News

     CCL President Robert S. Peck told a federal appeals court yesterday that personal jurisdiction over a Japanese defendant for a collision between its container ship and a U.S. Navy destroyer comported with due process and the circuit's precedents, requiring that the district court's contrary decision be reversed.

     The lawsuit grows out of a 2017 collision in which the U.S.S. Fitzgerald suffered a significant gash that flooded compartments where the killed and injured sailors were. Personal jurisdiction was premised on a federal rule of civil procedure, Rule 4(k)(2), which applies to lawsuits based on federal law where no state court would have jurisdiction. The district court, sitting in the Eastern District of Louisiana, superimposed a requirement that the foreign defendant also be "at home" in the U.S. Peck asserted that that was error before a panel of the U.S. Court of Appeals for the Fifth Circuit.

      Instead, Peck argued that existing precedent was unimpaired and that it merely required sufficient national contacts. Opposing counsel conceded that, if a national contacts rule applied, his client, NYK Line, did have sufficient national contacts. 

      Peck added that an "at home" overlay would render Rule 4(k)(2) a nullity, for it would apply to no instances at all. If a defendant was "at home" in the United States, then it would necessarily be subject to jurisdiction in some state's court. As a result, the rule would never apply to any instance and would be considered unconstitutional if the "at home" requirement were considered a function of due process.

      The case is now under advisement.

     With an impeachment trial in the Senate looming, news organizations asked CCL President Robert S. Peck about several questions about what the Constitution and courts have said.

       In an interview that followed the delivery of the article of impeachment to the Senate by the House managers, Newsy, a Scripps-Howard network, asked about the legality of trying a president on an impeachment charge after leaving office. Peck explained that the situation is largely unaddressed by the Constitution, but that historical precedent existed for trying a public official after leaving office, that 150 constitutional law professors, spanning the ideological spectrum, had signed a letter stating that there is no problem in such a trial, and that doing so makes it easier to justify a prohibition on seeking public office again. 

      Peck also told the network that the Supreme Court in a 1993 decision involving impeachment of a judge, had held that the trial was a "political question" that was not susceptible to judicial review. 

      In another interview, this time with WUSA-9, the Washington, DC CBS affiliate, Peck explained that the costs of legal representation in defending the impeachment charge falls to former President Trump. In the impeachment trial of a year ago, the Republican National Committee raised the money to pay for the defense. He noted that the House had hired two lawyers from the outside to assist with the prosecution, but that this did not involve extra expenditures but an allocation from within the House Judiciary Committee's existing budget.

      CCL President Robert S. Peck argued a Magnuson-Moss warranty case in the Seventh Circuit, contributed to a petition for certiorari in the Colorado Supreme Court filed today, had an amicus brief he wrote mentioned twice during oral argument in the U.S. Supreme Court, and wrote a brief in opposition to a motion to dismiss filed in Illinois circuit court today.

      In Ware v. Best Buy Stores, the Seventh Circuit will decide whether a Geek Squad Protection Plan (GSPP) is a warranty or a service contract. The Wares were looking to purchase a $3,000 state-of-the-art television set in 2013. When the salesperson and store manager warned them that it would likely only last a couple years and suggested they extend the manufacturer's warranty with a five-year GSPP, which would give them $300 off the TV and free delivery, it was enough to seal the deal. When the set went bad in 2017 after years of problems and became unfixable, Best Buy offered them a discounted voucher for a new TV, saying that what the Wares bought was a service plan, not a warranty, despite language in the document that made it a warranty. The district court dismissed the putative class action, finding that an FTC regulation that said the payment of additional consideration made the GSPP a service contract. In today's appeal in the U.S. Court of Appeals for the Seventh Circuit, Peck argued that Magnuson-Moss was designed to prevent consumer deception and that Best Buy had violated its provisions by multiple indicia that the bundled TV and plan was a single item that included a warranty. The court took the case under advisement.

