Seventh Circuit Vacates Magnuson-Moss Decision, Opens Door to State Court Filing

July 29th, 2021

     In an opinion issued today, the Seventh Circuit held that both it and the district court lacked subject-matter jurisdiction in a putative class action that was filed against Best Buy's Geek Squad Protection Plan (GSPP). 

      The case began when a couple purchased an expensive television set from Best Buy that utilized the now-abandoned plasma technology. Best Buy urged them to purchase the GSPP as an extended warranty and offered a discount on the television set if they did. The couple purchased the GSPP. When the television set failed, Best Buy was unable to repair it, offering instead a refund of the depreciated value of the television or a much cheaper replacement, informing the couple that the GSPP is a service plan, not a warranty as their advertising states.

      The district court dismissed the action, holding that under federal regulations, a warranty cannot require extra payment, and the purchase of the GSPP prevented it from being considered a warranty under the Magnuson-Moss Warranty Act. On appeal, CCL argued for the couple that the regulation had no basis in the statute and allowed Best Buy to misrepresent its service contract as a warranty, precisely the evil that the Magnuson-Moss Act was designed to prevent.

      The Seventh Circuit's decision in Ware v. Best Buy did not address the substance of the arguments, but found that subject-matter jurisdiction was lacking, even though neither party nor the lower court raised the issue. Under Magnuson-Moss, jurisdiction lies in federal court only if a purported class action actually names 100 individual plaintiffs. That was lacking in the complaint. Recognizing the possibility of dismissal on jurisdictional grounds, CCL filed a supplemental brief for the plaintiffs, suggesting both other ways that jurisdiction could be asserted, as well as a request that the adverse district court decision be vacated so the Wares could refile in state courts. The Seventh Circuit took the latter approach.

Preliminary Injunction Sought on New Florida Advertising Prohibition

July 23rd, 2021

     CCL's Robert S. Peck filed a motion for a preliminary injunction against a new Florida law that restricts roofing contractors from advertising that encourages homeowners to make a valid insurance claim or assigning the insurance benefit to the contractor, all of which are standard, legal practices in the state, as well as a variety of other provisions that prohibit speech but not the practice.

     The new law went into effect on July 1. Shortly before CCL's motion on behalf of the Restoration Association of Florida, Apex Roofing and Reconstruction, and a homeowner, another judge in the same court issued a preliminary injunction against the advertising provision in a different case that did not address other provisions in the law. 

     The law was enacted to prevent insurance fraud, but, as the CCL motion argues, it is utterly unconnected to the State's objectives. The case was filed in the U.S. District Court for the Northern District of Florida.

Peck Publishes First Contribution to Appellate Advocacy Blog

July 18th, 2021

     As his first contribution as a contributing editor to the Appellate Advocacy Blog, CCL's Robert S. Peck wrote about whether oral advocacy advice written 80 years ago by Justice Robert H. Jackson still holds up. The Appellate Advocacy Blog is a part of the Law Professor Blog Network.

     Before he served as a justice on the Supreme Court, Jackson had been both Attorney General and Solicitor General. It was in the latter role that Justice Louis Brandeis complemented Jackson's work with a statement that Jackson should serve as Solicitor General for life. Still, Jackson displayed all the same self-doubts that other advocates do, saying he always composed three arguments, the one he planned, the one that he actually gave in the face of tough questioning, and the one he thought afterwards that he should have given.

     Jackson's article, written for the ABA Journal in 1951, contained practical advice on oral argument. Some of it plainly reflects an earlier era that no longer exists, where judges were apparently less prepared than today. Other advice remains consistent with contemporary ideas about oral advocacy. 

     The blog posting can be found at Appellate Advocacy Blog.

Fifth Circuit Grants CCL Petition for Rehearing En Banc in Important Personal Jurisdiction Case

July 2nd, 2021

     The U.S. Court of Appeals for the Fifth Circuit has granted a petition, filed by CCL, for rehearing en banc on the application of Federal Rule of Civil Procedure 4(k)(2) to a foreign defendant in an admiralty case. 

     The survivors and family of U.S. Navy seamen had sued a Japanese corporation over a collision at sea that killed seven sailors on a the U.S.S. Fitzgerald and injured forty others. A federal court in New Orleans had thrown the case out, holding that personal jurisdiction was not available in the U.S. courts over the defendant because it is not "at home" in the U.S. On appeal, CCL's Robert S. Peck argued that the decision effectively rendered the rule, approved for precisely these situations, unconstitutional in all its applications because it also requires that any defendant subject to the rule not be within the personal jurisdictional reach of any state court. That provision cancels out the one imposed by the district court as a matter of due process, effectively voiding the rule, which was promulgated at the request of the U.S. Supreme Court.

     A panel of three judges in the Fifth Circuit agreed with Peck's argument, but said that their hands were tied because of a 2016 precedent in the circuit that they believed was wrongly decided. They urged the entire Fifth Circuit to take up the matter in order to overrule the precedent. Peck's petition for rehearing en banc provided the vehicle for that rehearing, while the Japanese defendant opposed rehearing and insisted that the prior precedent was correctly decided. Today's order vacated the panel's decision, set a new briefing schedule, and put the case on the September oral argument calendar.

Louisiana Governor Vetoes Attorney Advertising Legislation as "Likely Unconstitutional"

July 2nd, 2021

     Louisiana Governor John Bel Edwards vetoes S.B. 43, a bill intended to restrict attorney advertising and based on the same legislation that CCL successfully argued was unconstitutional in West Virginia. CCL's Robert S. Peck testified against the Louisiana bill in the Senate and House Commerce Committees, explaining why it was unconstitutional. The legislation, nonetheless, was approved by both Houses. 

     However, the governor vetoed the bill, ending its journey into law. In May, a federal district court declared the West Virginia version of the bill unconstitutional in a case brought by CCL with the Segal Law Firm. The State of West Virginia has, however, appealed the decision, and a briefing schedule for the appeal has now been set.