News

    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. 

     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.

     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.

     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 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 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 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.

     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.).

    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.

      CCL's Robert S. Peck argued significant cases in the Fifth and Ninth Circuits in February, participated in proceedings in the American Bar Association's House of Delegates, and filed briefs in a number of cases.

       In the Fifth Circuit, Peck argued that the District Court in In re Chinese-Manufactured Dry Wall Litigation, correctly held that the States of Virginia, Florida, and Louisiana had personal jurisdiction over the Chinese parent companies of their manufacturing subsidiary and are properly responsible for the liability in the cases that were consolidated into the Eastern District of Louisiana. Subsequent to the argument, a settlement was finalized, covering the vast number of cases that were part of the appeal. As a result, the parties submitted a joint motion to dismiss the Virginia cases, all of which had settled, leaving the Court to determine jurisdiction with respect to a handful of cases from Florida and Louisiana, where plaintiffs were not part of the settlement.

     In the Ninth Circuit, Peck argued that the City of Oakland, California had sufficiently alleged proximate cause to survive a motion to dismiss its Fair Housing Act claim against Wells Fargo, which it accused of discriminatory mortgage lending. The District Court had agreed with Oakland. Since that trial-level decision, the Eleventh Circuit had made a similar ruling permitting Miami, Florida to proceed in cases against Wells Fargo and Bank of America.

     After the banks petitioned the Supreme Court for further review and Miami had opposed in briefs written by Peck, the City decided to dismiss its cases. After Peck filed a suggestion of mootness with the Supreme Court, the Court granted the petitions and vacated the Eleventh Circuit's decision. The Ninth Circuit then requested and received supplemental briefs from Peck and from Wells Fargo on the significance of the decision vacating the Eleventh Circuit's decision. Peck argued that the decision still has the same persuasive value it had before being vacated and was the correct determination.

     In addition to these arguments, Peck presented a resolution at the ABA House of Delegates meeting in Austin, Texas, where the ABA endorsed the idea of "incorporating" the Seventh Amendment, the process by which the Supreme Court has applied portions of the Bill of Rights to the States. In recent years, the Supreme Court has shown renewed interest in the incorporation process, incorporating the Seventh Amendment's right to bear arms and the Eighth Amendment's prohibition against excessive fines. This term, it is considering incorporating the Fifth Amendment's unanimous jury-trial rule. The only amendment wholly unincorporated are the Third Amendment's ban on forced quartering of troops and the Seventh Amendment's right to jury trial. Peck also played a key role in the shaping and consideration of other resolutions at the meeting.