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     Arguing that the case provides an excellent vehicle for the Supreme Court to determine whether States may redefine a word, already defined by federal law, and then ban its use altogether, CCL filed a reply brief in support of its petition for a writ of certiorari.

     In Recht v. Morrisey, CCL is challenging a West Virginia statute that, among other things, bans the word "recall" in certain attorney advertising when used accurately to refer a drug or medical device recalled by the manufacturer. Federal law defines a recall as a voluntary action by a manufacturer when it determines that the product is not sufficiently safe to continue to be sold. However, the West Virginia law only permits the truthful use of the word when the government orders a recall, which it does not do in the case of drugs and medical devices.

     A federal district court in West Virginia struck the law as unconstitutional, but the decision was overturned by the U.S. Court of Appeals for the Fourth Circuit, which held that the word was inherently misleading. The CCL petition seeks review of that decision in the U.S. Supreme Court. The reply filed today explains why West Virginia's opposition to further review lacks merit.

     In Holsapple v. BNSF, CCL filed a supplemental brief asserting that BNSF Railway waived any right it had to mandatory arbitration of cases brought as a result of a train derailment near Mendon, Missouri.

     In a post on the CCL blog on November 3, CCL provided background on the case and the court's request for supplemental briefing on whether arbitration was waived. In the brief filed today, CCL argued that a party seeking arbitration must tell the court at the earliest feasible moment, under relevant precedent, and cannot otherwise participate in the case without waiving arbitration. In this case, BNSF opposed adding Amtrak as a third-party defendant, supported a stay pending an investigation by the National Transportation Safety Board, and filed for a change of venue to another court. Those actions forfeited any arbitration rights BNSF might have had because it expended time and resources in the trial court without alerting the court to the arbitration issue. It is therefore inconsistent with any claimed right to arbitration.

      The court is expected to rule on BNSF's motion to stay proceedings pending arbitration shortly.

     The Conference of Chief Justices met in Washington, as part of activities sponsored by the National Center for State Courts (NCSC). One highlight of the meeting is the "Conversation with the Chief Justices" of the states' highest courts. As he has for more than a decade, CCL President Robert S. Peck moderated the conversation, in which more than 20 chief justices participated. Invitees to the conversation include members of the NCSC lawyers and corporate counsel committees. The event is capped the same evening by a dinner at the U.S. Supreme Court, where a state judge doing innovative work is honored with the Rehnquist Award.

     CCL President Robert S. Peck explains why facts matter in his latest posting on the Appellate Advocacy Blog, a part of the Law Professor Blogs Network. In A Focus on the Facts, Peck uses the very different factual contexts utilized by the parties in Sackett v. EPA, No. 21-454, pending in the U.S. Supreme Court to explain why law goes hand in hand with potentially sympathetic facts. 

     In Sackett, the Court will determine the meaning of "wetland," for purposes of the EPA's regulatory authority. Although this might seem like a straightforward question that should not be influenced by factual disputes, both parties have sought to portray the other's position as insensible based on the facts. The Sacketts tell a tale of a homeowner seeking to build a modest home on their property, which is zoned as residential, and for which they face "crushing fines" for interfering with navigable waters, even though there are no streams, rivers, lakes, or other body of water on their property. The EPA, on the other hand, says that the Sacketts have a commercial construction and excavation business and are well aware that their property is part of a fen that drains under the surface into wetlands and a lake. 

      The Supreme Court, likely to be split on the issue, will issue an opinion before the end of June. However, it seems almost certain that the majority and the dissenters are likely to adopt the facts that suit their position, giving readers the same, very different rendition of what is at stake.

     CCL's Peck discussed the standards employed by courts in determining punitive damages and when the jury's determination is deemed "grossly excessive" at a meeting in Philadelphia of the American Law Institute. The meeting was part of a decades-long process of developing a new Restatement on Torts to reflect developments in the law since the last project of this kind. Restatements are considered authoritative explanations of the law and developments.

     In the meeting of members who are part of the consultative group for development of this restatement, punitive damages became a central issue. Much of the discussion revolved around what the U.S. Supreme Court said in its 2007 decision in Philip Morris v. Williams, which established, for the first time, that a defendant had a right to a jury instruction, when properly requested, that limited some considerations in assessing punitive damages to the harm visited upon the plaintiff, even if the primary determinant, reprehensibility, could consider harm or potential harm to others. When the 5-4 decision was handed down, the dissenters, who included an unusual combination of Justices Ginsburg, Stevens, Scalia, and Thomas, found the type of instruction authorized to make little sense.

     Peck was able to speak especially knowledgeably about the case because he argued in the Supreme Court both for the 2007 decision and a subsequent return hearing that resulted in the Court allowing a 97:1 ratio to stand in 2009 after the Oregon Supreme Court held that Philip Morris had not properly requested the jury instruction.

     Revisions to the draft discussed at the Philadelphia meeting will occur.

     Arguing that BNSF Railway had no right to stay court proceedings in favor of its federal motion to compel arbitration for deaths and injuries arising from a train derailment, CCL President Robert S. Peck urged the trial court in Chariton County, Missouri that BNSF's claim that the plaintiffs had agreed to arbitration was factually incorrect, that the arbitration agreement was unconstitutional because of its source, that the agreement, if valid, could not apply to the wrongful death claimants, and that BNSF had waived any right to arbitration through its participation in proceedings in the court.

      The dispute arises out of a June 27, 2022 derailment that occurred when Amtrak Train 4, known as the Southwest Chief, traveling from Los Angeles to Chicago, struck a dump truck near Mendon, Missouri. BNSF operated the train for Amtrak and claimed the benefit of an Amtrak pop up that occurs when purchasing tickets online that requires a potential passenger to agree to mandatory arbitration for any disputes resulting from the ticket purchase or travel.

      After injured passengers and survivors of the passengers killed filed their state court lawsuits, BNSF waited three months, participating in the state court case, before seeking a stay of proceedings and filing an action to compel arbitration in federal court against the plaintiffs. In court, Peck explained that because Amtrak is a government agency and not a private party, it is obligated to comply with the Constitution, where plaintiffs have a right of access to the courts and a right to trial by jury. The government cannot require a person to waive those rights in order to participate in government services, which the mandatory arbitration provision seeks to do. It is therefore null and void and cannot be claimed by BNSF.

      In addition, if there were a valid arbitration agreement, participating in court proceedings, deciding that it did not like the direction the case was going, and then invoking arbitration constitutes a waiver of any arbitration rights, because a party cannot game the system to find a more favorable venue for its case.

      Furthermore, Peck explained that tickets on the train were purchased in a variety of ways. Some may have used Amtrak's website with the arbitration pop-up, but other tickets were purchased at a ticket window where no arbitration agreement is revealed or agreed to, at travel agencies that do not convey the arbitration agreement such as AAA, and on behalf of others where the purchaser was not authorized to agree to arbitration as the traveler's agent in order to purchase the ticket. 

    Finally, Peck argued that, under Missouri law, a wrongful death case is not a derivative action, so that even if the decedent had agreed to arbitration, she could not bind those with survival claims, which is a wholly different cause of action than a personal injury claim. 

    The court took the matter under advisement, but asked the parties for supplemental briefs on the waiver issue.

     On the same day, making similar arguments, a brief authored by CCL was filed by co-counsel Davis Bethune & Jones LLC in the federal court in St. Louis, opposing BNSF's preliminary injunction motion.

    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.