Fourth Circuit Denies Rehearing En Banc and Motion to Stay Mandate

May 31st, 2022

     The Fourth Circuit denied serial applications from CCL to first rehear the case en banc and then to stay its mandate pending a petition for certiorari in the U.S. Supreme Court in the law firm's challenge to a West Virginia restrictive advertising statute that the district court held violated the First Amendment.

      In its rehearing petition and its stay motion, CCL argued that Supreme Court precedent does not permit a state to prohibit certain words, truthfully used, from only some speakers and also prohibits the state from requiring advertising include such substantial disclaimers that it blots out the speaker's message. The underlying statute bans the word "recall" from attorney drug and medical device case advertising, even though the word is accurately used when a manufacturer recalls a product for violating federal law. When a recall is issued, both the Food & Drug Administration and the manufacturer put out press releases and website information that the drug or medical device was recalled. Only lawyers advertising for clients injured by those devices cannot tell consumers that the product was recalled. Under Supreme Court precedent, that type of prohibition constitutes a form of content discrimination that is rarely justified. Even so, the Fourth Circuit permitted the statute to stand because it was concerned that "medically unsophisticated" persons would misinterpret the words and stop taking medication on the basis of the advertising, but, apparently, not on the basis of the FDA and manufacturers' use of the term.

     In addition, the Fourth Circuit failed to address CCL's argument that 30 seconds of disclaimers, which would take up the entirety of a television or radio advertisement was unduly burdensome in violation of other Supreme Court precedent. 

      A petition for certiorari in the case is due in late August.

CCL Joins Challenge to New Florida Property Insurance Statute

May 27th, 2022

     Just days after being signed into law, CCL has filed a new challenge to a special session statute designed to cut the costs for property insurers that deny legitimate homeowners' claims, arguing that it violates the Florida Constitution.

     Governor Ron DeSantis called the legislature into special session to enact the law as part of an effort that claims that property insurance carriers face a financial crisis. The solution the Legislature chose within an omnibus bill was to prevent contractors who receive assignments of benefits from receiving attorney fees when they have to go to court to force the insurer to honor the homeowner's policy. Homeowners, however, may still receive attorney fees for a successful suit under the same circumstances when they do not sign an assignment of benefits. 

     The lawsuit, filed with Boca Raton's Shapiro Blasi law firm, argues that the statute creates a perverse incentive for insurer's to deny claims, knowing that the vast majority of claims for a few thousand dollars will not be economically viable without the award of attorney fees. Plaintiffs claim that the statute violates the state constitution's single-subject rule, access to the courts, due process, and equal protection.

CCL Calls Court's Attention to New Decision Supporting Clients

May 23rd, 2022

     In a notice of recent decision, CCL alerted the court hearing its challenge to the Texas medical-malpractice damage cap to a recent decision of the Fifth Circuit that supported CCL's arguments on the Seventh Amendment's right to trial by jury.

     In Winnett v. Frank, the federal district court in Austin, Texas heard oral argument on the constitutional issues and standing in February that asserted the Seventh Amendment satisfies the criteria that applies Bill of Rights provisions to the States and that it prevents other branches of government from substituting their determinations for the jury's assessment of damages as a set of facts constitutionally committed to that body. 

     In a new decision, the U.S. Court of Appeals for the Fifth Circuit, the appellate court that oversees the district court in which Winnett is pending, invalidated certain administrative proceedings held by the Securities and Exchange Commission as constitutionally unsound. While the primary ground was based on separation of powers, the court also found the substitution of administrative procedures to violate the right to a jury trial. The historic analysis that supported the decision tracked CCL's arguments about the scope of the jury-trial right.

     A decision on the issues briefed is pending in Winnett.

Study Co-Authored by CCL President Peck Featured in Newsweek Opinion

May 18th, 2022

     A new Newsweek opinion piece on the decline of the civil jury centers on a study of the jury and recommendations for its revival co-authored by CCL President Peck and law professors Richard Jolly (Southwestern Law) and Valerie Hans (Cornell Law). The article by John Quinn, managing partner and founder of the Quinn Emanuel law firm, summarizes the study published last fall by the Civil Justice Research Institute at Berkeley Law School. A longer, more detailed version of the study will be published later this year in the Georgia Law Review.

