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.

CCL Opposes Dismissal of Florida Commercial-Speech Case

August 23rd, 2022

     In a brief filed in federal court in Florida, CCL argued that the multiple grounds asserted by the State to dismiss a challenge to restrictions on advertising and solicitation by roofing contractors should be denied. The State asked the Court to dismiss the case with prejudice, but CCL's brief shows why the case is both viable and should succeed on the merits.

      The case involves a Florida statute that, among other things, requires roofing contractor advertising to avoid any direct or indirect suggestion that the homeowner should file a claim with its insurer to cover damage or loss under a property insurance policy. The State claims that the provision is part of an anti-fraud measure, but CCL's points out that the advertising does not seek to encourage fraudulent claiming, only legitimate claims. Moreover, the State has conceded that only a small percentage of claims are fraudulent, though it has also failed to explain how it obtained that figure.

     The case is pending in the U.S. District Court for the Northern District of Florida. It is captioned Restoration Association of Florida v. Griffin

CCL Files Opposition to Motion to Dismiss in Florida Statutory Challenge

August 1st, 2022

     In its pending challenge to a Florida statute that limits marketing strrategies by roofing contractors, CCL President filed his brief in opposition to the State's motion to dismiss. The motion claims that the complaint should be dismissed with prejudice because it fails to state a viable claim.

      CCL's opposition, filed by President Robert S. Peck, lays out the claims and why it remains not just viable but meritorious. To the extent that the State's motion focuses on formatting issues, the opposition asserts that the complaint could be easily renumbered to satisfy the State's concerns.

CCL's Peck Quoted by Bloomberg Law about State Constitutions and Abortion after Dobbs

June 29th, 2022

     In "Abortion Rights Wars Shift to Battles over State Constitutions," Bloomberg Law reporter Mary Anne Pazanowski details the developing legal battle between the two sides now that the U.S. Supreme Court has abrogated the federal constitutional right. 

      She quotes CCL President Robert S. Peck, as a former law professor who taught classes about state constitutions, about the state of constitutional law on abortion rights. Peck noted that four states have used explicit state constitutional privacy rights to uphold rights to abortion, while other states have found a right under other provisions. Still, Peck points out that, as the Iowa Supreme Court held recently, changing membership on courts open the rights already established to reconsideration.

       The article can be found at Bloomberg Law on State Constitutions and Abortion.

CCL Wins Seventh Circuit Decision in COVID Death Case

June 15th, 2022

      Unanimously, the Seventh Circuit today held that a case alleging that an Illinois nursing home bore liability for the COVID death of one of its residents should be returned to state court for further proceedings in a case argued just two weeks ago by CCL President Robert S. Peck.

      In Martin v. Petersen Health Operations, the estate of Marlene Hill alleged that the nursing home resident died of COVID-19 due to negligence and willful and wanton misconduct that included insufficient staff, requiring staff with COVID symptoms to continue to work and expose vulnerable residents, and a failure to undertake any protective measures in a case filed in Illinois state court. The nursing home then removed the matter to federal court. In support, it claimed that it was acting under a federal officer as part of the national government's COVID response effort, that the case belonged in federal court due to a 2005 federal statute known as the PREP Act, and that the liability, if any, arose under federal rather than state law. 

      Based on a brief written by CCL, the district court ruled that none of the grounds asserted by the nursing home were valid and ordered the case remanded to state court. The nursing home appealed the decision to the Seventh Circuit, which heard argument on June 2. In a ruling written with unusual rapidity by Judge Frank Easterbrook, the Seventh Circuit affirmed the district court and found no merit in the nursing home's argument. By rejecting those arguments and ordering the return of the case to state court, the Seventh Circuit joined three sister circuits, the Third, Fifth, and Ninth Circuits, in ruling that way.

      In its briefing, CCL pointed out that in addition to the appellate court rulings, more than 80 district courts had also ruled consistently with those decisions, with no valid decision coming out the other way. The Seventh Circuit also rejected the nursing home's reliance on pronouncements from the Department of Health and Human Services, holding that these lightly supported advisory opinions bore no weight.

      In arguing these issues, CCL served as co-counsel to the Chicago law firm of Levin Perconti.

CCL Challenges New Florida Statute Treating Insurance Assignees Differently from Insureds

June 1st, 2022

     Challenging a new Florida statute passed at special session less than a week earlier, CCL contended that a statute that home-repair contractors who receive assignments of benefits from a homeowner insurance policy cannot be treated less favorably than the homeowner and thus violates the Florida Constitution.

