Peck Advises Advocates to "Answer the Question"

November 21st, 2021

     CCL President Robert S. Peck passed along advice from a federal circuit judge to "Answer the Question" in his biweekly posting on the Appellate Practice Blog today.

     The advice came from Fifth Circuit Judge James Earl Graves, Jr. on November 13 during the 2021 Summit of the Appellate Judges Education Institute. Judge Graves lamented the fact that, too often, oral advocates are so determined to make their point that they fail to answer the judges' questions. Because it is the judges who will decide the case, answering the question is critically important, even when the question indicates confusion on the questioner's part.

CCL's Peck Moderates "Conversation with the Chief Justices"

November 18th, 2021

     During a discussion moderated by CCL President Robert S. Peck, twenty-four state supreme court chief justices discussed lessons learned during the pandemic and what the courts might take away from the advancements in technology and remote access that the courts were required to adopt. 

     A consensus emerged that, although live presentations are generally preferable, the option of providing remote opportunities to interact with the court for shorter sessions should be available to save time and money in traveling to court for a brief audience with the judiciary. Several states established remote access points to enable those without Internet access or computers to take part in court proceedings.

     The session was part of the National Center for State Courts (NCSC) meetings in Washington, DC. The Conversation with the Chief Justices is held in conjunction with the Conference of Chief Justices, the NCSC Lawyers Committee, and the NCSC General Counsels Committee. 

Peck Speaks about Supreme Court Term at Appellate Judges' Summit

November 12th, 2021

     CCL's Robert S. Peck told judges and appellate lawyers meeting in Austin, Texas that the current Supreme Court term will expose even more fissures between the justices on issues that have implications for the nation's political climate than last term when Justice Amy Coney Barrett joined the Court.

      In a morning session of the 2021 Appellate Judges Educational Institute, Peck joined Washington, DC lawyer Kannon Shamugam and Texas lawyer Jaime Santos in previewing, and, in some cases reviewing, October Term 2021. The discussion included cases on abortion, guns, religion, and civil rights. The four-day summit is one of the premier appellate education events each year and is sponsored by the National Judicial College.

Peck Attends ALI Consumer Contracts Session

November 11th, 2021

     Resuming the process of writing a restatement of the law on consumer contracts after a two-year hiatus due to controversy, the American Law Institute conducted a virtual members' consultative group meeting on the newest draft sections. CCL's Robert S. Peck, as a member of the consultative group, attended the meeting.

     When what was intended to be a final draft was discussed in May 2019, members objected to provisions that many regarded as dated and insufficiently protective of consumer interests. Only the definitional section of the restatement won approval as the following sections were debated at length without a vote. The new draft attempts to address some of the criticisms but, at the meeting, still proved subject to much questioning and to many suggested changes. A revised draft is expected next year.

CCL Contributes to Reply Brief in VW Emissions Appeal

November 11th, 2021

     In a reply brief filed in the Ninth Circuit, CCL joined co-counsel in arguing that the district court misunderstood federal and state law in eliminating one cause of action, limiting evidence, and reducing punitive damages in bellwether cases that opted out of the global settlement of the Volkswagen emissions scandal.

     For a nine-year period of time, Volkswagen employed a "defeat device" in certain cars sold as "green" vehicles that tricked emissions tests into registering low carbon emissions rates when the cars actually emitted 36 times the permissible levels of pollution. Buyers who purchased the cars across the United States sued over the misrepresentations. Volkswagen, which pleaded guilty to charges emanating from the scandal in both the U.S. and in Europe, settled with most buyers in a multi-district litigation heard in federal court in San Francisco.

     Nine purchasers who opted out of the settlement chose to try their cases. Under the terms of the joint trial, VW admitted liability but challenged the claimed damages. The purchasers brought several causes of action, including claims under California's lemon law and its consumer-protection law. However, the court treated the settlement offer made prior to the lawsuits as a bona fide attempt to settle the claims, throwing out the consumer-protection cause of action. The reply brief asserts that this was error because the settlement did not qualify as an offer under the law and included a waiver of other claims, which is inconsistent with California precedent. The court also ruled the cars fit for driving, even though the California statute has more rigorous requirements, including one that bars mislabeling the vehicles.

    Four of the plaintiffs won jury verdicts of $25,000 each in punitive damages. The court reduced those verdicts to a 4:1 ratio, putting each punitive-damage award under $10,000.  The reply brief argued that this misconstrued Supreme Court precedent that has rejected mandatory ratios and permits higher punitive damages when the compensatory damages are small.

    The case is due to be argued December 10.


CCL's Peck Quoted in Bloomberg Law Story on Vaccination Mandates

November 9th, 2021

     With the Biden Administration's vaccine mandate for large employers due to go into effect in January, the Fifth Circuit and several other courts are considering challenges that seek to stop the mandate. In a story on the Bloomberg Law website, CCL's Robert S. Peck is quoted that, strategically, the administration might wait to see what different courts decide initially before seeking the U.S. Supreme Court's intervention, given that there is still time before the mandate is due to go into effect.

     The story can be found at White House Biding Its Time in Fight Over Shot-or-Test Mandate.


