News

     In a supplemental brief filed in the U.S. Court of Appeals for the Fifth Circuit, CCL's Robert S. Peck asked the court to overturn a 2016 decision on personal jurisdiction that stands in the way of litigating seven deaths and 40 injuries to U.S. Navy personnel when a container ship struck the U.S.S. Fitzgerald, a U.S. Navy destroyer in 2017 in the Sea of Japan. 

      The case was originally dismissed in federal district court in New Orleans because the judge ruled that the Japanese company operating the container ship was not subject to personal jurisdiction in the United States because it is not "at home" in this country. On appeal, Peck argued that the "at-home" requirement essentially rendered a federal rule of civil procedure unconstitutional as a product of due process, effectively saying that the Supreme Court and Congress got it wrong when Rule 4(k)(2) was promulgated. A panel of the Fifth Circuit agreed with him, but found that a 2016 precedent was an obstacle to ruling in the sailors' favor under the rule of orderliness. 

     Peck petitioned the Fifth Circuit to take up the matter en banc, where it would have the authority to overrule the errant precedent. The court agreed to do so, and today's filing was a supplemental brief in support of why the precedent should be overruled. Oral argument before the 17 members of the Court is scheduled for September 21. The case is Douglass v. Nippon Yusen Kabishiski Kusen.

     In a post on the Appellate Advocacy Blog, CCL's Robert Peck discusses the value of rhetoric in appellate advocacy: appellate_advocacy/2021/08/do-rhetorical-flourishes-have-a-place-in-judicial-opinions-or-appellate-briefs.html.

     The posting is part of the law professors blog network and looks at a recent law review article that argues that rhetoric, both by advocates and by judges, disserves the judicial enterprise. Peck takes issue with that, though he argues that care must be taken. Still, some of the most influential and most quoted cases in Supreme Court history are both memorable and important because of the use of rhetoric. Some of those turns of phrases, he says, are only appropriate for a judge, because an advocate is in the position of trying to win over a court that may not appreciate the allusion or humor used. Peck, though, finds solace in making use what may otherwise be heated rhetoric when it comes in a quotation from aa cited case.

     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.

     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.

     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.

     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 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.

     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.

     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.

    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.