News

     The Supreme Court denied a petition for a writ of certiorari today on an issue of preemption, where CCL represented the plaintiffs in opposing review. 

     In Edward D. Jones & Co., L.P. v. Anderson, No. 21-552, the financial management firm sought Supreme Court review of a Ninth Circuit decision that the plaintiffs' claims were not preempted by the federal Securities Litigation Uniform Standards Act (SLUSA), which was enacted to cover lawsuits based on the purchase or sale of a covered security. The Ninth Circuit had held that, when Edward D. Jones switched the plaintiffs from commissioned-based fees on their investments to an annual management fee arrangement, the complaint about the higher fees was unrelated to purchases or sales. The plaintiffs were "buy and hold" investors, which means that after making their original purchases they largely rode the market, rather than engage in frequent trading. As a result, their accounts generated very few commissions. The annual management fee, on the other hand, taxed clients a percentage of their investment, guaranteeing income to the firm.

     Lawyers for Edward D. Jones argued that the federal appellate circuits had split on whether the litigated issue had to "coincide with" or be "material to" a purchase or sale and asked the Supreme Court to settle that issue through this case. CCL's brief in opposition to certiorari argued that the issue in the case was utterly unrelated to a purchase or sale and thus provided no occasion for the Supreme Court to take up the issue. In representing the plaintiffs, CCL joined Franklin D. Azar & Associates, who had won the case in the Ninth Circuit. 

  In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about the uncertainty counsel often faces about whether arguments will be in-person or remote during the COVID-19 pandemic. While preparation remains largely the same, the dynamics vary between the two, which he demonstrates through several anecdotes. The post is Arguing in the Age of COVID. 

     In an opening brief filed today, plaintiffs in a number of pending civil cases facing unreasonable delays asked the Washington Supreme Court to hold that they have standing to bring an action against the State over inadequate funding of the state courts. Their case about judicial funding was filed last year, but was dismissed by a trial court with an opinion or explanation. The plaintiffs, represented by Stritmatter Kessler Koehler Moore and CCL, sought direct review in the state supreme court.

     The brief notes that Washington's chief justices have long pleaded with the Legislature for more funding, noting that the state's trial courts ranked 50th out of 50 in per capita funding. The brief invoked the state constitutional guarantees of access to the courts "without unnecessary delay" and jury trials to argue that systemic issues prevent courts from hearing cases in a timely manner. They further argued that the system of separation of powers empowers the courts to assure adequate funding. 

      In Washington, half of judicial salaries at the trial level are paid by the state, while counties are responsible for the other half. By statute, the state legislature imposed half of all other costs on the counties as well. A popular referendum, however, required the state to pay all costs of additional judges added by the state. Nonetheless, the lawsuit argues that the provision of justice is ultimately a state responsibility and cannot be dependent on the ability of counties of uneven wealth to finance it. In this respect, the lawsuit is similar to school finance cases that have succeeded in Washington and other states. 

      A response brief, arguing in favor of affirming the dismissal, will be filed by the State February 25. 

     In a post on the Appellate Advocacy Blog, CCL President welcomed readers to 2022 with some predictions about high-profile cases likely to be resolved in 2022. The post is available here: Welcome to 2022.