News

     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.

    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 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.

     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. 

   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. 

     In a brief status hearing, federal Judge Allen Winsor consulted with counsel for the opposing parties and set an initial schedule to move the First Amendment challenge filed by CCL for the Restoration Association of Florida and Apex Roofing and Reconstruction forward on August 6.

      The case, filed in the Northern District of Florida, challenges a new state law that limits advertising and other marketing efforts by roofing contractors in an effort to discourage homeowners from making insurance claims for home damage. Another Northern District judge has already preliminarily enjoined the advertising prohibition. The plaintiffs are represented by CCL's Robert S. Peck

     CCL's Robert S. Peck filed a motion for a preliminary injunction against a new Florida law that restricts roofing contractors from advertising that encourages homeowners to make a valid insurance claim or assigning the insurance benefit to the contractor, all of which are standard, legal practices in the state, as well as a variety of other provisions that prohibit speech but not the practice.

     The new law went into effect on July 1. Shortly before CCL's motion on behalf of the Restoration Association of Florida, Apex Roofing and Reconstruction, and a homeowner, another judge in the same court issued a preliminary injunction against the advertising provision in a different case that did not address other provisions in the law. 

     The law was enacted to prevent insurance fraud, but, as the CCL motion argues, it is utterly unconnected to the State's objectives. The case was filed in the U.S. District Court for the Northern District of Florida.

     Louisiana Governor John Bel Edwards vetoes S.B. 43, a bill intended to restrict attorney advertising and based on the same legislation that CCL successfully argued was unconstitutional in West Virginia. CCL's Robert S. Peck testified against the Louisiana bill in the Senate and House Commerce Committees, explaining why it was unconstitutional. The legislation, nonetheless, was approved by both Houses. 

     However, the governor vetoed the bill, ending its journey into law. In May, a federal district court declared the West Virginia version of the bill unconstitutional in a case brought by CCL with the Segal Law Firm. The State of West Virginia has, however, appealed the decision, and a briefing schedule for the appeal has now been set.

     Emphasizing the difference between prohibiting speech about legal practices and rendering the practices illegal, CCL today challenged a new Florida law that prohibited roofing contractors from encouraging or inducing Florida homeowners from filing an insurance claim on their existing policies. 

     Strangely, Florida's Department of Financial Services recommends that consumers first talk to a contractor, receive an estimate, and then contact their insurer, if the cost exceeds any deductible on the homeowner's policy by a sufficient amount. The lawsuit challenges that provision on First Amendment grounds, but also challenges other provisions of the new statute, due to go into effect July 1.

      Among its other provisions, the law prohibits contractors from inducing an insurance claim by informing homeowners of their right to assign the benefits of the insurance policy to the contractor. Assignment of benefits is a standard practice that the Florida courts have held cannot be denied by insurers, even if written into its contract with policyholders. The prohibited advertising practices cover the contractors' websites, so that those that are part of a multi-state company would, under the law, have to expunge information about working with the insurers on behalf of the policyholders so that homeowners do not have to front the costs of remediation and repair.

     Violations of the new rules can result in disciplinary action that includes suspension or loss of a contracting license, and fines of up to $10,000 per violation. 

     The case challenging the new law was filed on behalf of the Restoration Association of Florida, whose 300 members work in the repair and remediation industry, as well as Apex Roofing and Restoration, the largest roofing repair company in the Southeast, and a client of Apex roofing.

    Medical malpractice plaintiffs challenging the constitutionality of a Texas law limiting noneconomic damages filed a memorandum opposing a motion to intervene by the Texas Hospital Association today, written by CCL's Robert S. Peck.

    The THA argues that because the individual plaintiffs were joined by two groups, Texas Watch and the National Medical Malpractice Advocacy Association, two organizations whose members include individual medical malpractice plaintiffs, it should be allowed to become a defendant in the case to provide opposing views as a advocacy organization.

     The CCL memorandum argues that THA makes a potential case for amicus status but does not qualify to become a party, taking discovery, putting on evidence, and otherwise adding to and complicating the proceedings. The statute is already being defended by a multitude of health-care providers who will likely be joined by the Texas Attorney General's office, which is obliged to defend the statute. The opposition to intervention further states that the THA has not identified any claims or defenses it uniquely brings that have common facts or law to those already in the case, as evidenced by the vanilla answer it proposed filing that contained no affirmative defenses. A second requirement THA failed to meet is that they must show that the statute is inadequately defended. The THA motion makes no attempt to do so.

     The case, Winnett v. Frank, is pending in the U.S. District Court for the Western District of Texas.