News

Peck Presents on Civil Justice Issues in Upcoming Supreme Court Term

September 16th, 2022

      CCL President Robert S. Peck reviewed upcoming U.S. Supreme Court cases that involve civil justice issues at the annual preview hosted by the Law and Economics Center at George Mason University Antonin Scalia School of Law, along with John Beisner of the Skadden Arps law firm.

      The conversation started with Mallory v. Norfolk Southern Railway, a case involving personal jurisdiction under Pennsylvania's corporate registration statute, which has treated registration as consent to general jurisdiction for more than a century and was upheld by the Supreme Court in 1917. Modern caselaw and the Court's new heavy emphasis on originalism, the interpretative theory that treats the objective of those who framed and ratified the Constitution as determinative of its meaning, brings new questions into play on the state statute's validity. 

      Peck explained that, with Justice Gorsuch's recent concurrence suggesting a new look at fundamental concepts of personal jurisdiction, the case could provide a launching point for a new jurisprudence. He distinguished what was at issue in the Pennsylvania case, where the injury took place out of state, with a Georgia case also on the Supreme Court's docket, where there were more substantial connections to the state that justified the assertion of personal jurisdiction, indicating the Court could provide guidance.

      Other cases discussed included National Pork Production Council v. Ross (Dormant Commerce Clause), Axon Enterprise, Inc. v. FTC (whether a corporation under investigation by an independent federal agency could bypass the Administrative Procedures Act and challenge the agency's constitutionality in federal district court), and Health and Hospital Corporation v. Televsky (private right of action under statutes passed pursuant to the Spending Clause).

      Peck also highlighted two petitions from CCL's docket: Recht v. Morrisey (commercial speech) and Douglass v. NYK Line (personal jurisdiction).

CCL President Attends American Law Institute Meeting

September 15th, 2022

     CCL President Robert S. Peck attended and contributed to discussions of the American Law Institute's Concluding Provisions draft in Philadelphia as part of its decades-long effort to update its Restatement of Torts.

      During the meeting, discussants probed and suggested changes to sections on medical malpractice, vicarious liability, spoliation, and miscellaneous issues in tort law. The small-group effort will result in further revisions that will be the subject of future discussions.

CCL Files Amended Complaint Challenging Florida Law Regulating Marketing by Roofing Contractors

September 2nd, 2022

     CCL filed a Fourth Amended Complaint challenging a 2021 Florida law that restricted advertising and marketing by roofing contractors in order to discourage property insurance claims by homeowners. Among other things, the law prohibits advertisers from directly or indirectly encouraging or inducing an insurance claim. To avoid the prohibition under an amendment enacted in special session in 2022, the roofing contractor must add lengthy disclaimers that warn homeowners against filing fraudulent claims. According to the State, a small minority of claims, on the order of ten percent, are fraudulent, though, to date, the State has not explained how it arrived at that figure.

     The case is pending in the U.S. District Court for the Northern District of Florida. The plaintiffs are a large roofing contractor and a trade association whose members include roofing contractors. The defendants are the state officials who run the agencies charged with regulating and licensing contractors.

CCL Drafts Response Brief in Illinois Appellate Court Nursing Home Litigation

September 1st, 2022

     The Illinois Appellate Court will consider whether a gubernatorial executive order provides blanket immunity to a nursing home sued over five COVID-related deaths in late April-early May 2020. In an executive order issued at the beginning of April and reissued in May of that year, Illinois Governor J.B. Pritzker extended the State's own immunity from suit to health-care providers who rendered assistance to the State in its battle against the coronavirus.

       In the five wrongful-death cases filed during that period, the trial court denied the nursing home's motion to dismiss based on the executive order. However, it did not rule on the dispute between the parties on whether the nursing home actually rendered any assistance. As the brief for the plaintiffs filed today argued, discovery established that the nursing home did nothing that it did not normally do in response to COVID, other than to re-use procedural masks made for one-time use by staff who dealt with residents with COVID symptoms, but not with those who died and sued in these cases. As a result, the brief argued that the nursing home did not render assistance to the State that qualified for immunity, particularly since its meager effort was unrelated to its treatment of the decedents. Moreover, the brief argued any other reading of the executive order would render it unconstitutional as exceeding the Governor's authority.

      In addition, the brief urged the court to dismiss the appeal as improvidently granted because this type of interim appeal is not available where a factual dispute continues to exist but is instead reserved for pure legal questions likely to resolve the litigation. 

      The nursing home will now have an opportunity to file a reply brief in response.