      The Colorado Supreme Court filing came in a catastrophic medical-malpractice case, Smith v. Surgery Center, where the Court of Appeals took away a significant jury verdict because it said the ambulatory surgery center defendant could not have committed negligence because it was barred from practicing medicine by the corporate practice of medicine doctrine. The reply brief filed today argued that the jury held the center liable for its own negligence and that allowing the published opinion to stand without review would massively expand the doctrine to provide plenary immunity to the center regardless of what it did or what duties it assumed.

      The Supreme Court heard oral argument today in BP v. Mayor and City Council of Baltimore, concerning federal officer removal. Peck wrote an amicus brief on behalf of state and local government groups that, among other things, emphasized that BP's position would allow lawyers to manipulate the system to file interlocutory appeals that Congress had denied authority for. In response to a question from Justice Kagan, Victor Sher, representing Baltimore, invoked the CCL amicus brief. Later, the same amicus brief provided another answer.

     Finally, Peck wrote and filed an opposition to a motion to dismiss in a COVID-19 related nursing home case, Leja v. Bridgeview, in an Illinois state circuit court.

     In briefs filed today, CCL joined the Chicago law firm, Levin & Perconti, in opposing motions to dismiss and motions to strike complaints filed in the U.S. District Court for the Northern District of Illinois over COVID-19 deaths and injuries in a single nursing home.

     The cases involved three different residents, two of whom died, because the nursing home failed to take necessary precautions to avoid infecting residents with the coronavirus. Last year, as the pandemic was surging, Illinois Governor J.B. Pritzker issued two executive orders changing the civil liability standard for certain health care providers rendering assistance to the State in fighting COVID-19. If valid and applicable, the executive orders replaced existing negligence standards with "gross negligence and wanton misconduct" for liability to attach. In the three cases, the plaintiffs pleaded both the negligence and a willful and wanton standard in separate counts. The defendant nursing home sought to dismiss both counts, arguing that the executive order wiped out the negligence claim, while the willful and wanton claim was not authorized by the Illinois Nursing Home Care Act. As the CCL brief, written by Robert S. Peck, pointed out, the nursing home's argument is that each basis for liability cancelled the other. Nonetheless, the brief argued that the motion to dismiss should be denied because the argument does not provide grounds for dismissal, but a basis for an affirmative defense that must be alleged in an answer to the filed complaints.

    The nursing home, alternatively, sought to strike a large number of the complaints' allegations, as immaterial, duplicative, or otherwise improper. The brief argues that none of the grounds asserted provides a legitimate basis for striking any paragraphs from the complaint.

    The nursing home will now have an opportunity to file a reply brief. As the case moves forward, the applicability and the constitutional validity of the executive orders will be at issue.

     CCL President Robert S. Peck told WUSA-9, the CBS affiliate in Washington, DC that presidential impeachment trials differ from criminal trials because it is part of a constitutional process, informed by politics, that goes to the removal and possible disqualification of a president from future federal office, rather than potential fines and jail. Although the Constitution uses the terms "high crimes and misdemeanors," impeachment does not require a criminal offense and can be premised on a violation of the oath of office.

     Peck also pointed out that the Constitution specifies that criminal charges can still be brought against a person convicted after impeachment.

     CCL President Robert S. Peck told Court TV today that an upcoming Supreme Court case is about the right to appeal a decision sending a case back from federal to state court. In BP v. Mayor and City Council of Baltimore, the city sued oil and gas companies over their longstanding denial of the connection between fossil fuels and climate change, raising only state law issues and bringing the case in the Maryland courts. BP and its co-defendants removed the case to federal court, where they believed their federal defenses would receive a friendlier hearing. Among the rationales for removal were that they were operating at the direction of a federal officer. Of all the justifications, only federal-officer removal permits a right of appeal.

     The federal court, however, granted a motion to remand, finding no basis for federal jurisdiction. BP appealed to the Fourth Circuit, asserting that all eight grounds for federal removal were subject to appeal, not just the federal-officer issue. The Fourth Circuit rejected that argument. Next week, the Supreme Court hears the case to determine whether the statute that permits appeal of the federal-officer grounds also permits appeal of the other grounds as well.

    Peck filed an amicus brief on behalf of state and local government groups, arguing that the Fourth Circuit was correct and that the case should be returned to state court. In the Court TV interview, Peck explained the background of the law at issue and the arguments that each side would be making.

