News

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 Joins Representation of Cook County in FHA Lawsuit against Bank of America

August 30th, 2022

    In a reply brief filed in the Seventh Circuit, CCL joined the legal team for Cook County in arguing that the federal district court erroneously excluded the county's expert witnesses, held that the county could not meet the Fair Housing Act's proximate cause requirement for its injuries, and that Bank of America should receive summary judgment in its favor in this nearly decade-long case.

     Cook County filed this case in 2014, alleging that the Bank intentionally and with a disparate impact provided minority neighborhoods with toxic mortgages that were likely to lead to foreclosure even when the borrowers qualified for better mortgages so that the Bank stripped the borrowers of the equity they had in their homes and foreclosed on them in violation of the FHA's anti-discrimination requirements. 

      Cook County appealed the ruling against them, arguing that the judge made fundamental errors in her decision. Bank of America's brief then signaled its agreement with the judge. CCL President Robert Peck was added to the legal team representing the county and contributed to the reply brief filed today. In it, CCL's contribution concentrated on the history and text of the FHA to demonstrate that the County fit within its protective purposes, as the Supreme Court had recognized, and that the expert evidence proffered met the standard the Supreme Court had set out, demonstrating an acceptable methodology used the federal government itself.

      The case now awaits an oral argument date, where Peck will make the argument. Previously, Peck prevailed on similar issues on behalf of the City of Miami in a 2017 Supreme Court case against both Bank of America and Wells Fargo.

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

Federal Appellate Courts Continue to Hold that City and State Climate Change Cases Belong in State Court

July 7th, 2022

     In decisions issued today, the First and Ninth Circuits continued to adhere to prior decisions that held that no federal issue justified removal of state and municipal climate-change cases to federal court and holding that the cases should be returned to state court.

      The new decisions involved cases brought respectively by the state of Rhode Island and the city and county of Honolulu. In the Rhode Island case, the First Circuit denied the defendant oil companies' motion for rehearing, finding no reason to reconsider its decision from earlier this year. In the Honolulu case, a new panel heard the oil companies' arguments and found the case belonged in state court. Earlier Ninth Circuit panels had made similar rulings in cases brought by various California counties and cities.

      In both cases decided today, CCL filed amicus curiae briefs urging the result issued by the courts on behalf of the National League of Cities, the U.S. Conference of Mayors, and thee International Municipal Lawyers Association.

Supreme Court Rules Out Emotional Distress Damages in Rehabilitation Act Case

April 28th, 2022

     In Cummings v. Premier Rehab Keller, the U.S. Supreme Court ruled that emotional distress damages, the only damages available to the plaintiff, were unavailable because such damages are rare in contract cases. In the case, a legally blind and deaf person was refused an American Sign Language interpreter at a physical therapy facility that accepted federal funding under the Rehabilitation Act and the Affordable Care Act. In accepting the funds, the facility pledged not to discriminate against any potential clients.

      The Supreme Court's ruling did not deny that the plaintiff suffered from illegal discrimination, but held that damages to compensate for emotional distress were not available. CCL filed an amicus brief in support of the plaintiff, making two points. The first argued that discrimination inherently involves emotional distress because it belittles the person as being less acceptable than others. That point was taken up by Justice Stephen Breyer in a dissent joined by Justices Sonia Sotomayor and Elena Kagan. CCL's second point is that courts that have belittled juries' ability to assess proper emotional distress damages err, because empirical studies continuously demonstrate that juries are well-suited to assess such damages. This point apparently succeeded with the Court, as the opinions did not take the bait offered by some advocates on the uncertainty of emotional distress damages.

CCL Files Amicus Brief in Support of Delaware Jurisdictional Argument

April 21st, 2022

     In another case of government seeking compensation for Big Oil's misrepresentations about the impact of fossil fuels and its impact on sea levels and crumbling infrastructure, this time brought by the State of Delaware, the Third Circuit will determine whether the case belongs in state or federal court. CCL filed an amicus brief in support of the state's position on behalf of the National League of Cities and the U.S. Conference of Mayors.

     The briefing follows two decisions within the past week by the Fourth and Ninth Circuits, respectively, supporting Delaware's position. In its amicus brief, CCL argued that states and local government, just like any other plaintiff, have a right to choose the causes of action they seek to pursue and keep a case in state court by virtue of those choices. It further argued that federalism principles support the right of state and local governments to pursue compensation for injuries suffered from large, multinational corporations.

       The oil company defendants will have an opportunity to reply to the state's arguments, as well as its supporting amici, before setting the case for oral argument.

Ninth Circuit Holds Counties' Climate Change Case Belongs in State Court

April 19th, 2022

     Ruling just days after the Fourth Circuit held that Baltimore's lawsuit against Big Oil should return to state court, the Ninth Circuit similarly held that lawsuits brought by three California counties and one city belong in state court. CCL filed an amicus brief in the case supporting that result on behalf of U.S. Senator Sheldon Whitehouse.

      The ruling rejected various claims the oil companies' made that the lawsuit, framed in state law terms, actually asserted various federal causes of action that should be heard in federal court. In joining the Fourth Circuit and a prior similar ruling by the Tenth Circuit, the federal appellate court based in California agreed with its sister circuits that none of the claimed federal causes of action applied. 

