Peck Speaks about Supreme Court Term at Appellate Judges' Summit

November 12th, 2021

     CCL's Robert S. Peck told judges and appellate lawyers meeting in Austin, Texas that the current Supreme Court term will expose even more fissures between the justices on issues that have implications for the nation's political climate than last term when Justice Amy Coney Barrett joined the Court.

      In a morning session of the 2021 Appellate Judges Educational Institute, Peck joined Washington, DC lawyer Kannon Shamugam and Texas lawyer Jaime Santos in previewing, and, in some cases reviewing, October Term 2021. The discussion included cases on abortion, guns, religion, and civil rights. The four-day summit is one of the premier appellate education events each year and is sponsored by the National Judicial College.

CCL Contributes to Reply Brief in VW Emissions Appeal

November 11th, 2021

     In a reply brief filed in the Ninth Circuit, CCL joined co-counsel in arguing that the district court misunderstood federal and state law in eliminating one cause of action, limiting evidence, and reducing punitive damages in bellwether cases that opted out of the global settlement of the Volkswagen emissions scandal.

     For a nine-year period of time, Volkswagen employed a "defeat device" in certain cars sold as "green" vehicles that tricked emissions tests into registering low carbon emissions rates when the cars actually emitted 36 times the permissible levels of pollution. Buyers who purchased the cars across the United States sued over the misrepresentations. Volkswagen, which pleaded guilty to charges emanating from the scandal in both the U.S. and in Europe, settled with most buyers in a multi-district litigation heard in federal court in San Francisco.

     Nine purchasers who opted out of the settlement chose to try their cases. Under the terms of the joint trial, VW admitted liability but challenged the claimed damages. The purchasers brought several causes of action, including claims under California's lemon law and its consumer-protection law. However, the court treated the settlement offer made prior to the lawsuits as a bona fide attempt to settle the claims, throwing out the consumer-protection cause of action. The reply brief asserts that this was error because the settlement did not qualify as an offer under the law and included a waiver of other claims, which is inconsistent with California precedent. The court also ruled the cars fit for driving, even though the California statute has more rigorous requirements, including one that bars mislabeling the vehicles.

    Four of the plaintiffs won jury verdicts of $25,000 each in punitive damages. The court reduced those verdicts to a 4:1 ratio, putting each punitive-damage award under $10,000.  The reply brief argued that this misconstrued Supreme Court precedent that has rejected mandatory ratios and permits higher punitive damages when the compensatory damages are small.

    The case is due to be argued December 10.


CCL's Peck Quoted in Bloomberg Law Story on Vaccination Mandates

November 9th, 2021

     With the Biden Administration's vaccine mandate for large employers due to go into effect in January, the Fifth Circuit and several other courts are considering challenges that seek to stop the mandate. In a story on the Bloomberg Law website, CCL's Robert S. Peck is quoted that, strategically, the administration might wait to see what different courts decide initially before seeking the U.S. Supreme Court's intervention, given that there is still time before the mandate is due to go into effect.

     The story can be found at White House Biding Its Time in Fight Over Shot-or-Test Mandate.


CCL Opposes Motion to Dismiss in First Amendment Case

November 3rd, 2021

     In a brief filed today, CCL argued that the State of Florida's motion to dismiss two counts in a First Amendment challenge it filed should be denied.

      In RAF v. Brown, CCL has challenged the constitutionality of a 2021 state law that prevents roofing contractors from doing anything that might encourage a homeowner to make a claim under the homeowner's insurance policy. The law transparently attempts to keep homeowners in the dark about the coverage that the policy they have paid for might provide. On November 22, CCL will argue in favor of a preliminary injunction on the law.

       Even while that motion for injunctive relief remains pending, the State has sought to dismiss two minor claims relating to whether the law violated the impairment of contracts provision in the U.S. Constitution and one argument against a provision that imputes legal violations of third-parties to contractors. 

