News

    Representing U.S. Navy sailors and their families in a case arising from the the deadly collision between a Japanese-owned container ship and the U.S.S. Fitzgerald, a U.S. Navy destroyer, CCL filed its opening brief explaining that the trial court's decision to throw the case out on personal-jurisdiction grounds amounted to declaring an authorizing federal rule of civil procedure unconstitutional.

    The 2017 crash of the two ships tore open a huge hole in the destroyer, causing compartments on the ship to fill with water, killing seven sailors and injuring 40 others. Rule 4(k)(2) authorizes federal courts to assume personal jurisdiction over foreign defendants who have a substantial and continuing presence in the United States even though the defendant has no specific state where personal jurisdiction naturally lies. Even so, a federal district court held that due process also requires that the defendant be "essentially at home" in the United States.

     CCL's brief argues that the "at-home" requirement is not an aspect of Fifth Amendment due process and wrongly renders Rule 4(k)(2) a nullity and unconstitutional on its face. Moreover, because the case takes place in the category of admiralty law, the district court's ruling undermines traditional admiralty jurisdiction, which the Constitution itself confirms.

     The case now stands in the U.S. Court of Appeals for the Fifth Circuit. 

     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.

     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. 

     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.

     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.

     The Fifth Circuit today held that a federal district court in Louisiana correctly found that it had personal jurisdiction over China National Building Materials Company and its subsidiaries in the long-running multi-district litigation (MDL) over defective Chinese-manufactured drywall that was used to rebuild homes in the aftermath of Hurricane Katrina. CCL's Robert S. Peck, working as of counsel to Herman, Herman & Katz of New Orleans, argued the case in February.

      Finding that the District Court made no error in its analysis, the Fifth Circuit held, per curiam in a non-precedential decision, that it was affirming for the reasons stated by the District Court. At issue in the appeal were cases consolidated in the MDL from Louisiana, Florida, and Virginia. A settlement that included most of the cases became final after the oral argument and eliminated as moot the Virginia cases. The Fifth Circuit also found itself bound by its acknowledgement that Florida state courts had held that there was an agency relationship between the parent and subsidiary companies. The district court had found that, under Louisiana law, the parent company and its subsidiaries were engaged in a single business enterprise. 

     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.

     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.

     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.

     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.