CCL Files Amicus Brief in Climate Change Litigation for Six U.S. Senators

March 20th, 2019

     CCL filed an amicus brief today on behalf of six U.S. Senators in the climate change litigation brought by Oakland and San Francisco against a number of major oil companies. The case is pending in the U.S. Court of Appeals for the Ninth Circuit, after a federal district court dismissed the litigation based on a determination that the issue requires resolution in the U.S. Congress.

     Senators Sheldon Whitehouse (D-RI), Dianne Feinstein (D-CA), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Edward Markey (D-MA), and Kamala Harris (D-CA) argue in the brief that the defendant companies' argument that climate change should be addressed but by the Congress or Executive Branch is disingenuous because the companies have a long history of opposing action by the legislature or by federal agencies and use their political clout against against action on the issue or candidates favoring action. The brief details the myriad ways that the defendants have impeded progress on this incredibly important issue and urges the court to treat the defendants' pleas for a different forum as pretextual and an attempt to assure that no forum confronts the issue.

     The brief also points out that federal courts have a "virtually unflagging obligation" to exercise the jurisdiction given them under a 1976 Supreme Court precedent, Colorado River Water Conservation Dist. v. United States. Moreover, the cities have claimed a real injury proximately caused by the defendants that will not be otherwise remedied without a court's willingness to hear their case.

     The Ninth Circuit is expected to hear oral argument in the dispute later this year.


CCL Files Amicus Brief for Senator Whitehouse in Climate Change Litigation

January 29th, 2019

   Today, CCL filed an amicus brief for Senator Sheldon Whitehouse (D-RI) in the Ninth Circuit appeal of several California counties and a municipality seeking to hold several oil companies liable for the impact that climate change has had on their communities. 

   The Whitehouse amicus brief specifically responds to a brief previously filed in support of the defendants by the U.S. Chamber of Commerce. The Chamber, claiming to be steadfast in its support for a response to climate change, urged the Ninth Circuit to reverse the District Court and treat the issue as a political question more appropriate to being addressed in the executive and legislative branches. Today's filing points out that the Chamber has consistently opposed climate change policies in the two other branches of government and suggests that the Chamber's amicus brief be discounted because its funding sources are not transparent.

CCL Defends Jury Award in Products Liability Case Against Fiat Chrysler

December 12th, 2018

     As part of the team representing the plaintiffs, CCL filed a brief opposing Fiat Chrysler's motion to overturn a jury verdict against them over a vehicle that violated California's lemon law. The jury awarded the cost of the vehicle and $500,000 in punitive damages.

     The trial had centered on the failure of the car's TIPM module, which delivers electricity throughout the car. Its failure, a persistent problem that Chrysler vehicles suffered over a number of years, resulted in the car failing to start or stalling out. The record showed that, although Fiat Chrysler knew about the problem before the family bought the vehicle in question, it failed to warn consumers about the problem.

     Fiat Chrysler argued in its motion that the evidence was insufficient for a jury to find liability and support punitive damages. The brief supports the verdict by demonstrating that ample evidence to support the verdict and that the punitive damages do not violate due process.

CCL's Peck Argues Section 1983 Case

November 9th, 2018

     CCL President Robert S. Peck urged the Eleventh Circuit to reverse a decision dismissing a civil rights case brought against a Georgia state prosecutor by a person imprisoned for seven years before being exonerated by DNA evidence through the Innocence Project.

     Douglas Echols lost his military pension and family, and suffered repeated assaults in prison after being convicted of kidnapping and rape. He maintained from the beginning that he was a victim of mistaken identity. The Innocence Project obtained permission to test his DNA and brought forth evidence that supported Echols's claim. The state crime lab confirmed the results. A state court then determined that Echols could not have been convicted if the evidence and the prosecutor entered a nolle prosequi, guaranteeing that the state would not indict him again.