     CCL President Robert S. Peck explained the scope of the pardon power and the meaning of the Fourteenth Amendment's Expulsion Clause in separate media interviews today. 

     To WUSA-9, the Washington, D.C. CBS affiliate, Peck explained that presidential pardon authority is very broad, but was not limitless. He said that the pardon authority can only reach federal crimes, not state criminal violations, could not deter impeachment and conviction, and could not absolve someone of a crime before it occurred. He noted the absence of precedent for a presidential self-pardon and disagreement among scholars, but sided with those who believe a self-pardon is antithetical to both text and practice. 

      Peck also told Politifact that the Fourteenth Amendment's Expulsion Clause provides a basis for excluding those from federal office who violated their oath to defend and protect the Constitution by encouraging, aiding, or even applauding those who mounted an insurrection in an attempt to prevent Congress from totalling the certified electoral votes. Moreover, he suggested that those who continued to perpetrate the false narrative of a stolen election after the assualt on the Capitol provided the type of "aid and comfort" and encouragement of further acts of violence and intimidation that undermine the theory of our democracy and also qualify under Section 3's terms for expulsion.

     As the country reels from the assault on the Capitol as Members of Congress were engaged in totalling the Electoral College votes received from the States in the presidential election, concerns continue to grow about further incidents domestic terrorism. WUSA-9, the Washington, DC CBS affiliate, had received questions from viewers about claims being made by conspiracy theorists that President Trump had invoked the Insurrection Act to seize military control of the country and even hold public tribunals to try those who would not reconsider the election results as criminals.

     The station turned to CCL's Robert S. Peck for an explanation of the Insurrection Act, which has existed in one form or another since 1807. As Peck told the station, the Insurrection Act can only be invoked unilaterally by a president, either when a state's legislature and governor were no longer functioning due to an insurrection or domestic unrest so that federal legal rights were being trampled, or when insurrection or domestic unrest prevented law enforcement or the normal processes from proceeding. To invoke the Act, a public proclamation is necessary so that the insurgents have an opportunity to disperse and return peaceably to their homes and so that other government actors might get involved. Not only is there a safeguard role for Congress and the courts during this cooling-off period, Peck said, but also an opportunity for the vice president to make use of the 25th Amendment, if the invocation of the Act is unjustified.

     After Members of Congress and newspaper editorials across the country advocated that President Donald Trump needed to be removed from office immediately, CCL President Robert S. Peck did a number of television interviews about the meaning of impeachment with only 13 days left in the Administration, the process of the 25th Amendment, and the consequences of removal by that amendment.

     Peck explained that an impeachment process can be done quickly, if Congress had the will to do so. He also explained that ineligibility for future office does not automatically follow a conviction following impeachment. Instead, Congress has to explicitly include those terms in the impeachment and conviction.

     Peck also explained the process anticipated by the 25th Amendment, its origins, use, and how it does not have the effect of rendering the removed president permanently disabled from seeking the presidency again.

     Peck's interviews appeared on Washington, DC CBS affiliate WUSA-9 and Toronto's CTV news channel.

     CCL President Robert S. Peck told the Washington, DC CBS affiliate, WUSA-9, that the vice president had no authority to refuse to recognize the certified results of the Electoral College in an interview just before Congress took up that process.

     Peck told WUSA-9 that the vice president's role is ceremonial and that there were no further legal or constitutional options to overturn the result. Shortly after the interview, Vice President Mike Pence issued a statement recognizing that the truth of what Peck said. Peck added that the next date to watch was January 20 to see if there is any resistance on the part of the president to leave office. Still, he said, the Trump presidency ends on that date as a constitutional matter.

     In a second and separate interview with the station, Peck was asked about the Expulsion Clause, which was used during the Civil War to expel some members of Congress loyal to the Confederacy. He said he thought today's senators objecting to the Electoral College certification were phrasing their objections carefully to avoid providing a smoking gun of their disloyalty, even though they are likely to be accused of that.

     The assault on the Capitol building by Trump supporters occurred shortly after both interviews.