News

      A brief written by CCL told the Illinois Appellate Court that the Attorney General's invited brief, which denies immunity to a nursing home defendant in six cases where it did not undertake any special efforts to render assistance to the State, provides an authoritative rendering of the Governor's intent when he issued an executive order responding to the COVID-19 health crisis.

     In responding to the brief, the nursing home claimed that the Attorney General had improperly taken sides and that his interpretation misread the order's plain language. The CCL brief countered that reading, explaining that it not only made sense, but reflected the obvious and clearly expressed intent behind the order. Any other interpretation, CCL argued, raised profound constitutional separation of powers issues that should be avoided.

     The court is expected to issue its decision on whether the nursing home is entitled to immunity without further hearing.

      The Ohio Supreme Court issued its mandate in Brandt v. Pompa, striking the state's personal-injury damage cap in a case involving the repeated rape of a minor. The 4-3 decision, issued December 16 after argument by CCL President Robert S. Peck, held that the statutory exception to the cap, for permanent and catastrophic physical injuries, denied due process to the plaintiffs who had permanent and catastrophic psychological injuries, a distinction in the legislation that had no rational basis. 

       The defendant, however, filed a motion for reconsideration on December 27, along with a request that all four justices in the majority recuse themselves. The reconsideration motion largely reargued his losing case, but also emphasized a complaint from one of the dissenting justices -- that the majority had rushed him to complete his dissent in order to issue the decision and allow reconsideration to be determined this year, while the same justices who heard the case were intact. Chief Justice Maureen O'Connor, who wrote the decision, reached mandatory retirement age this year, so that she must step down on December 31. The alleged departure from internal operating procedures in forcing the dissenter to issue his opinion served as the basis of the recusal request.

      The justices refused to recuse and, after CCL's Peck wrote a memorandum in opposition to reconsideration one day after the motion was filed, which urged summary denial, the Court did just that and issued a one-sentence denial of reconsideration. With that order, the case is now at its end.

     The Ohio Supreme Court struck a cap on noneconomic damages as unconstitutional when applied to permanent psychological injuries resulting from a sexual assault in a case argued by CCL President Robert S. Peck in March. Today's decision, by a 4-3 vote, found that the Ohio legislature acted irrationally by exempting permanent physical injuries from the cap but not permanent psychological injuries. 

      The case arose as a result of 34 sexual assaults, including eight instances of rape, on the plaintiff when she was 11 and 12 years old, after her friend's father had drugged her on repeated occasions during sleepovers. The father is now serving a life sentence in prison. 

      A jury awarded the plaintiff $20 million in damages subject to the legislative cap, which caused the trial court to reduce the verdict to $250,000. The Court of Appeals upheld the reduction, but with the new decision, the orginal verdict was restored because the majority found that the cap applied in this context violated the state constitution's due process guarantee. 

     The opinion can be found at Brandt v. Pompa.

    A trial court in Missouri denied a stay while BNSF Railway's petition to compel arbitration is pending in federal court. Last month, CCL President Robert S. Peck argued that the stay should be denied for multiple reasons, including that the arbitration clause was unconstitutional, that the arbitration agreement did not apply to many of the plaintiffs in this train derailment case, and that arbitration had been waived by BNSF's participation in the state court litigation. 

     The court's ruling came after extensive additional briefing. 

     In a petition for certiorari, CCL urged the Supreme Court to review the en banc decision of the Fifth Circuit, denying personal jurisdiction over a Japanese multi glomerate whose container ship struck the U.S.S. Fitzgerald in the Sea of Japan, killing seven U.S. Navy sailors and injuring more than 40 others. The Fifth Circuit's decision, which drew a strong 5-judge dissent, essentially rendered Rule 4(k)(2) of the Federal Rules of Civil Procedure unconstitutional, while unending centuries of admiralty law.

     The sailors and their families brought suit in federal court in New Orleans, alleging that the container ship's negligence was responsible for the deaths and injuries. They sought jurisdiction under Rule 4(k)(2), which provides long-arm jurisdiction over foreign companies for federal causes of action when no state court of general jurisdiction can hear the case and when the foreign company has sufficient contacts with the United States as a whole. However, the federal district court applying a Fifth Circuit precedent that merely assumed that Rule 4(k)(2) was a form of general jurisdiction, held that despite extensive U.S. contacts the Japanese company still had to be incorporated or headquartered in the U.S. to satisfy due process under the Fifth Amendment.

     A three-judge panel of the Fifth Circuit affirmed because of the in-circuit precedent, but urged their colleagues to reconsider the precedent en banc. This was the result that CCL President Robert S. Peck urged upon the panel in oral argument, if the earlier decision could not be distinguished. A 17-judge court then reheard the case, with Peck arguing again, but ruled 12-5 to affirm the dismissal of the matter. 

      Today's petition urged the Supreme Court to take up the case and reverse. Lawyers for the defendant will file a brief opposing that position.

     With the denial of a petition for certiorari, the Supreme Court today ended Recht v. Morissey, CCL's challenge to a West Virginia lawyer advertising statute that, among other things, banned the truthful use of the word "recall" in solicitations for clients in drug and medical device cases. 

      CCL had won a federal district court decision, striking down the statute in a summary judgment motion. The U.S. Court of Appeals for the Fourth Circuit reversed, deferring to the legislative judgment that the use of the word was "inherently misleading" even when entirely accurate. That left only a petition to the Supreme Court as a way to obtain a more thoughtful decision that respected precedent. Unfortunately, the Court declined to hear the issue at this time, marking the end of the road for that particular case. Other challenges will undoubtedly be mounted.

     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.

     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.

     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.

     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.