     The Georgia legislature, after the state claims advisory board twice unanimously recommended that he be compensated at the level of $1.6 million, took up a bill that would have provided Echols with that compensation for his wrongful conviction. However, the original prosecutor in his case wrote legislators that Echols was guilty and that he was still under indictment, which was palpably and knowingly false. The legislators dropped the bill. 

     Echols sued the prosecutor for interferring with his right to petition, retaliating against his pursuit of his First Amendment rights, and undermining the obligatory  and constitutionally protected presumption of innocence that he had won back in violation of substantive due process. After sitting on the case for nine years, and only after being ordered by a writ of mandamus to decide the matter, the U.S. District Court judge dismissed the case, finding that Echols had no rights and that the prosecutor was immune from suit.

     Before the U.S. Court of Appeals for the Eleventh Circuit, Peck argued the District Court was wrong on all counts. Contrary to the judge's holding, the letter violated rights a prosecutor should have understood by putting forth false information intended to interfere with and burden Echols's petition right, that the presumption of innocence applies to compensatory claims as the U.S. Supreme Court held in 2017, and that the assertion that Echols was still under indictment amounted to the type of intimidation that courts universally find actionable. For those and other reasons, immunity did not apply to the prosecutor.

     The case is now submitted and under advisement.

CCL Files Writ on Behalf of Arkansas Supreme Court Justices

October 18th, 2018

    In a writ filed on behalf of five justices of the Arkansas Supreme Court, CCL asked that Court to order the dismissal of formal ethical charges filed by a panel of the Arkansas Judicial Discipline and Disability Commission (JDDP) against all members of the Supreme Court. The writ, filed in the Supreme Court, which has supervisory responsibility over the Commission and all state courts, asserts that the Commission lacked jurisdiction over the decision by the Court to order Judge Wendell Griffen recused from all cases involving capital punishment. Because of their own conflict of interest, all members of the Supreme Court have recused themselves in this action. Temporary justices will be appointed by Arkansas Governor Asa Hutchinson.

    Judge Griffen filed the complaint against the justices, claiming that they violated his due process rights in issuing their recusal order and not providing him with sufficient time to respond. The U.S. Court of Appeals for the Eighth Circuit had ordered Judge Griffen's federal case against the supreme court and its justices dismissed, holding that no due process rights were violated and that Judge Griffen does not have a right to preside over any particular case or category of cases. The JDDP charges come to a different conclusion, but fail to identify a rule of judicial conduct that the justices might have violated. The JDDP's own rules indicate that, absent fraud, corrupt motive, or bad faith, the JDDP has no jurisdiction over legal decisions made by a judge -- and the recusal order was made in response to a motion in a pending case.

CCL Files Third Circuit Amicus Brief in Asbestos Litigation

September 28th, 2018

     In an amicus brief filed on behalf of the American Association for Justice, CCL argued that Honeywell and Ford Motor Company had no basis to seek reversal of a federal district court that denied them access to personal information in asbestos filings to which they were not a party.

    The case, In re ACandS, Inc., is pending before the U.S. Court of Appeals for the Third Circuit and involves a challenge to a court order that denied the companies access to tens of thousands of asbestos claimant filings so that they may be examined for possible fraud, even though the companies were not parties to the claims. The companies wanted to use the information, which was not part of the public record, for lobbying purposes. Yet, the only allegations of fraud the companies used to support their claim of access were generalized self-serving statements from asbestos defendants and their lawyers, rather proffer than any objective basis for the claim. Instead, the AAJ brief showed why those statements were based on a purposely skewed understanding of claims made to asbestos trusts and the nature of asbestos litigation. 

     The AAJ brief also rebutted the companies' construction of the bankruptcy statute, which provided no right to non-public information, as well as their attempt to claim a First Amendment basis for access to the information.

CCL Opposes Interlocutory Review in 9th Circuit

September 27th, 2018

     Representing the City of Oakland, California, CCL today filed a brief in opposition to a petition for interlocutory review in the Ninth Circuit, filed by Wells Fargo & Co.

