney General had just filed a supplemental brief that was plainly written with newly confirmed Justice Amy Coney Barrett in mind in seeking review of a state statute that eliminated any right to abortion after the 15th week of pregnancy. The case, Dobbs v. Jackson Women's Health Org., goes to conference on October 30, where the Supreme Court could decide whether to take the case for plenary review and, if it takes the case, could decide whether Roe v. Wade remain a viable precedent. The brief makes the calculation that Justice Barrett would provide the vote necessary to approve the restriction that otherwise could not be reconciled with existing abortion precedents.

     CCL President Robert S. Peck told TRIAL magazine that oral argument in a major personal jurisdiction case before the Supreme Court demonstrated unexpected dissatisfaction by members of the Court with their recent jurisprudence. Over the past decade, the Court has increasingly restricted the authority of state courts over out-of-state defendants.

     However, in Ford v. Montana Eighth Jud. Dist. Ct., consolidated with another Ford case from Minnesota, the justices seemed to realize that it made little sense to say that there was some type of fundamental unfairness to making Ford appear in the Montana and Minnesota courts for injuries that occurred in those states from an allegation of product defect. In both instances, the vehicle was originally sold in another state, but the same model was sold and serviced in the forum states.

      Ford asked the Court to rule that it may only be sued in its place of incorporation, its headquarters state, the state where the car was manufactured, or, possibly, the place of first sale. Justices who had been part of the precedents that had restricted jurisdiction questioned the meaning of fair play under the Due Process Clause, that had led to a narrowing of personal jurisdiction. 

     The case, originally slated to be argued last April but postponed due to the pandemic, will be decided before the current Supreme Court term ends next June.

     The U.S. District Court for the Eastern District of California denied a motion to limit the discovery the City of Sacramento could take in connection with its allegations that Wells Fargo & Co. had issued discriminatory mortgage loans in violation of the Fair Housing Act (FHA). CCL's Robert S. Peck argued the motion for the City on March 6. The court indicated that the coronavirus pandemic delayed resolution of the argued motion before today.

     The City alleged that, since 2004, the bank had issued loans that were either more expensive or riskier on the basis of race, resulting in a significant number of foreclosures to minority borrowers and reducing the City's property-tax revenue. Wells Fargo, which had used the same tactic in other similar cases, moved to bifurcate discovery, limiting the scope of discovery to the two-year period before the complaint was filed and then challenging the City to prove its entire case on that basis before being permitted to show a continuing violation.

     Peck argued, and the court agreed, that the information then obtained would not be statistically significant and would be inconsistent with U.S. Supreme Court FHA jurisprudence that treats continuing-violations, as defined in the statute, differently from isolated violations. The court held that limiting the period of discovery to the two-year period would unfairly handicap the City's case and denied Wells Fargo's motion.

     The case now moves into the discovery phase.

     The Center for Constitutional Litigation, working with Paul A. Rothstein, P.A., told the U.S. Court of Appeals for the Seventh Circuit that Best Buy's Geek Squad Protection Plan is a warranty under the federal Magnuson-Moss Warranty Act and that it should reverse dismissal of this action by the district court in an opening brief filed today.

      Tawanna and Anthony Ware purchased a $3,000 Samsung plasma television from Best Buy after its sales people and store manager advised them that the warranty that comes with the television is generally worthless because the electronic will work fine for the warranty period. They advised purchasing the protection plan to extend the warranty, protect themselves from failures of materials and workmanship for a five-year period. They made the sale more attractive by giving the couple a $300 discount if the extended warranty was purchased. 

      When the television failed after Samsung stopped manufacturing plasma televisions and could not be fixed, Best Buy reneged on the promised to replace or refund the full purchase price, claiming that the plan was actually a service plan, not a warranty. The Wares brought suit in a putative class action under Magnuson-Moss, but the case was dismissed because the Court credited an Federal Trade Commission regulation that distinguished warranties from service contracts if extra consideration was paid. The fact that Best Buy called and promoted the plan as a warranty and treated the television and plan as a single transaction in a bundle did not move the district court. Meanwhile, Magnuson-Moss itself defines a warranty as part of the same transaction if it was part of the basis for the bargain. The conflict between the statutory language and the regulation is at the heart of this consumer action. Today's filing is the start of the briefing process.