       The brief filed today argues that Florida's complaint about the skeletal nature of two sentences in the complaint fails to read the complaint as a whole and the much more substantive description of the claims that becomes evident from that reading. No date has yet been set for argument on the motion for a partial dismissal.

CCL Files Opening Brief in Texas Cap Challenge

October 20th, 2021

     In a federal constitutional challenge to the Texas damage cap on noneconomic damages in medical malpractice cases, CCL filed its opening brief, arguing that the Seventh Amendment to the U.S. Constitution was overdue for application to the States and invalidates the statutory limit on damages. 

     Under the Incorporation Doctrine, the Supreme Court has applied selective provisions of the Bill of Rights to the States, starting with the First Amendment's Free Speech Clause in 1925. The pace of incorporation quickened in the 1960s under the Warren Court, but then fell into a period of stasis. However, over the past ten years, the Supreme Court has rediscovered incorporation, starting with gun rights under the Second Amendment. Recent decisions have seen incorporation of the Excessive Fines Clause from the Eighth Amendment and application of the unanimous criminal jury verdict provision in the Sixth Amendment.

      One provision that the Court has not addressed in more than a century is the Seventh Amendment, which preserves the right to a jury trial in civil cases. The CCL brief demonstrates that the Seventh Amendment meets the criteria for incorporation, perhaps more urgently than other provisions.

       The Seventh Amendment establishes that juries are the judges of damages. A legislative revision of its assessment of damages, the brief further argues, interferes with the jury's prerogatives as established at common law prior to the promulgation of the Constitution. The Seventh Amendment constitutionalizes that authority and immunizes it from legislative interference, the brief further contends.

        Simultaneous opposing briefs were filed by the Texas Attorney General, defendant health-care providers, and the Texas Hospital Association. All parties have until December 3 to file reply briefs. The case, Winnett v. Frank, is pending in the U.S. District Court for the Western District of Texas.

CCL Argues Personal Jurisdiction Issue Before En Banc Proceeding in the Fifth Circuit

September 21st, 2021

     CCL President Robert S. Peck told an en banc panel of 17 judges in the Fifth Circuit that the application of an "at-home" requirement as a matter of due process renders Federal Rule of Civil Procedure 4(k)(2) a nullity and unconstitutional in all its applications during oral argument in Douglass v. NYK Line. A federal district court in New Orleans had thrown the case out because it held that a 2016 precedent in that circuit had added the "at-home" requirement. After a panel upheld the ruling based on that precedent but urging the Court to rehear the case to reconsider the 2016 ruling, the court granted a petition to rehear en banc to do just that.

     The case arose after a larger container ship operated by a Japanese company struck a U.S. Navy destroyer in the Sea of Japan, resulting in the deaths of seven U.S. sailors and injuries to 40 others. Representing the injured parties, along with the Koonz McKinney law firm of Washington, DC, Peck explained that Rule 4(k)(2) was adopted, with the agreement of the Supreme Court and the Congress, to address precisely these situations. It provides federal personal jurisdiction over defendants in federal causes of action where no state court can assert jurisdiction over the parties. To satisfy due process, all that is required are sufficient continuous and substantial contacts on a national basis, Peck said. However, no defendant can be "at home" in the United States and still not be subject to state-court jurisdiction.

    Peck further argued that the rule has especially important application in admiralty cases, like this one, where U.S. courts have exercised jurisdiction over the course of more than two centuries as a function of international law applicable to maritime nations. 

    The case now is under advisement, awaiting decision by the 17-judge court.

CCL Files Reply Brief in Support of Preliminary Injunction of Florida Law

September 17th, 2021

    Representing three plaintiffs seeking a declaration of unconstitutionality of a new Florida law that restricts the marketing and solicitation efforts of roofing contractors, CCL told a federal court that the law is aimed at discouraging homeowner claims for roofing damage, rather than its purported purpose of dissuading fraudulent claims. The case, Restoration Association of Florida v. Brown, was filed in the U.S. District Court for the Northern District of Florida.

