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     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.

     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.

     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.

     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.

     Responding to critiques about unenumerated constitutional rights, CCL President Robert S. Peck devoted his post to the Appellate Advocacy Blog to the subject, explaining both textual and originalist justifications and for proper application of common-law interpretative methodologies. 

     In Denying Unenumerated Rights, Peck explains that all sections of the political spectrum have their favorite implied rights that they insist is embodied in the Constitution. The disagreement, then, is not about the existence of such rights, but how they are read into the Constitution.

     Arguing that a Fourth Circuit panel ruled inconsistently with both Supreme Court and its own precedents, CCL President Robert S. Peck filed a petition asking that the case be reheard en banc. The panel's decision two weeks earlier overturned a district court ruling that a West Virginia statute restricting attorney advertising violated the First Amendment.

      In upholding the statute, the Fourth Circuit decision found not constitutional issue with a law that prohibited attorney's from truthfully stating that a drug or medical device had been recalled. To the panel, the word "recall" was inherently misleading and could cause "medically unsophisticated" consumers to think that it was recalled by the government, even though recalls are voluntary actions of a manufacturer under federal law. As the petition pointed out, only attorneys advertising about drug and medical device cases are prohibited from using the word "recall." The FDA and manufacturers are still permitted in the challenged statute to use them in press releases and on web sites to tell the public a product has been recalled. Precedent forbids government from reserving the truthful use of a word to only certain speakers.

      An additional flaw the brief pointed out to the Fourth Circuit is that the panel utterly ignored the unrebutted evidence that West Virginia required attorneys to add a long list of disclaimers to the advertisement, so long that it took up 30 seconds of a 30-second television advertisement. That type of burden violates the First Amendment under Supreme Court precedent.

      A petition for rehearing en banc is discretionary with the court. No response is required from the State of West Virginia until requested by the court.

     In Recht v. Morissey, the Fourth Circuit held today that West Virginia could ban lawyer advertising about drug and medical devices from truthful use of the word "recall," calling it a "loaded," "troublesome," and "misleading," as well as other provisions previously invalidated in a CCL case by a federal district court. CCL president Robert S. Peck pledged to seek rehearing en banc, describing the decision as inconsistent with Fourth Circuit and U.S. Supreme Court precedent. 

     The decision accorded significant discretion to the state legislature, even though First Amendment precedent required the state to demonstrate that the problems it addressed were real, would be materially advanced by the chosen methods, and that no less extensive approach would suffice. The decision also upheld disclosure requirements that took up 30 seconds in a 30-second advertisement without providing any rationale for doing so. It also treated a requirement that lawyers tell viewers to consult their physician before discontinuing use of any medication, even when the advertising had nothing to do with medication. Such a requirement has no justification in such a case. It further treated that disclaimer as factual and uncontroversial, even though the district court termed it "medical advice."

     The petition for rehearing en banc is due May 11.

     CCL President Robert S. Peck participated in the Spring 2022 meeting of the Legal Affairs Committee of the American Association for Justice, where he spoke about his recent argument in the Ohio Supreme Court in Brandt v. Pompa, a constitutional challenge to the damage cap applicable to personal-injury lawsuits.

      In Brandt, under a state statute, the trial court reduced a $20 million jury verdict to $250,000 where the plaintiff had been the victim, as an eleven- and twelve-year-old, of more than 30 sexual assaults by a friend's father, who had drugged her during sleepovers. Peck argued that the statute violated the state constitutional right to trial by jury, but also was unconstitutional as applied to Brandt because the legislature had no justification for treating her differently from those suffering permanent physical injuries, whose damages are not capped.

      The case, argued in late March, is currently under advisement, with a decision expected before the end of the year.

     In two separate cases, CCL replied today to state briefs defending the Illinois governor's authority to grant immunity to nursing homes that allegedly did nothing different than they normally do for "rendering assistance" to the state in the pandemic, pointing out that nothing in state law provides that type of extraordinary authority to the executive.

     The dispute arises in two cases in which nursing home residents died after the homes failed to take any relevant precautions to protect the residents from COVID-19. In seeking dismissal of negligence allegations against them, the homes' invoked a temporary executive order from Illinois Governor JB Pritzker that asked health-care providers to render assistance to the state's efforts to combat the pandemic and granted immunity from negligence liability in return.

      CCL argued that the Illinois Emergency Management Agency Act does not provide the authority claimed by the governor and does not allow him to unilaterally suspend the Illinois Nursing Home Reform Act, particularly where no assistance was rendered to the State. As a result, the grant of immunity violated separation of powers, equal protection, and due process. Moreover, it constitutes a form of special legislation by providing improper economic favoritism without justification.

     In a reply brief filed in a New York lawsuit, CCL argued that the Brooklyn Diocese cannot redact a full 18 pages of potential discovery on the grounds that the documents inform the Vatican of a priest's misconduct and should be protected by an imaginary "bishop workplace privilege." Instead, of permitting the religious authority to be the judge of its own discovery determinations, CCL argued for in-camera review and selective redactment because the documents apparently contained factual information about sexual misconduct by the priest at the heart of the case, J.D. v. Roman Catholic Diocese of Brooklyn.

     In the case, CCL joined Janet, Janet & Suggs in representing the plaintiff on this discovery dispute. The Diocese argued that the First Amendment permits it to withhold documents that formed the basis for the Church's defrocking of a priest and internal religious governance. In the brief filed today, the Plaintiff disclaimed any interest in the church governance or the defrocking process, only relevant factual information about the priest's similar sexual misconduct over the years. The brief further argued that the First Amendment provides no shield against discovery of such information. 

     The court is expected to hold oral argument on the issue in May.