CCL Challenges New Florida Law Limiting Advertising by Roofing Contractors

June 30th, 2021

     Emphasizing the difference between prohibiting speech about legal practices and rendering the practices illegal, CCL today challenged a new Florida law that prohibited roofing contractors from encouraging or inducing Florida homeowners from filing an insurance claim on their existing policies. 

     Strangely, Florida's Department of Financial Services recommends that consumers first talk to a contractor, receive an estimate, and then contact their insurer, if the cost exceeds any deductible on the homeowner's policy by a sufficient amount. The lawsuit challenges that provision on First Amendment grounds, but also challenges other provisions of the new statute, due to go into effect July 1.

      Among its other provisions, the law prohibits contractors from inducing an insurance claim by informing homeowners of their right to assign the benefits of the insurance policy to the contractor. Assignment of benefits is a standard practice that the Florida courts have held cannot be denied by insurers, even if written into its contract with policyholders. The prohibited advertising practices cover the contractors' websites, so that those that are part of a multi-state company would, under the law, have to expunge information about working with the insurers on behalf of the policyholders so that homeowners do not have to front the costs of remediation and repair.

     Violations of the new rules can result in disciplinary action that includes suspension or loss of a contracting license, and fines of up to $10,000 per violation. 

     The case challenging the new law was filed on behalf of the Restoration Association of Florida, whose 300 members work in the repair and remediation industry, as well as Apex Roofing and Restoration, the largest roofing repair company in the Southeast, and a client of Apex roofing.

CCL Argues that Oakland Meets FHA's Proximate Cause Standard before Ninth Circuit En Banc

June 23rd, 2021

     In an argument made via Zoom to a nine-judge en banc panel of the Ninth Circuit, CCL's Robert S. Peck argued that the Fair Housing Act has distinctive proximate cause requirements that are discernible from its legislative history and are met by the City of Oakland's complaint filed nearly four years ago against discriminatory lending practices it alleged Wells Fargo perpetrated on its residents.

     In 2017, the U.S. Supreme Court, in a case argued by Peck held that municipalities have standing to bring actions for lost or diminished property taxes resulting from discriminatory housing practices. However, it explicitly left the proximate cause standard applicable unanswered, leaving it to the lower courts to sort out that question. This case is one of the cases that seeks to answer the question. 

   In his argument, Peck told the Court that standing and proximate cause were not the same but could not be so incongruent that standing exists but a city could never plausibly plead proximate cause. The case is now under advisement.

Plaintiffs Oppose Hospital Group's Intervention in Texas Challenge

June 21st, 2021

    Medical malpractice plaintiffs challenging the constitutionality of a Texas law limiting noneconomic damages filed a memorandum opposing a motion to intervene by the Texas Hospital Association today, written by CCL's Robert S. Peck.

    The THA argues that because the individual plaintiffs were joined by two groups, Texas Watch and the National Medical Malpractice Advocacy Association, two organizations whose members include individual medical malpractice plaintiffs, it should be allowed to become a defendant in the case to provide opposing views as a advocacy organization.

     The CCL memorandum argues that THA makes a potential case for amicus status but does not qualify to become a party, taking discovery, putting on evidence, and otherwise adding to and complicating the proceedings. The statute is already being defended by a multitude of health-care providers who will likely be joined by the Texas Attorney General's office, which is obliged to defend the statute. The opposition to intervention further states that the THA has not identified any claims or defenses it uniquely brings that have common facts or law to those already in the case, as evidenced by the vanilla answer it proposed filing that contained no affirmative defenses. A second requirement THA failed to meet is that they must show that the statute is inadequately defended. The THA motion makes no attempt to do so.

     The case, Winnett v. Frank, is pending in the U.S. District Court for the Western District of Texas.

CCL Files Supplemental Brief in Warranty Action Against Best Buy

June 18th, 2021

     In response to an order from the U.S. Court of Appeals for the Seventh Circuit, CCL and counsel for Best Buy filed simultaneous supplemental briefs addressing whether the Court had subject-matter jurisdiction to hear an appeal in a putative class action over the Geek Squad Protection Plan that was argued by CCL's Robert S. Peck in January.

     In the case, the plaintiffs allege that Best Buy represents to consumers that its plan is a warranty and uses that descriptor in marketing the plan. The district court in the case, however, held that it is not a warranty but a repair plan based on the notion that a purchaser pays extra for the coverage. The plaintiffs contend that the extra payment does not change the nature of the offering, particularly when a discount on the product is offered in conjunction with the plan's purchase. If a warranty, then Best Buy's more limited coverage for a product that cannot be repaired violates the Magnuson-Moss Warranty Act. If not a warranty, no redress can be afforded. 

    The subject-matter jurisdiction issue arises because the Act requires that 100 plaintiffs be named in the complaint to hear the lawsuit in federal, rather than state, court. However, this case was filed in federal court on the basis of diversity jurisdiction over another defendant, Samsung, the manufacturer of the purchased television set, on a state-based consumer protection claim. The Seventh Circuit has long recognized that, in cases like that, it has supplemental jurisdiction over the Magnuson-Moss claim, which is what the CCL brief argued.

West Virginia Appeals Decision Striking Down its Lawyer Advertising Statute

June 15th, 2021

     West Virginia Attorney General Patrick Morrisey filed an appeal today from a federal court's decision striking down a state statute that put restrictions and disclaimers on attorneys advertising for clients in prescription drug and medical device cases. CCL's Robert Peck, working with the Segal Law Firm's Scott Segal and Robin Jean Davis, won the decision in the federal district court for the Northern District of Virginia and will defend the appeal.

      The one-year-old statute never went into effect because of a successful motion to enjoin it. Among other things, it prohibited lawyers from describing a voluntary manufacturer recall of the product as a "recall." It also required attorneys to warn viewers to consult their own physicians before they stop taking any medication, even though that is medical advice, rather than a disclaimer relating to the offer of legal representation. The district court held that the statute violated the First Amendment.

Peck Participates in Status Hearing in Constitutional Challenge to Texas Law Capping Medical Malpractice Damages

June 3rd, 2021

      In a status hearing to resolve certain issues before a scheduling order could be issued, Judge Lee Yeakel discussed how he wanted to avoid procedural posturing and get as quickly to the real issues in the case in Winnett v. Frank, a constitutional challenge to the Texas statutory limits on noneconomic damages in medical malpractice cases. CCL's Robert S. Peck represents the plaintiffs in the action and agreed with the judge that he would seek to avoid skirmishes that have little to do with deciding whether the Seventh Amendment's right to trial by jury prohibits legislative interference with the jury's determination of facts. 

     Peck, along with co-counsel Hartley Hampton, had recently filed an amended complaint that sought to avoid the fights and complications of a plaintiff class action by adding two associations as plaintiffs because their members were involved in medical malpractice cases and the organizations were committed to finding damage caps. No party seemed to object to this means of assuring that standing would exist throughout the course of the litigation, including any appeals. 

     The parties now have sufficient guidance from the judge to develop a proposed schedule for the case.