     CCL President Robert S. Peck explained to viewers of the Washington, DC CBS station how cases reach the United States Supreme Court and why various groups are focused on who will replace the late Justice Ruth Bade Ginsburg. 

     Peck's interview covered the Supreme Court's processes, including petitions for certiorari, as well as some of the cases now in the pipeline for possible decision by the Court for WUSA-9.

     CCL President Robert S. Peck spoke today in a preview of the upcoming U.S. Supreme Court term sponsored by the Law and Economic Center of the Antonin Scalia Law School at George Mason University. 

      During the hour-long online program, Peck and John Beisner, a defense counsel from the Skadden Arps law firm, discussed upcoming cases on personal jurisdiction, the authority of the Federal Trade Commission to seek consumer restitution for deceptive lending, mandatory arbitration, and the judgment bar in the Federal Tort Claims Act, as well as answered questions from the online audience.

     CCL President Robert S. Peck told WUSA9, the Washington, DC CBS affiliate, that the Constitution imposes no qualifications on a nominee for the Supreme Court. 

     As he explained, there is no requirement that a nominee be a lawyer, although all Supreme Court nominees had legal backgrounds. When Gerald Ford was president, there was a brief discussion that he might consider a constitutional historian, however, Ford nominated Justice John Paul Stevens. 

     While theoretically, a nominee might need the same qualifications imposed by statute of any appointee to federal service, the Constitution puts its trust that a president would not name and the Senate would not confirm someone without certain generally agreed-upon qualifications.

     Today, CCL filed a petition for certiorari in the Supreme Court in City of Miami Gardens v. Wells Fargo & Co., a Fair Housing Act case brought by CCL's client, Miami Gardens, over discriminatory mortgage lending by the bank.

      The U.S. Court of Appeals for the Eleventh Circuit threw out Miami Garden's case on its own motion, raising issues about the city's standing to pursue the action. CCL argues that the Court of Appeals wrongly raised that question in the course of an appeal on whether the city met the statute of limitations, a narrow question on which discovery had been limited. To answer the question that was not raised by the trial court, the defendant, or any of the briefing, CCL's Robert Peck had argued would have required the trial court to permit discovery over loans originated before the limitations period. as both U.S. Supreme Court and Eleventh Circuit precedent holds. 

     After the ruling, CCL petitioned for rehearing en banc, which was denied. Still, a dissent from that denial written by Acting Chief Judge Wilson and joined by another judge, charged that the Eleventh Circuit panel's action was the equivalent of a teacher taking away a student's pencil, giving an exam, and then failing the student for turning in a blank paper.

     The Supreme Court petition asserts that the Eleventh Circuit's decision conflicts with a 2015 U.S. Supreme Court's decision that found the same tactic by the same judge violated elementary notions of fundamental fairness and asks that it be reversed.

     Wells Fargo is expected to file a brief in opposition to the petition, to which CCL will write a reply.

     CCL filed a brief today in the U.S. District Court for the Central District of California defending a jury's assessment of punitive damages against Chrysler for misrepresenting the reliability of the electrical system in a 2012 Jeep.

      In the case, a couple had purchased a 2011 Jeep that had severe electrical system problems that resulted in the vehicle not starting or stalling unexpectedly while on the road. The problems were traced to a module that controlled the electrical system that Chrysler had introduced in 2007, failed repeatedly, and eventually was abandoned by Chrysler. When the couple decided the vehicle was a lemon, Chrysler offered to replace it with a 2012 model that it assured the couple had resolved the problems they experienced. Accepting the offer, the couple soon found the same problems plagued the newer model.

      After Chrysler proved incapable of fixing the car and refused to refund the money, the couple sued. A jury found for the couple, awarding compensatory damages and civil penalties under California's lemon law, as well as compensatory and punitive damages for fraud. The judge, however, took the jury verdict for fraud away, finding the evidence insufficient to support the verdict.

      CCL's Robert Peck argued the appeal of that decision. The U.S. Court of Appeals for the Ninth Circuit restored the fraud verdict, finding the evidence sufficient, but remanded the case to the district court to make a new determination on punitive damages. Today's brief addressed why the punitive damages were supported by clear and convincing evidence, met the criteria for awarding punitive damages under California law, and were not constitutionally excessive.