CCL Files Briefs in Two FHA Cases

May 12th, 2021

     Representing the City of Miami Gardens, CCL filed briefs today in companion cases against Bank of America and JPMorgan Chase. The briefs replied to the banks in support of a motion that asked the Court to reconsider bifurcating discovery, a decision reached five years ago but never implemented because the cases were stayed while various related actions worked their ways through appeals.

     In both briefs, CCL justified reconsideration on the grounds that a recent Eleventh Circuit decision in another Miami Gardens case insisted that the City should have more vigorously sought more expansive discovery. Today's briefs explain that the motion for reconsideration was an attempt to do exactly what the appellate court instructed.

     The two cases were filed in 2014, but repeated appeals, including a couple of trips to the Supreme Court, slowed the case down.

CCL Files Two Briefs Opposing Dismissal in Fair Housing Act Cases

May 3rd, 2021

     Today, CCL filed briefs opposing motions to dismiss in two cases filed by the City of Miami Gardens, Fla. against Bank of America and Chase that accused the banks of discriminatory mortgage lending practices under the Fair Housing Act.

      The cases, pending for seven years, recently were reactivated after similar cases' appeals had run their course. The banks filed motions to dismiss, claiming the city lacks Article III standing, failed to meet the statute of limitations, failed to sufficiently allege proximate cause because the city's lost property tax revenue was too remote from the discriminatory mortgages to be actionable.

      In response the city's brief, largely written by CCL, argued that the city met the criteria for constitutional standing, alleged a continuing violation that allows relation back to earlier discriminatory loans because it identified more than one similar loan within the two-year period before the original complaint was filed, and met the standard for proximate cause because of the regression analysis it alleged, which every court to date has found sufficient.

     The banks will now have an opportunity to reply to the brief.

Plaintiff Seeks Rehearing in Seventh Circuit Case about Off-Duty Police Shooting

March 31st, 2021

     As a member of the legal team representing the victim of a shooting by an off-duty Chicago police officer, CCL filed a petition for rehearing and rehearing en banc in the U.S. Court of Appeals for the Seventh Circuit. 

     In the underlying case, Michael LaPorta was shot in the head by an off-duty officer, using his service revolver, during an argument the two were having at the officer's home. LaPorta survived, but suffered devastating injuries that will require lifetime care. The officer, who was the subject of 19 different complaints about his use of violence both on and off the job, but never disciplined, believed himself above the law. Even after this shooting, for which he was never disciplined, fellow officers attempted to cover up his crime and the City of Chicago attempted to defend its liability by claiming that the shooting was a suicide attempt.

     A jury found the city liable for its policies, customs, and practices of not disciplining police officers so that they could act outside the law with impunity because of their status. The Seventh Circuit reversed the verdict, holding that the city had no obligation to protect anyone from private violence from an off-duty police officer. 

    The new petition asks the court for reconsideration because precedent holds that a municipality can be liable for injuries where the city's policies, customs, and practices are the "moving force" behind the injury. By requiring that the injury be carried out by a state actor, as the opinion did, the brief argues that the panel improperly overruled existing precedent.

    The petition was primarily written by Chicago-Kent law professor Carolyn Shapiro. Others on the case besides CCL include the Romanucci & Blandin law firm of Chicago, Michael Rathsack of Chicago, and David Rudovsky of Philadelphia.

CCL Opposes Stay of Discovery in FHA Cases

March 29th, 2021

     CCL filed separate oppositions to motions to stay discovery filed by Bank of America and Chase in Fair Housing Act cases brought by the City of Miami Gardens, Florida. The banks, defendants in separate cases before the same judge, filed motions to dismiss the city's lawsuits against them, claiming that the city lacks standing, that the city cannot satisfy the statute of limitations, and that the city does not adequately plead that the banks are the proximate cause of the city's loss of property tax revenue as a result of discriminatory mortgage lending. Shortly after filing the motions to dismiss, the banks asked the court to stay discovery until their motions are decided.

    In its opposition to the stays, CCL's brief argues that precedent rejects stays unless two conditions are met. First, the motion to dismiss must be so strong that the city has no real defense to it. Second, that the motion to dismiss has been pending for an unseemly length of time, making a stay proper. Neither condition is met, CCL told the court. A slew of judicial decisions in related or similar cases supports the validity of the city's complaint, plus the motion to dismiss is so recent that the City has not yet filed its response.

     CCL represents Miami Gardens along with the City Attorney's office, Trial and Appellate Resources in California, and the Peretz law firm in Oakland, California.

Parties Propose New Scheduling Order in FHA Litigation

March 15th, 2021

     Counsel in two Fair Housing Act cases filed a new joint proposed scheduling order as the case resumes after being in civil suspense. In both cases, the City of Miami Gardens, Florida, sued banks over allegedly discriminatory mortgage lending practices that resulted in loss of property values and diminishing the property taxes the city could collect. The cases were filed in 2014, but were stayed repeatedly while related or similar cases proceeded through the federal appellate courts, including trips to the U.S. Supreme Court in which CCL represented both Miami and Miami Gardens.

