News

     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 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.

      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.

     CCL President Robert S. Peck made a co-presentation with attorney Deepak Gupta on the results and meaning of the U.S. Supreme Court's latest personal jurisdiction decision, Ford Motor Co. v. Montana Eighth Judicial Dist. Court. The case, both lawyers agreed, was a marked and welcome departure from the past decade of decisions that had substantially narrowed state-court authority over out-of-state defendants.

     Gupta had argued the case before the U.S. Supreme Court and described his strategy of demonstrating the importance of allowing state courts to hear these cases in which the defendant did regular business for the product that had injured the plaintiffs in the state where they resided. He had also recruited amicus support from state attorneys general and small businesses to demonstrate the breadth of interests affected. Peck had written an amicus brief on behalf of the American Association for Justice. In it, he demonstrated that Ford had maintained a relationship both with the owner of used cars, regardless of the state where the vehicle was first purchased and with the vehicle itself through recalls and other notices. He noted that Ford extensively advertised to car owners to use original manufacturer parts, whether the vehicle was self-serviced, serviced at a dealership, or at an independent car shop, under the slogan, "Keep Your Ford a Ford." The unanimous opinion from the Court, written by Justice Kagan, picked that up from Peck's brief, reciting the slogan in the decision's second paragraph.

     In what seems like record time, the U.S. Court of Appeals for the Fifth Circuit ordered a Japanese corporate defendant to respond to the petition for rehearing en banc filed by CCL on behalf of U.S. Navy sailors injured or killed when a container ship operated by the defendant struck the U.S.S. Fitzgerald, on which the sailors served. The petition was filed Friday, and the order of a response came only after the weekend passed.

     The Fifth Circuit warns attorneys and parties that rehearing en banc is disfavored because it saps judicial resources and is rarely granted. However, in this case, the panel that decided the issue made plain that rehearing was in order because the judges in the case felt boxed in by in-circuit precedent that only the entire court, hearing a case en banc, could overturn. The precedent, under what is called the "rule of orderliness," required a ruling against the plaintiffs, but the judges indicated their agreement with the plaintiffs' arguments on why personal jurisdiction under Rule 4(k)(2) of the Federal Rules of Civil Procedure should allow the courts to entertain lawsuits against foreign defendants with substantial and continuous contacts with the United States over a matter related to those contacts, rather than require the foreign defendants also be "at home" in the United States.

    CCL President Robert S. Peck participated in the 2021 Annual Meeting of the American Law Institute, where the organization approved sections of its latest Restatement of Torts dealing with intentional torts. The ALI is a prestigious legal organization that studies and provides authoritative distillations of the law, noting new and useful trends. 

    The current torts project began in 1990 and, with today's approval, has reached only the halfway point of its comprehensive examination of tort law.

     CCL filed a petition for rehearing en banc in the federal Fifth Circuit, asking the Court to overturn an in-circuit precedent that erroneously applies a Fourteenth Amendment analysis to a federal case, in which the Fifth Amendment's due-process clause applies.

     In Douglass v. Nippon Yusen Kabushiki Kaisha, two weeks ago, a Fifth Circuit panel affirmed a district court ruling that there was no jurisdiction over the Japanese corporate defendant, but only did so because of the "rule of orderliness," which prohibits one panel of the court from overruling an earlier panel's precedent. The opinion, and a special concurrence by two of the three judges on the panel, made clear that it believed CCL's argument on behalf of the plaintiffs was correct. The plaintiffs are U.S. Navy sailors and their families who sued over deaths and injuries sustained on the U.S.S. Fitzgerald, a U.S. Navy destroyer, when a container ship under the defendant's control crashed into the destroyer's hull.

    In a 2016 case, a panel of the court interpreted due-process requirements to impose a general jurisdiction analysis to Federal Rule of Civil Procedure 4(k)(2), which meant that the Japanese company, despite a century-old presence in the United States, had to be incorporated in this country or have its headquarters here to be susceptible to personal jurisdiction on a federal cause of action brought in federal court. CCL had argued that the 2016 decision was dicta and not precedential and that is was wrong as a matter of law, because, among other things, the due process analysis would render the rule unconstitutional in all conceivable applications. Instead, it argued a national-contacts rule was applicable, as previous Fifth Circuit precedent had held.