     In June, the U.S. District Court for the Northern District of California denied Wells Fargo's motion to dismiss Oakland Fair Housing Act lawsuit against the bank, a motion argued by CCL's Robert S. Peck, along with co-counsel Joel Liberson. Arguing that courts could differ on the issue, Wells Fargo successfully sought certification of the issue from the District Court so that it could petition the Ninth Circuit for early appellate review. Wells Fargo filed its petition September 17.

     In its brief opposing the petition, CCL argued that the case did not qualify for the extraordinary step of an early appeal because any decision by the appeals court was not likely to be determinative of the litigation. Besides, CCL said, the issue that Wells Fargo identified, the level of proximate cause required in an FHA action, is currently pending in the Eleventh Circuit and in the U.S. District Court for the Eastern District of California in a case brought by the City of Sacramento. For that reason, CCL suggested the Ninth Circuit should allow the issue to percolate in other courts and take it up only in the normal course of litigation.

     CCL also represents Sacramento, as well as Miami, which brought the action pending in the Eleventh Circuit. 

CCL Files Opening Brief in FHA Case

September 25th, 2018

    Arguing that the trial judge misunderstood the evidence and applied the wrong legal standard, CCL filed its opening brief in the U.S. Court of Appeals for the Eleventh Circuit on behalf of the City of Miami Gardens in its fair housing case against Wells Fargo & Co. 

    The case, filed in 2014, alleges that Wells Fargo targeted minority borrowers for more expensive or riskier loans than it offered non-minority borrowers in the municipality beginning in 2004. Several cities around the country have filed similar actions against the bank. The trial court granted the bank's motion for summary judgment, ruling that the city could not demonstrate that the bank had engaged in an FHA violation within the two years preceding the complaint, finding that the two instances identified by the city's expert was not enough. 

    Yet, U.S. Supreme Court precedent holds that a single incident during that period was sufficient to meet the statute of limitations and to apply the continuing violations doctrine. The error was compounded by the court using a summary judgment motion to weigh the evidence and the credibility of the competing experts, a task that is supposed to be performed by the jury. The judge also unreasonably limited discovery to a 31-day period of time and to a scope that violated other precedents, the CCL brief argues. 

    Wells Fargo is expected to file its responsive brief within 30 days.

CCL Writes Response to Wells Fargo Request for Appellate Certification

July 27th, 2018

     After a federal district court in San Francisco held that statistical evidence can satisfy the proximate cause requirement for a Federal Housing Act pleading and Wells Fargo moved to certify the question to the Ninth Circuit for immediate appellate review, CCL drafted and filed a brief in opposition to the motion.

     In City of Oakland v. Wells Fargo & Co., U.S. District Court Judge Edward Chen held that the proximate cause standard mandated by the FHA could be met by statistical analysis, as Oakland put in parts of its complaint and could, with an amended complaint, attempt to meet for other claims. Wells Fargo, which insists that proximate cause can never be met, filed a motion, asking the court to certify the question for immediate appeal.

    In response, CCL argued that Wells Fargo's motion failed to meet the criteria required by statute for a case to depart from the usual course of appeal only after final judgment. The matter is now under advisement.

CCL Files Eleventh Circuit Appeal for Miami Gardens Lawsuit Against Wells Fargo

July 25th, 2018

    CCL has filed an appeal on behalf of the City of Miami Gardens in their case against Wells Fargo & Co., alleging the bank had engaged in a continuous pattern of discriminatory lending in violation of the Fair Housing Act.

   Miami Gardens filed the case in 2014. It had been put on hold for a period of time while the U.S. Supreme Court decided whether cities have standing to bring these FHA actions, a case argued successfully by CCL's Robert S. Peck. 

   In granting summary judgment for Wells Fargo, the District Court found the bank's expert more credible than the City's expert, but also appeared to misunderstand the data presented. Summary judgment is supposed to be available to a party only when facts are not in dispute. When expert evidence is in conflict, summary judgment is normally denied so that a jury can evaluate the credibility and weight of the evidence. The judge shortchanged that process, according to CCL's presentation of the issues in the civil appeal statement.