     In the current cases, Miami Gardens separately sued Bank of America and JP Morgan Chase. The city filed an amended complaint in January after the case was revived. The proposed scheduling order, filed March 15, outlines the parties agreed and conflicting positions on deadlines and various issues. 

CCL Helps Write Sur-Reply in Nursing Home Death Case Where Defendant Claims Immunity under PREP Act

March 8th, 2021

     Working with the Levin & Peconti law firm in Chicago, CCL helped write a sur-reply brief that responds to the nursing home defendant's invocation of a interpretation of the PREP Act written in January by the prior administration.

      The Public Readiness and Emergency Preparedness Act, also known as the PREP Act, was enacted by Congress in 2005 and provides immunity from losses for the administration or use of certain countermeasures against diseases, threats, or conditions identified by the government, as long as the user of the countermeasures does not engage in willful misconduct. The measure was designed to free health-care providers from liability when a vaccine or other tool authorized for use in a public health emergency proves ineffective. 

      In Martin v. Peterson Health Operations, pending in the U.S. District Court for the Central District of Illinois, the plaintiff alleges that the nursing home defendant failed to undertake necessary steps to prevent the spread of COVID-19 in its facility and that failure resulted in the death of a resident, whose estate has sued. Peterson Health removed the case from state court to federal court and then asserted that the case should be dismissed under the PREP Act.

      The vast majority of courts in cases like this one, with only one outlier decision, have held that the PREP Act does not apply when there has been no administration or use of a countermeasure. However, the general counsel of the Department of Health and Human Services in the outgoing administration issued an 11th hour interpretation of the PREP Act and asserted that a decision against using countermeasures was covered by the Act's immunity provision as well. Although the defendant asserted that the interpretation had a binding effect, the sur-reply cites decisions that recognize a statutory interpretation by a general counsel of an administrative agency does not have the force and effect of binding law and that the interpretation itself acknowledges that it is not binding. The brief was filed March 8.

CCL Files Amicus Brief Highlighting Serious Constitutional Flaws in Proposed Roundup Settlement

March 5th, 2021

     In a brief filed on behalf of the American Association for Justice (AAJ), CCL pointed out serious constitutional flaws implicating the right to trial by jury and the right of access to the courts in a proposed class settlement of in the Roundup multi-district litigation. The settlement would affect thousands of claimants who used the weed killer Roundup, which is alleged to cause non-Hodgkins lymphoma (NHL). The settlement would put nearly $2 billion up to settle claims, while the defendant, Monsanto, continues to sell the product.

     The settlement proposes allowing claimants who reject individual settlement offers to bring their cases before a jury, but truncates those trials by mandating certain evidence be admitted and limiting remedies. The brief points out that a so-called "advisory" science panel, which would delay cases brought by at least four years, provides inherently problematic evidence before the jury about the connection between Roundup and NHL that adversely affects the jury's role in judging the credibility of witnesses and the weight accorded to evidence. The Science Panel conclusion entered into evidence need not even be accurate to be beyond challenge, while all counter-evidence would be subject to all evidentiary challenges.

     The brief also argues that the proposed settlement would prohibit punitive damages in those jury trials, giving Monsanto a free pass to continue the egregious misconduct that potentially exposes it to those damages absent the settlement.

     A National Law Journal article published the same day as the AAJ amicus brief was filed, features the brief in describing the uproar that the proposed settlement generated within the trial bar.

VW Emissions Opt-Out Plaintiffs File Opening Brief

February 12th, 2021

     Seven sets of plaintiffs who opted out of two classwide settlements and tried their individual cases together filed their opening brief arguing fundamental errors in their cases that resulted in small-damage awards in most of the cases, and no liability in two cases. CCL was part of the legal team that drafted the brief.

     Riley v. Volkswagen of America grows out of a multi-year fraud in which Volkswagen used a "defeat device" to prevent government officials from realizing that the cars the company sold as "green" vehicles, with especially lowered emissions, actually spewed pollutants at 40 times the maximum level set by law. A program in the cars would adjust pollution levels to meet government requirements when a measuring rod was placed inside the tailpipe, giving a false reading of compliance. After the fraud was discovered, Volkswagen was subjected to a variety of criminal and civil penalties, and purchasers of the vehicles sued. Cases filed in federal courts across the country were consolidated for treatment in the U.S. District Court for the Northern District of California. Two class settlements came out of that courts, but a number of disaffected plaintiffs opted out of the settlements, seeking their own day in court on their complaints.

     The Riley plaintiffs were Californians who sought redress under the state's strong consumer protection laws. Under one, the Song-Beverly Act, the state's lemon law, the inability to fix a vehicle to meet the seller's promises results in damages that can be three times the sales price, plus attorney's fees. Judge Charles Breyer, presiding over the case, dismissed claims under the Act on the grounds that the vehicles were still operable, even if they did not meet the environmental standards that were promised and were the motivation for buying these particular cars. 