     Florida legislators targeted assignees in response to pleas from the insurance industry that property insurers were paying too much after wrongfully denying insurance benefits and then being successfully sued for clams that the insurers promised to pay after receiving premiums to assure coverage. Under the statute, a homeowner who receives covered repair and remediation services may sue for wrongfully denied benefits and receive attorney fees, but when the insurance proceeds are assigned to a contractor, a common occurrence, the assignee is not entitled to attorney fees for a successful lawsuit. The provision has the practical effect of making such lawsuits too expensive to bring for denials that can average $3500, thereby creating a perverse incentive for insurers to deny coverage and obtain a windfall.

     The lawsuit argues that the provision violates the Florida Constitution's single-subject restriction on legislation, its access to courts guarantee, equal protection, and due process. CCL is co-counsel in the case with the Boca Raton law firm of Shapiro, Blasi, Wasserman & Hermann.

Fourth Circuit Denies Rehearing En Banc and Motion to Stay Mandate

May 31st, 2022

     The Fourth Circuit denied serial applications from CCL to first rehear the case en banc and then to stay its mandate pending a petition for certiorari in the U.S. Supreme Court in the law firm's challenge to a West Virginia restrictive advertising statute that the district court held violated the First Amendment.

      In its rehearing petition and its stay motion, CCL argued that Supreme Court precedent does not permit a state to prohibit certain words, truthfully used, from only some speakers and also prohibits the state from requiring advertising include such substantial disclaimers that it blots out the speaker's message. The underlying statute bans the word "recall" from attorney drug and medical device case advertising, even though the word is accurately used when a manufacturer recalls a product for violating federal law. When a recall is issued, both the Food & Drug Administration and the manufacturer put out press releases and website information that the drug or medical device was recalled. Only lawyers advertising for clients injured by those devices cannot tell consumers that the product was recalled. Under Supreme Court precedent, that type of prohibition constitutes a form of content discrimination that is rarely justified. Even so, the Fourth Circuit permitted the statute to stand because it was concerned that "medically unsophisticated" persons would misinterpret the words and stop taking medication on the basis of the advertising, but, apparently, not on the basis of the FDA and manufacturers' use of the term.

     In addition, the Fourth Circuit failed to address CCL's argument that 30 seconds of disclaimers, which would take up the entirety of a television or radio advertisement was unduly burdensome in violation of other Supreme Court precedent. 

      A petition for certiorari in the case is due in late August.

CCL Joins Challenge to New Florida Property Insurance Statute

May 27th, 2022

     Just days after being signed into law, CCL has filed a new challenge to a special session statute designed to cut the costs for property insurers that deny legitimate homeowners' claims, arguing that it violates the Florida Constitution.

     Governor Ron DeSantis called the legislature into special session to enact the law as part of an effort that claims that property insurance carriers face a financial crisis. The solution the Legislature chose within an omnibus bill was to prevent contractors who receive assignments of benefits from receiving attorney fees when they have to go to court to force the insurer to honor the homeowner's policy. Homeowners, however, may still receive attorney fees for a successful suit under the same circumstances when they do not sign an assignment of benefits. 

     The lawsuit, filed with Boca Raton's Shapiro Blasi law firm, argues that the statute creates a perverse incentive for insurer's to deny claims, knowing that the vast majority of claims for a few thousand dollars will not be economically viable without the award of attorney fees. Plaintiffs claim that the statute violates the state constitution's single-subject rule, access to the courts, due process, and equal protection.

CCL Calls Court's Attention to New Decision Supporting Clients

May 23rd, 2022

     In a notice of recent decision, CCL alerted the court hearing its challenge to the Texas medical-malpractice damage cap to a recent decision of the Fifth Circuit that supported CCL's arguments on the Seventh Amendment's right to trial by jury.

     In Winnett v. Frank, the federal district court in Austin, Texas heard oral argument on the constitutional issues and standing in February that asserted the Seventh Amendment satisfies the criteria that applies Bill of Rights provisions to the States and that it prevents other branches of government from substituting their determinations for the jury's assessment of damages as a set of facts constitutionally committed to that body. 

     In a new decision, the U.S. Court of Appeals for the Fifth Circuit, the appellate court that oversees the district court in which Winnett is pending, invalidated certain administrative proceedings held by the Securities and Exchange Commission as constitutionally unsound. While the primary ground was based on separation of powers, the court also found the substitution of administrative procedures to violate the right to a jury trial. The historic analysis that supported the decision tracked CCL's arguments about the scope of the jury-trial right.

     A decision on the issues briefed is pending in Winnett.