Peck Blog Post Rejects Suggestion to Name Supreme Court Building

November 7th, 2021

     CCL President Robert S. Peck argued against a suggestion to rename the Supreme Court building after the first Justice John Marshall Harlan, a topic of discussion because of an advocacy piece published by Politico. In his biweekly post in the Appellate Advocacy Blog, a part of the law professors blog network, Peck called the suggestion provocative, but ultimately inconsequential because it was unlikely to occur.

     The suggestion by Sarah Isgur, nonetheless, was fun to discuss, Peck said, because it caused some reflection both on the Court and Justice Harlan. Still, he concluded that a building dedicated to the rule of law and not of men should not be named after any individual. Moreover, to Isgur's suggestion that it would help tell the Court's story, Peck said that the Court's story was better told through its decisions. The blog posting can be found at A Provocative Suggestion to Name the Supreme Court Building After a Single Justice.

CCL's Peck Presents Paper at Hastings Law School

November 6th, 2021

     CCL President Robert S. Peck told conference attendees at Hastings Law School in San Francisco to expect a new revolution in products liability because technology changing the relationship between a manufacturer and buyer. The presentation was part of a two-day academic symposiums, "The Internet and the Law: Legal Legal Challenges in the New Digital Age," cosponsored by the Pound Civil Justice Institute and the UC Hastings Center for Litigation and the Courts.

     Peck described today's "smart" or connected products as providing a continuous connection between the manufacturer and the product. Through data retrieval, security updates, and other over-the-air connections that occur without intervention by the user, the manufacturer maintains contact with the device. In many instances, while the purchaser owns the hardware, the software remains in the manufacturer's name and is merely licensed to the user. This co-ownership arrangement, Peck said, has the potential to change standards for personal jurisdiction and reinvigorate strict liability. He further described the historical development of products liability, which has taken several revolutionary leaps in response to changing technology, first with the development of railroads and, most prominently, with the invention of automobiles.

     Papers from the academic symposium will be published in a future issue of the Hastings Law Journal. For more information on the symposium, see The Internet and the Law.

CCL Opposes Motion to Dismiss in First Amendment Case

November 3rd, 2021

     In a brief filed today, CCL argued that the State of Florida's motion to dismiss two counts in a First Amendment challenge it filed should be denied.

      In RAF v. Brown, CCL has challenged the constitutionality of a 2021 state law that prevents roofing contractors from doing anything that might encourage a homeowner to make a claim under the homeowner's insurance policy. The law transparently attempts to keep homeowners in the dark about the coverage that the policy they have paid for might provide. On November 22, CCL will argue in favor of a preliminary injunction on the law.

       Even while that motion for injunctive relief remains pending, the State has sought to dismiss two minor claims relating to whether the law violated the impairment of contracts provision in the U.S. Constitution and one argument against a provision that imputes legal violations of third-parties to contractors. 

       The brief filed today argues that Florida's complaint about the skeletal nature of two sentences in the complaint fails to read the complaint as a whole and the much more substantive description of the claims that becomes evident from that reading. No date has yet been set for argument on the motion for a partial dismissal.

Ninth Circuit Grants Stay of Mandate

November 2nd, 2021

     The U.S. Court of Appeals for the Ninth Circuit granted CCL's motion for a stay of its mandate in City of Oakland v. Wells Fargo & Co

      The case originated in 2015 when Oakland sued Wells Fargo for allegedly giving minority borrowers more expensive and riskier loans than it provided to non-minority borrowers with similar credit characteristics. Oakland, represented by CCL and other lawyers, successfully staved off a motion to dismiss on standing grounds. In 2017, the Supreme Court, in a case argued by CCL President Robert S. Peck on behalf of a similar lawsuit brought by Miami, also held that cities have standing under the Fair Housing Act to bring suits for lost property taxes and increased municipal spending due to discriminatory lending practices. 

      The Court, however, left open the question of what must be pleaded to meet proximate cause and whether Miami's complaint satisfied that standard. Wells Fargo then brought a motion to dismiss in Oakland, arguing that the city failed to sufficiently plead proximate cause. The federal district court found that the Bank was correct as to the damages Oakland claimed from municipal expenditures because the city offered no statistical analysis that might support the claim, but found the regression analyses Oakland included in its complaint sufficient to meet proximate-cause requirements for its lost property-tax claim. 

      Wells Fargo appealed, and in 2020, a three-judge court unanimously held that Oakland had indeed met the proximate-cause standard in its claim for lost property taxes. Wells Fargo then petitioned for rehearing en banc with the Ninth Circuit, and the case was reheard by an 11-judge court. This time, however, the court unanimously held that Oakland could never meet the proximate cause standard that applied because the FHA was only available to direct borrowers, the federal government, and some advocacy organizations as a vehicle for challenging discrimination, a position that seemed at odds with the Supreme Court's 2017 ruling in the Miami case. 

     CCL, on behalf of Oakland, sought a stay of the mandate, which ordered the district court to dismiss the case with prejudice. Today, the Ninth Circuit granted that stay, over Wells Fargo's objection, so Oakland could seek further review in the Supreme Court.