     In addition, the judge ruled against claims under the Consumer Legal Remedies Act, holding that the settlement offer was a "reasonable accommodation," which forgives potential liability for good-faith mistakes that are immediately corrected. He further held that claims for common-law fraud, which succeeded before the jury, only permitted meager damages for the difference in the vehicles' value with and without proper environmental controls, despite being illegal to sell as a new vehicle at the time of sale. Judge Breyer also reduced punitive damages of $25,000 per case assessed by the jury to a range of $2,328 to $12,532, a 4:1 ratio, even though larger ratio is constitutionally permissible when compensatory damages were small, as here.

    The brief details the errors made by the judge on these issues, as well as other evidentiary and procedural matters. Volkswagen's responsive brief is not expected until July.

CCL Has Banner Day with Oral Argument, Multiple Brief Filings

January 19th, 2021

      CCL President Robert S. Peck argued a Magnuson-Moss warranty case in the Seventh Circuit, contributed to a petition for certiorari in the Colorado Supreme Court filed today, had an amicus brief he wrote mentioned twice during oral argument in the U.S. Supreme Court, and wrote a brief in opposition to a motion to dismiss filed in Illinois circuit court today.

      In Ware v. Best Buy Stores, the Seventh Circuit will decide whether a Geek Squad Protection Plan (GSPP) is a warranty or a service contract. The Wares were looking to purchase a $3,000 state-of-the-art television set in 2013. When the salesperson and store manager warned them that it would likely only last a couple years and suggested they extend the manufacturer's warranty with a five-year GSPP, which would give them $300 off the TV and free delivery, it was enough to seal the deal. When the set went bad in 2017 after years of problems and became unfixable, Best Buy offered them a discounted voucher for a new TV, saying that what the Wares bought was a service plan, not a warranty, despite language in the document that made it a warranty. The district court dismissed the putative class action, finding that an FTC regulation that said the payment of additional consideration made the GSPP a service contract. In today's appeal in the U.S. Court of Appeals for the Seventh Circuit, Peck argued that Magnuson-Moss was designed to prevent consumer deception and that Best Buy had violated its provisions by multiple indicia that the bundled TV and plan was a single item that included a warranty. The court took the case under advisement.

      The Colorado Supreme Court filing came in a catastrophic medical-malpractice case, Smith v. Surgery Center, where the Court of Appeals took away a significant jury verdict because it said the ambulatory surgery center defendant could not have committed negligence because it was barred from practicing medicine by the corporate practice of medicine doctrine. The reply brief filed today argued that the jury held the center liable for its own negligence and that allowing the published opinion to stand without review would massively expand the doctrine to provide plenary immunity to the center regardless of what it did or what duties it assumed.

      The Supreme Court heard oral argument today in BP v. Mayor and City Council of Baltimore, concerning federal officer removal. Peck wrote an amicus brief on behalf of state and local government groups that, among other things, emphasized that BP's position would allow lawyers to manipulate the system to file interlocutory appeals that Congress had denied authority for. In response to a question from Justice Kagan, Victor Sher, representing Baltimore, invoked the CCL amicus brief. Later, the same amicus brief provided another answer.

     Finally, Peck wrote and filed an opposition to a motion to dismiss in a COVID-19 related nursing home case, Leja v. Bridgeview, in an Illinois state circuit court.

CCL Files Amicus Brief for State and Local Government Groups in Supreme Court

December 22nd, 2020

     CCL filed a amicus curiae brief in the U.S. Supreme Court on behalf of state and local government groups, arguing that appeal from a remand order that rejects removal on federal-officer grounds, when other removal grounds was also asserted, is limited to that one issue. 

     In addressing this technical civil procedure issue, CCL's brief argued that the removal statute's text, Congress's intent, congressional ratification of prior court precedent, and legislative history all support affirming the decision rendered by the Fourth Circuit in this case, BP Plc v. Mayor and City of Baltimore, No. 19-1189. Federalism principles further support the reading advanced by CCL's brief, because Congress would only abrogate state court authority through the most explicit statutory direction, as past Supreme Court decisions have required. 

     The brief also defends the capability and impartiality of state courts when confronted with issues of this kind. Furthermore, it argues that BP's myopic focus on the word "order" in the statute as authorizing an appeal of all grounds rejected by a district court in a single ruling takes the word out of context. It cites the late Justice Scalia's book on interpretation to explain that a good "textualist" is neither a literalist nor a nihilist, but that BP's approach would make the Court both. 

      Baltimore, like a number of states and local governments, brought what are largely public nuisance actions under state law in state court, seeking relief from oil companies for their contributions to climate change. BP and the other oil company defendants tried to remove the case from state court to federal court, claiming that its responsibility for climate change was a function of following the federal government's directions and making them the equivalent of a federal officer, who has a right to have any case against that officer heard in federal court. BP does not really defend that ground, but uses it as a basis to bring its other grounds as a basis for appeal. Federal law does not allow the other bases to be grounds for being in federal court. CCL argues that this misuse of federal-officer removal is a matter of gamesmanship. Any competent lawyer would make the allegation in order to obtain appellate rights for more serious arguments.

     In the amicus brief, CCL represents the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.