CCL's Peck Participates in ABA House of Delegates Meeting

February 22nd, 2021

     CCL President Robert S. Peck voted on a variety of resolutions, including ones that addressed disputes over the 2020 presidential election, during the course of the American Bar Association's House of Delegates meeting, which took place virtually. Peck is one of three delegates representing the ABA Trial, Tort, and Insurance Practice Section. 

     One resolution laid out basic principles about the conduct of elections and urged Congress to give "controlling effect" to the popular vote winner in that jurisdiction. A second resolution urged adoption of laws that prohibited the possession or display of firearms by persons other than governmentally authorized military personnel, law enforcement, or security forces around specific areas where legislative debate is taking place or ballots cast.

VW Emissions Opt-Out Plaintiffs File Opening Brief

February 12th, 2021

     Seven sets of plaintiffs who opted out of two classwide settlements and tried their individual cases together filed their opening brief arguing fundamental errors in their cases that resulted in small-damage awards in most of the cases, and no liability in two cases. CCL was part of the legal team that drafted the brief.

     Riley v. Volkswagen of America grows out of a multi-year fraud in which Volkswagen used a "defeat device" to prevent government officials from realizing that the cars the company sold as "green" vehicles, with especially lowered emissions, actually spewed pollutants at 40 times the maximum level set by law. A program in the cars would adjust pollution levels to meet government requirements when a measuring rod was placed inside the tailpipe, giving a false reading of compliance. After the fraud was discovered, Volkswagen was subjected to a variety of criminal and civil penalties, and purchasers of the vehicles sued. Cases filed in federal courts across the country were consolidated for treatment in the U.S. District Court for the Northern District of California. Two class settlements came out of that courts, but a number of disaffected plaintiffs opted out of the settlements, seeking their own day in court on their complaints.

     The Riley plaintiffs were Californians who sought redress under the state's strong consumer protection laws. Under one, the Song-Beverly Act, the state's lemon law, the inability to fix a vehicle to meet the seller's promises results in damages that can be three times the sales price, plus attorney's fees. Judge Charles Breyer, presiding over the case, dismissed claims under the Act on the grounds that the vehicles were still operable, even if they did not meet the environmental standards that were promised and were the motivation for buying these particular cars. 

     In addition, the judge ruled against claims under the Consumer Legal Remedies Act, holding that the settlement offer was a "reasonable accommodation," which forgives potential liability for good-faith mistakes that are immediately corrected. He further held that claims for common-law fraud, which succeeded before the jury, only permitted meager damages for the difference in the vehicles' value with and without proper environmental controls, despite being illegal to sell as a new vehicle at the time of sale. Judge Breyer also reduced punitive damages of $25,000 per case assessed by the jury to a range of $2,328 to $12,532, a 4:1 ratio, even though larger ratio is constitutionally permissible when compensatory damages were small, as here.

    The brief details the errors made by the judge on these issues, as well as other evidentiary and procedural matters. Volkswagen's responsive brief is not expected until July.

Peck Continues to Answer Press Questions about Impeachment

February 12th, 2021

     CCL President Robert S. Peck continues to serve as a source for reporters covering the second impeachment trial of Donald Trump. Answering an array of questions about procedures, constitutional requirements, the legitimacy of trying a former president, the First Amendment and incitement, and other related topics, Peck has provided answers to CBS stations across the country,, the Scripps-Howard network, Newsmax, and USA Today. 

     In his interviews, Peck has said that the Constitution does not bar a Senate trial of a former president who was impeached while still in office and that the First Amendment provides no basis for exempting the January 6 exhortation of people gathered by the then-president for the explicit purpose of stopping the Electoral College count from conviction in an impeachment trial. He has also explained the "imminent lawless action" standard declared by the Supreme Court in Brandenburg v. Ohio (1969), as well as the rudimentary understanding of constitutional issues that defense counsel has shown in their briefing and time on the Senate floor.

Peck Assists Cruise Liability Case

February 11th, 2021

     In Morrison v. Royal Caribbean Cruises, a federal magistrate judge must determine issues of liability and law after a three-day trial, in which the Miami's Aronfeld law firm represented the plaintiff, injured when she tripped over an out-of-place, marble-based ashtray in the ship's casino. Prior to decision, the judge asked both sides to offer a draft findings of fact and conclusions of law. Yesterday, plaintiff's counsel filed their proposed fact and legal conclusions, with an assist from CCL's Robert S. Peck.

     The plaintiff's injuries were severe, as the wine glass in her hand shattered and glass was embedded in her face, while also causing mild head trauma from a concussion. The cruise line sought to defend by asserting that the plaintiff was intoxicated on the basis of less then three glasses of wine over a six-hour period of time, on the open and obvious nature of the two-foot tall heavy ashtray, even if obscured by a stool, and by the ship's lack of notice that the ashtray was out of place. Peck's legal analysis provided the court with several different precedents to demonstrate that notice was established based on the facts -- from a witness's testimony that the ashtray was out of place for about 30 minutes, from Royal Caribbean's acknowledgement that guests using slot machines will often move the ashtrays and that crew members are responsible for patrolling the narrow aisles and putting them back in place, and from prior incidents involving the ashtrays. 

     The case is now under advisement.

Peck Explains Impeachment Issues on

February 8th, 2021

     On the cusp of the Senate impeachment trial of former President Donald Trump, CCL President Robert S. Peck told that the vast majority of constitutional scholars and lawyers agree that there is no constitutional bar to trying a former president.

      In response to a question about some senators claiming the trial is unconstitutional, Peck pointed out that the Constitution gives the Senate exclusive responsibility for trying all impeachments -- and that this impeachment took place while the Trump was still president. He added that a Senate conviction also allows that body to punish him with a vote that Trump could not again hold federal office. Even if no conviction occurs, the trial would have an important role in the court of history, Peck added.

Fifth Circuit Hears Argument on Personal Jurisdiction Issue

February 4th, 2021

     CCL President Robert S. Peck told a federal appeals court yesterday that personal jurisdiction over a Japanese defendant for a collision between its container ship and a U.S. Navy destroyer comported with due process and the circuit's precedents, requiring that the district court's contrary decision be reversed.

     The lawsuit grows out of a 2017 collision in which the U.S.S. Fitzgerald suffered a significant gash that flooded compartments where the killed and injured sailors were. Personal jurisdiction was premised on a federal rule of civil procedure, Rule 4(k)(2), which applies to lawsuits based on federal law where no state court would have jurisdiction. The district court, sitting in the Eastern District of Louisiana, superimposed a requirement that the foreign defendant also be "at home" in the U.S. Peck asserted that that was error before a panel of the U.S. Court of Appeals for the Fifth Circuit.

      Instead, Peck argued that existing precedent was unimpaired and that it merely required sufficient national contacts. Opposing counsel conceded that, if a national contacts rule applied, his client, NYK Line, did have sufficient national contacts. 

      Peck added that an "at home" overlay would render Rule 4(k)(2) a nullity, for it would apply to no instances at all. If a defendant was "at home" in the United States, then it would necessarily be subject to jurisdiction in some state's court. As a result, the rule would never apply to any instance and would be considered unconstitutional if the "at home" requirement were considered a function of due process.

      The case is now under advisement.