    With the filing of the petition asking the entire Fifth Circuit to overrule the wayward 2016 precedent, the court's mandate was stayed. The next step, if the Court decides to consider taking up the matter, is for it to request a response from the defendant.

    CCL's Robert S. Peck wrote the petition and represents the plaintiffs, along with the Koonz McKinney law firm of Washington, DC.

     Representing the City of Miami Gardens, CCL filed briefs today in companion cases against Bank of America and JPMorgan Chase. The briefs replied to the banks in support of a motion that asked the Court to reconsider bifurcating discovery, a decision reached five years ago but never implemented because the cases were stayed while various related actions worked their ways through appeals.

     In both briefs, CCL justified reconsideration on the grounds that a recent Eleventh Circuit decision in another Miami Gardens case insisted that the City should have more vigorously sought more expansive discovery. Today's briefs explain that the motion for reconsideration was an attempt to do exactly what the appellate court instructed.

     The two cases were filed in 2014, but repeated appeals, including a couple of trips to the Supreme Court, slowed the case down.

     Granting CCL's motion for summary judgment, a federal district court declared the challenged portions of a one-year-old West Virginia advertising law unconstitutional as a violation of the First Amendment and ordered it permanently enjoined. 

      The statute, called the Prevention of Deceptive Lawsuit Advertising and Solicitations Practices Regarding the Use of Medications Act, was enacted last year supposedly to prevent consumers from hearing potential liability resulting from injuries related to drugs and medical devices. Attorneys advertising for clients in drug and medical device litigation, the legislation contended, could cause some consumers to stop taking prescription medication without consulting their doctors. To prevent that possible consequence, the legislation banned the use of the word "recall" to describe voluntary recalls of the products by manufacturers, the use of "consumer alert" in the lawyers' advertising, and the use of a government logo that might suggest affiliation with official agencies. In addition, it imposed a wide range of disclaimers that could take up to 23 seconds from a 30-second advertisement. One disclaimer required the lawyer to tell consumers that they should not stop taking medication without consulting a doctor.

     CCL, working with the Segal Law Firm, challenged the law and obtained a preliminary injunction last June, so the law never went into effect. The new order makes that injunction permanent and declares the law unconstitutional, finding that it, without justification, bars truthful, nonmisleading advertising, compels a lawyer to provide medical advice unrelated to the legal services being offered, and imposes burdensome disclaimers.

     CCL President Robert S. Peck was lead counsel in the case. There is no word yet on whether the State of West Virginia plans to appeal the ruling.

    CCL President Robert S. Peck told members of the Louisiana Senate Commerce and Consumer Protection Committee that S. 43, which would attempt to regulate attorney advertising was unconstitutional and should not be enacted.

     The legislation, nearly identical to a law enacted in West Virginia that Peck had successfully won an injunction against, was inconsistent with the First Amendment and unlikely to ever go into law. Moreover, Peck said, it does not accomplish what the sponsor had just testified it would. Before Peck spoke, bill sponsor Senator Barrow Peacock told committee members that the bill would prohibit advertisers from using the FDA or a Louisiana government logo and showed a video of an advertisement he said would be barred. The ad used the FDA logo to report what the FDA said about the drug.

     Peck said that the advertisement shown was completely legal, truthfully reporting about an FDA statement. The bill, however, only prohibited use of a logo if the use suggested that the lawyer was affiliated with the FDA, so it would have no application to the ad shown. In addition, he told the committee that the bill was nearly identical to one enacted in West Virginia over which he had brought a lawsuit that had been granted a preliminary injunction, indicating that he was likely to prevail in his constitutional challenge. He urged the committee no to pass a law that would never go into effect, just as the West Virginia law never did. Moreover, he warned that if someone like him brought a successful lawsuit challenging it, the State would end up paying the plaintiff's attorney fees.

    Peck also gave a detailed rendition of the bill's unconstitutional provisions. Nonetheless, by a 4-3 vote, the bill now moves to the Senate floor.