News

    Facts can sometimes make or break as case, CCL President Robert S. Peck advises in a post on the Appellate Advocacy Blog. In A Focus on the Facts, Peck relates two experiences in cases where the facts drove the law and made all the difference.

     The Appellate Advocacy Blog is a part of the Law Professor Blogs Network. Peck is a contributing editor of the blog and posts biweekly.

     Working with the Susman Godfrey law firm, CCL today filed a brief in support of remand of the City of Sacramento's opioids lawsuit to state court. The case had been removed from state court to federal court by Walgreens and then consolidated into the massive federal Multi-District Litigation (MDL) case being heard in federal court in Ohio. There, it languished, along with its motion to remand.

      Under instructions from the Sixth Circuit, the federal court began the process of selecting small groups of cases for briefing on whether the case belonged in federal or state court. The defendants filed their brief last month, which argued that the case inevitably raises federal issues and belongs in federal court. Sacramento, for all the government entities in its group, argued that it only raised state causes of action and that no federal issues are implicated by its pleading. The decision on remand now goes to Judge Polster, who is presiding over the MDL.

     Acting as a Special State's Attorney for Cook County, CCL President Robert S. Peck argued that the Seventh Circuit should return the county's case against Bank of America to the district court, correcting a number of errors that resulted in dismissal of the action.

      Peck asserted that the dismissal of the county's experts as utilizing unproven methodologies failed to appreciate the validity of the analysis both experts had undertaken and their widespread use, instead of rendering an opinion on how believable the experts' conclusions were. For example, one expert used a government-approved methodology that even the bank's experts recognized. However, the district court focused erroneously on the expert's unique terminology rather than his valid form of analysis. 

      In response to questions from the judges on why the count failed the proximate cause test, Peck explained that proximate cause was not a one-size-fits-all test, but a statute-specific requirement that must reflect the values that Congress intended, as repeated decisions of the Supreme Court, including a case he argued there (Bank of America Corp. v. City of Miami) have held. He argued that the Ninth Circuit in a case brought by Oakland, misunderstood those holdings and suggested the the Seventh Circuit follow the Eleventh Circuit's persuasive analysis in the Miami case instead.

     The case, County of Cook v. Bank of America, seeks compensation and injunctive relief over the bank's discriminatory mortgage lending practices that resulted in loss of tax revenues and administrative costs to the county. The Court took the case under advisement.

     CCL argued that a Missouri trial court should not stay its proceedings growing out of a train derailment because Defendant BNSF seeks mandatory arbitration of the wrongful death and injury claims by passengers and their estates. Joining with Davis Bethune Jones of Kansas City, CCL President Robert S. Peck argued that BNSF has no valid arbitration clause because it relies on its status as a third-party beneficiary of Amtrak, which sold the tickets. Amtrak, however, is a government agency and, as such, is required to observe constitutional rights. A mandatory arbitration requirement would abrogate the injured parties rights to trial by jury and access to the courts, the brief argues. 

     In addition, the brief adds that some passengers obtained their tickets through means other than the Amtrak website, such as over the phone, at ticket windows, and travel agencies, where they received no notice of any arbitration requirement, invalidating the imposition of arbitration under traditional contract principles. Finally, the brief argues that the Amtrak arbitration agreement makes a purchaser an agent for all who might later make a claim based on their purchase of a ticket, a form of agency that also violates contract principles and, in the cases of wrongful death, improperly treats all claims as derivative in violation of Missouri law.

      The parties' different positions on the issues of the validity of the arbitration provision will be the subject of a hearing on November 3.

    In a new blog post, CCL President Robert S. Peck both critiques the Supreme Court's new approach to historical practice as the basis for constitutional analysis, showing the illogical uses that lower courts have now adopted.

     In its end of term decision in N.Y. State Rifle and Pistol Association v. Bruen, the Supreme Court struck down a 1915 NY gun regulation law as inconsistent with historic traditions. Although the Supreme Court recognized that regulations could be imposed for "sensitive areas," some lower courts have now struck down other regulations because historic traditions were not evident that would allow restrictions based on being under 21, past criminal activity, or even at summer camps, which did not exist at the time the Second Amendment was ratified.