    CCL moved for a preliminary injunction against a number of provisions in the law, all of which are designed to limit information about homeowners' insurance policies and their coverage by prohibiting roofing repair advertising that encourages homeowners to make an insurance claim, even if the policy covers that repair. In addition, it prohibits contractors from offering a "thing of value" such as a gift card or discount to encourage a homeowner to hire a roofing contractor in instances where an insurance claim might be made. It further prohibits roofing contractors from interpreting or advising the homeowner about an applicable insurance policy, prohibits payments for referrals where an insurance claim will be made, and makes the contractor the responsible party if a third-party violates legal requirements before a repair is referred to the contractor. 

   CCL has argued that most of the provisions violate the First Amendment. The State of Florida has defended by claiming that there is a close and obvious connection between the prohibitions and preventing fraud, but CCL's reply brief shows that there is none. In fact, Florida put in evidence that 90 percent of the time no fraud occurs when insurance claims are made for roofing replacement or repair. Florida homeowners have significant needs for those services because it is subject to frequent instances of severe weather, such as hurricanes.

    The court is expected to schedule a hearing on the preliminary injunction.

Judge Sets Briefing Schedule in CCL Challenge to Texas Medical-Malpractice Cap

August 27th, 2021

    Judge Lee Yeakel set a schedule for briefs and argument in a case challenging the cap on medical-malpractice damages that Texas enacted nearly 20 years ago. In Winnett v. Frank, CCL has joined with Hartley Hampton of Hampton & King to argue that the cap violates the Seventh Amendment's right to trial by jury. 

    At a status conference requested by the parties, Judge Yeakel gave each side an October 20th deadline for opening briefs and a December 3 deadline for reply briefs. The case will be argued in January.

    Texas amended its state constitution to permit the legislature to enact the damage-cap statute. As a result, the only test of its constitutionality available is through the U.S. Constitution. In recent years, the Supreme Court has found that parts of the Bill of Rights that had not been applied to the States are "incorporated," by the Fourteenth Amendment's due-process clause. One of the outlier individual rights that has yet to be applied to the states is the civil jury-trial right. Winnett seeks to correct that oversight and invalidate the damage cap.

CCL's Peck Helps Oppose Nursing Home Motion to Dismiss

August 19th, 2021

     In a filing in an Illinois trial court, lawyers for the estate of a nursing home resident who died from COVID-19 opposed a motion to dismiss that argues a gubernatorial executive order gave nursing homes immunity from liability for "rendering assistance" to the State in its fight against the health-care crisis. 

    The brief opposing dismissal in Heimbrodt v. Geneva Nursing, written by CCL's Robert S. Peck as consulting counsel, argues that the nursing home did not qualify for immunity because it rendered no assistance to the State but only continued its operations as it had before, that any immunity that could conceivably be applicable had to be directly related to the care of the decedent, which it was not, and that, if the immunity extended so far as to cover the defendant nursing home, it violated the separation of powers, equal protection, special legislation, and takings provisions of the Illinois Constitution.

    The defendant will have an opportunity to file a reply brief in the case. 

CCL's Peck Participates in Moot Court in PLCAA Challenge

August 19th, 2021

   In Gustafson v. Springfield, Inc., the Pennsylvania Superior Court will re-hear en banc a challenge to the application and constitutionality of the federal Protection of Commerce in Arms Act (PLCAA), a law designed to provide gun manufacturers and retailers with immunity from state common-law causes of action. An earlier panel of the court had struck down the federal statute for overstepping Congress's Commerce Clause powers and violating Tenth Amendment federalism guarantees. 

    Gustafson is a products liability action that asserts the gun manufacturer was responsible for the death of a youth because the gun lacked certain safety features. The manufacturer successfully moved to dismiss the case, asserting that it was protected by PLCAA. On August 25, the court will re-hear arguments about PLCAA's applicability and constitutionality. The case will be argued by Jonathan Lowy, legal director of Brady United. In preparation for the argument, Lowy underwent a practice round with CCL's Robert S. Peck, along with two other frequent U.S. Supreme Court practitioners.