       The amicus brief filed by CCL argued that the defendants' claims of federal jurisdiction were invalid, in part, because they had heavily and successfully lobbied against federal laws that might apply to climate change.

        The Baltimore case had returned to the Fourth Circuit after the U.S. Supreme Court had ruled that the court had failed to address all the bases for federal jurisdiction asserted by Big Oil, based on its faulty understanding of a law that permitted interlocutory appeals of all bases for a remand order. The defendants are expected to seek further review in the Supreme Court of the new orders from various federal courts of appeals.

Fourth Circuit Orders Return of Baltimore Climate-Change Case to State Court

April 6th, 2022

     In a unanimous 93-page decision, the U.S. Court of Appeals for the Fourth Circuit ordered the return of Baltimore's climate-change case against Big Oil to state court. CCL filed an amicus brief in support of Baltimore on behalf of the National League of Cities, U.S. Conference of Mayors, and the International Municipal Lawyers Association.

      Baltimore sued oil companies for misrepresenting the environmental impact of fossil fuels, which has resulted in damage to the city's infrastructure. Seeking compensation for the damage, Baltimore filed suit under various state law causes of action in state court. The oil companies removed the case to federal court, claiming that the case actually sounds in federal law. When the district court ordered the case remanded to state court, the oil companies appealed, relying on a federal statute that permits interlocutory appeals when a defendant claims to be acting as a federal officer. The Fourth Circuit affirmed the district court's decision, finding that the oil companies were not federal agents, but the Supreme Court subsequently held that the Fourth Circuit also needed to address the oil companies' other grounds for removal. 

     Today's decision undertook that analysis and held that no grounds existed that would require submission of the case federal jurisdiction. The holding maintains a consistent position from federal courts of appeal that these types of cases are not federal in character.

CCL Argues Federal Tolling Provision Controls Over State Law

March 9th, 2022

     Before a state trial court in Chicago, CCL President Robert S. Peck argued that the Illinois two-filing rule had to yield to the federal supplemental jurisdiction statute because of the Constitution's Supremacy Clause. 

      In the underlying case, a husband and wife sued Best Buy when the store refused to provide satisfaction on a expensive plasma television set that could not be repaired or replaced under the Geek Squad Protection Plan (GSPP) they purchased as an extended warranty for the television set. Best Buy contends that the GSPP is merely a service plan that allows them to replace the television set for one of similar quality, even though its value is a fraction of the set they originally purchased. Best Buy sold the GSPP to them characterizing it as an extended warranty and advertises the plan as a warranty. The purchasers made their claims under the Magnuson-Moss Warranty Act, which prevents manufacturers and sellers from denying an implied warranty, even if not phrased that way. 

      The prime issue before the court was the statute of limitations. The family, the Wares, originally filed their action in federal court in Florida against Best Buy and Samsung. When the court found it lacked personal jurisdiction, the couple filed in federal court in Illinois, which held that the GSPP was not a warranty. On appeal, the Seventh Circuit independently raised a question of subject-matter jurisdiction after briefing and argument on the warranty issue. Because Magnuson-Moss requires 100 named plaintiffs for the case to be heard in federal court, but only one plaintiff to file the same action in state court, Peck asked the Seventh Circuit to vacate the district court decision and order the case dismissed without prejudice so it can be refiled in state court under the federal supplemental jurisdiction statute. The Seventh Circuit found that the suggestion was the correct one and followed Peck's suggestion.

     One refiled within 30 days in state court in compliance with 28 U.S.C. 1367, Best Buy, the only remaining defendant, moved to dismiss, arguing that the Wares needed to plead supplemental jurisdiction and that Illinois's one-re-file rule prevented the court from entertaining the case. Peck argued that precedent, including one from the Sixth Circuit, held that supplemental jurisdiction need not be pleaded. In addition, under Jinks v. Richland County, which Peck argued in the Supreme Court, state law cannot interpose a bar to the realization of Congress's determination that state law is tolled while a qualifying case is in federal court and for another 30 days afterwards when dismissed without prejudice. 

     Co-counsel Kyla Lemieux argued the other issues. The case was taken under advisement.

Peck Argues Sovereign Immunity Issue in Florida Appeals Court

March 8th, 2022

     CCL President Robert S. Peck urged a Florida appeals court to affirm a trial court's ruling that the University of Florida and its board do not receive sovereign immunity when it overcharged prospective students for their college applications and subsequent orientation.

      The case, a putative class action, relied on a Florida statute that set the maximum fees that state universities can charge for applications at five dollars and for orientation of accepted students at thirty dollars. Without seeking legislative permission to charge more, the University of Florida passed along a vendor's additional five-dollar fee to applicants, while charging seventy-five dollars for orientation. The plaintiffs sued on theories of conversion and negligent misrepresentation. A trial court denied the university's motion to dismiss based on sovereign immunity, and the defendants then appealed.

      During oral argument, one judge pressed the issue of whether the statutory waiver of immunity's reference to "loss of property" could include money collected by an illegal overcharge. That appeared to be the primary issue for the Court. Peck responded by explaining a wide variety of precedents where money was treated as property. The case is now under advisement, with a decision expected sometime in the next few months.