     The blog post advises appellate advocates about framing arguments in this new world of constitutional analysis. The post can be found at New World.

     CCL joined its co-counsel, Shapiro Blasi Wasserman Hermann, in filing a preliminary injunction motion, seeking to prevent implementation of new property insurance policies in Florida that add mandatory arbitration to the policies and abrogate a homeowner's right to attorney fees when the insurer wrongly denies a claim.

     The case names Florida Insurance Commissioner David Altmaier, who approved the policy, along with American Integrity Insurance, which requested the approval, as defendants. Plaintiffs Restoration Association of Florida and Air Quality Assessors argue that the commissioner lacked authority to approve the policies, violating separation of powers, and that the new provisions violate the Florida Constitution's access to courts, due process, and equal protection guarantees. 

     A hearing on the motion is scheduled November 15.

     Speaking on the opening panel for the 16th Annual Judicial Symposium on Civil Justice Issues, CCL President Robert S. Peck highlighted upcoming U.S. Supreme Court cases and other issues coming down the road that will likely affect how judges look at key issues. More than 100 judges from around the country attended the event held at George Mason University's Antonin Scalia Law School.

     The opening panel, moderated by Justice William Mims of the Virginia Supreme Court, also featured Geoffrey Wyatt, a partner at the Skadden Arps law firm. Video of the panel, as well as the other panels, is available at 16th Annual Judicial Conference on Civil Justice Issues.

     CCL President Robert S. Peck served expert rebuttal reports on opposing counsel in the Florida Attorney General's office as part of a challenge in federal court to restrictions the state legislature enacted on marketing efforts by roofing contractors. The State, however, filed no rebuttal to the Plaintiffs' expert reports. 

     The case involves a state statute that prohibits roofing contractors from advertising in a manner that encourages or induces a homeowner to make an insurance claim for property damage, along with other restrictions on paid referrals or offering a "thing of value" as an incentive to hire the contractor. Plaintiffs Restoration Association of Florida, a trade association of contractors who repair and remediate homes after damages, such as due to a hurricane, and Apex Roofing, the largest roofing contractor in the Southeast United States, challenged the law. Their supporting experts have explained that the restrictions on the Plaintiffs' marketing efforts target commonplace advertising and marketing strategies across industries while yielding nothing to advance the State's alleged anti-fraud efforts.

      The State produced expert reports by a fraud investigator for the state-operated insurance company and the Office of Insurance Regulation's consumer advocate. Both testified that in their opinions, fraud exists, and the statute's restrictions would prevent fraud. As the Plaintiffs' experts stated in rebuttal, neither State expert provided any data or facts that would support their opinions, that the sources that could be identified for the facts asserted did not support the anti-fraud claims of the State's experts, and that empirical studies also undermine the conclusory assertions of the State's experts.

      The case continues in the discovery period.

     In a brief filed opposing the Defendants' motion to continue the upcoming trial date in In re Behr Thermal Products, CCL told the trial judge that it should not credit the Defendants' eleventh-hour claim that they are baffled about what common issues would be tried to the jury and which withheld for individual trials before different juries.

     CCL explained that the Defendants had litigated those issues repeatedly in the federal district court and in the Sixth Circuit. CCL reemphasized its oral argument earlier in the week, demonstrating that no Seventh Amendment issues remain and that the trial date set long ago should not pose sudden issues about preparing in time that the Defendants now raise. 

     CCL was brought into the case by Plaintiffs' counsel for the Seventh Amendment issue. CCL President Robert S. Peck wrote the brief filed today and made the earlier oral argument.

     CCL President Robert Peck told the Wall Street Journal that more precedents were endangered and a bold Supreme Court seemed prepared to tackle a wide range of social and cultural issues, in the newspaper's preview of the new  term.

      The article can be found at Supreme Court Term Preview.