Peck Participates in ALI Annual Meeting

May 18th, 2022

     CCL President Robert S. Peck supported amendments and participated in the debate at the American Law Institute's Annual Meeting in Washington, DC. The ALI, which celebrates its 100th anniversary next year, is best known for publishing Restatements of the Law, which are often used to guide courts about the consensus in the law.

      Among the issues the ALI considered was a new Restatement on the Law of Consumer Contracts, an emerging area of law in which precedents are still developing and general contract principles provide unsatisfying guidance. At the meeting on May 17, the draft Restatement was amended to provide a new definition of "reasonableness" that considers the consumer's perspective and the totality of the circumstances. A second amendment provided guidance in interpreting the Restatment, emphasizing the importance of consumer expectations. CCL's Peck supported both changes.

      The ALI also considered sections of the Restatement:Torts, Concluding Provisions, and Restatement: Torts, Remedies. Neither of those projects, part of an overhaul of tort law begun 30 years ago, were completed, although various sections were approved.

Peck Rebuts Criticism of Unenumerated Constitutional Rights

May 15th, 2022

     Responding to critiques about unenumerated constitutional rights, CCL President Robert S. Peck devoted his post to the Appellate Advocacy Blog to the subject, explaining both textual and originalist justifications and for proper application of common-law interpretative methodologies. 

     In Denying Unenumerated Rights, Peck explains that all sections of the political spectrum have their favorite implied rights that they insist is embodied in the Constitution. The disagreement, then, is not about the existence of such rights, but how they are read into the Constitution.

CCL Seeks Rehearing En Banc in First Amendment Case

May 10th, 2022

     Arguing that a Fourth Circuit panel ruled inconsistently with both Supreme Court and its own precedents, CCL President Robert S. Peck filed a petition asking that the case be reheard en banc. The panel's decision two weeks earlier overturned a district court ruling that a West Virginia statute restricting attorney advertising violated the First Amendment.

      In upholding the statute, the Fourth Circuit decision found not constitutional issue with a law that prohibited attorney's from truthfully stating that a drug or medical device had been recalled. To the panel, the word "recall" was inherently misleading and could cause "medically unsophisticated" consumers to think that it was recalled by the government, even though recalls are voluntary actions of a manufacturer under federal law. As the petition pointed out, only attorneys advertising about drug and medical device cases are prohibited from using the word "recall." The FDA and manufacturers are still permitted in the challenged statute to use them in press releases and on web sites to tell the public a product has been recalled. Precedent forbids government from reserving the truthful use of a word to only certain speakers.

      An additional flaw the brief pointed out to the Fourth Circuit is that the panel utterly ignored the unrebutted evidence that West Virginia required attorneys to add a long list of disclaimers to the advertisement, so long that it took up 30 seconds of a 30-second television advertisement. That type of burden violates the First Amendment under Supreme Court precedent.

      A petition for rehearing en banc is discretionary with the court. No response is required from the State of West Virginia until requested by the court.

DC CBS Station Interviews CCL's Peck about Leaked SCOTUS Abortion Decision

May 4th, 2022

      CCL President Robert S. Peck explained the process the justices follow in drafting opinions to explain why the draft decision in the Mississippi abortion case can be authentic but not final for WUSA-9, the CBS affiliate in Washington, DC.

      As Peck explained, the chief justice or the most senior justice in the majority assigns the opinion, which, once a draft is completed, is circulated to the other justices. Some justices will join immediately; others will agree with its thrust by ask for changes. Still, others who are planning to dissent will incorporate responses to some of the arguments in the draft opinion. This process of back and forth continues until final opinions, majority, concurring, and dissenting, are complete.

Peck Discusses "Art of Rebuttal"

May 1st, 2022

      CCL President Robert S. Peck discussed four key ingredients to "The Art of Rebuttal" in a post to the Appellate Advocacy Blog, sponsored by the Law Professor Blog Network, to which he contributes every two weeks. 

      Peck's essential advice was to answer your opponent's best argument, answer questions posed by the judges to your opponent, don't waste time reiterating a point the judge has already made for you, and don't feel the need to use all of your time.