News

CCL Opposes Trial Continuance

October 4th, 2022

     In a brief filed opposing the Defendants' motion to continue the upcoming trial date in In re Behr Thermal Products, CCL told the trial judge that it should not credit the Defendants' eleventh-hour claim that they are baffled about what common issues would be tried to the jury and which withheld for individual trials before different juries.

     CCL explained that the Defendants had litigated those issues repeatedly in the federal district court and in the Sixth Circuit. CCL reemphasized its oral argument earlier in the week, demonstrating that no Seventh Amendment issues remain and that the trial date set long ago should not pose sudden issues about preparing in time that the Defendants now raise. 

     CCL was brought into the case by Plaintiffs' counsel for the Seventh Amendment issue. CCL President Robert S. Peck wrote the brief filed today and made the earlier oral argument.

Peck Argues Bifurcation of Class Action Comports with Seventh Amendment

October 3rd, 2022

     Arguing that the Sixth Circuit had already settled the question in this case, that sister circuits were in agreement, and that the leading treatise on class actions also concurred, CCL President told Judge Walter H. Rice that the defendants in a class action were mistaken when they argued that bifurcation of a toxic tort case necessarily violated the Reexamination Clause of the Seventh Amendment.

     In the now 14-year-old case, In re Behr Dayton Thermal Prods. LLC, homeowners had brought property damage claims based on chemicals dumped from nearby plants. Just weeks before trial of class-wide issues, the defendants again raised Seventh Amendment issues with the procedure, arguing that the danger that a second jury would reexamine issues determined by a first jury was too great to permit the case to go forward as a class action. The judge had determined that the case would be split into two phases. The first phase would try principles of negligence to establish defendant responsibility and general causation, establishing that the dumped chemicals were capable of the alleged damage. If the plaintiffs prevailed, then individual trials would take place in which each class member would have to show that their homes were damaged by one or more defendants and what compensation would be appropriate. 

     On behalf of the plaintiff class, Peck explained that first jury's findings were binding on the second jury in a jury instruction would prevent any Reexamination Clause issue. In a 2018 decision, the Sixth Circuit, in the very case before the district court, had said as much. Peck argued that the defendants' issue was with that appellate decision, which was mandatory precedent under the law of the case and mandate rules so that the district court had no choice but to follow it. Moreover, Peck said, the defendants' issue is not really a Seventh Amendment issue but an objection to the court's case management choices, which is tested by whether the court abused its discretion. 

      The judge chose to take the issue under advisement.

CCL Opposes Dismissal of First Amendment Action

September 30th, 2022

     CCL told a federal court in Florida that the State's motion to dismiss a challenge to a 2021 law that prohibits contractors to advertise that they provide insurers with everything they need when a homeowner needs a roofing repair or replacement lacks merit. The case, RAF v. Griffin, in the Northern District of Florida, seeks to invalidate a variety of provisions in the new law that the State claims is needed to prevent insurance fraud.

      The State argued that the complaint alleged insufficient information for a facial challenge and, in many respects, had misinterpreted what the law permits and forbids. However, in its response, CCL showed that the State's Consumer Insurance Advocate, who the State proffered as an expert, interpreted the law the same way in defending the statute. The case is deep into the discovery process, even as the State seeks its dismissal. 

       In alleging widespread insurance fraud, the State told the Legislature that approximately ten percent of insurance claims are fraudulent, though it cited no source for that estimate. Even if taken at face value, CCL's brief said that the State's claims provided no justification for restricting advertising that does not seek to induce fraud but to win over customers worried about whether the insurance claims they legitimately have will be paid on a timely basis. It is particularly ironic that Florida seeks to prevent insurance claiming by homeowners who pay some of the highest premiums in the nation at the same time that Florida was hit by Hurricane Ian and suffered widespread devastation. Florida is especially vulnerable to extreme weather due to being surrounded on three sides by water.

Peck Argues Plaintiffs Seeking Increased Funding for the Courts Deserve their Day in Court

September 27th, 2022

     CCL President Robert S. Peck urged the Washington Court of Appeals to reverse the dismissal of an action by plaintiffs whose cases were delayed due to systemic underfunding of the courts, arguing that the State's arguments in favor of dismissal lack support.

      In Ralston v. Washington, the plaintiffs argued that decades of pleas by state supreme court chief justices had fallen on deaf ears in the Legislature and has systematically starved the courts of resources. The trial court dismissed the action without an opinion explaining the decision. Peck argued the state's arguments miscontrued precedent. 

      The State relied heavily on an argument that only the judiciary itself could sue for increased funding, but Peck pointed out that the judiciary does not exist for its own benefit but to serve the people through the fair and timely administration of justice. He pointed to decisions where the judiciary was not the plaintiff but that the cases were decided against those seeking increased funding because of a failure of evidence, rather than a lack of standing. 

       Peck also pointed to the state constitution's guarantee of access to the courts "without unnecessary delay," as well as its guarantee of an inviolate right of trial by jury. He countered the State's claim that the former applied only to the judiciary and only guaranteed public trials with a decision that invalidated a legislative obstacle to filing a case in court, a decision he himself won in the Washington Supreme Court. He also pointed to a federal decision from the Ninth Circuit that found delays of jury trials because of budgetary constraints to violate the federal Constitution.

     The case is under advisement.

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.