News

      A brief written by CCL told the Illinois Appellate Court that the Attorney General's invited brief, which denies immunity to a nursing home defendant in six cases where it did not undertake any special efforts to render assistance to the State, provides an authoritative rendering of the Governor's intent when he issued an executive order responding to the COVID-19 health crisis.

     In responding to the brief, the nursing home claimed that the Attorney General had improperly taken sides and that his interpretation misread the order's plain language. The CCL brief countered that reading, explaining that it not only made sense, but reflected the obvious and clearly expressed intent behind the order. Any other interpretation, CCL argued, raised profound constitutional separation of powers issues that should be avoided.

     The court is expected to issue its decision on whether the nursing home is entitled to immunity without further hearing.

      CCL told the Massachusetts Supreme Judicial Court that its courts have personal jurisdiction over FCA, the successor to old Chrysler, in a case where one of its vehicles failed to protect a passenger after it rolled over in New Hampshire, in an amicus curiae brief filed on behalf of the American Association for Justice and the Massachusetts Association of Trial Lawyers. 

      The plaintiff originally filed the case in New Hampshire state court, but FCA successfully removed it to federal court and won dismissal of the case on personal jurisdiction grounds because the car had been sold in Massachusetts before it was bought used by the current owner in New Hampshire. After that decision, the U.S. Supreme Court issued a ruling that made the ruling erroneous, permitting the case to be brought in the state where the injury occurred as long as the defendant did substantial business there. While that case was pending, the plaintiff re-filed their lawsuit in Massachusetts, where it now claims that Massachusetts is the wrong jurisdiction to exercise authority over it and that New Hampshire would have been suitable. 

       Although the CCL brief supported the plaintiff's argument that there is nothing that prevents Massachusetts from issuing a decision binding on FCA, it added a new argument that FCA is judicially estopped and constructively consented to jurisdiction by its actions pointing to Massachusetts in opposing a hearing in New Hampshire. Subsequently, at the oral argument in the case, the justices asked about this argument, showing that it was an effective issue to raise in the CCL-drafted brief.

     In separate amicus briefs filed in the U.S. Supreme Court, a group of prominent civil procedure law professors and the Association of Transportation Law Professionals urged the Supreme Court to grant CCL's petition for a writ of certiorari in Douglass v. NYK Line. 

     The case raises an important and unanswered question about personal jurisdiction when Federal Rule of Civil Procedure 4(k)(2) is raised, as well as under admiralty law. The case arose from a collision of a container ship with the U.S.S. Fitzgerald, a destroyer, in Japanese territorial waters, that resulted in the death of seven U.S. sailors and injuries to more than 40 others. 

     The U.S. Court of Appeals for the Fifth Circuit, hearing the case en banc, ruled 12-5 that the case could not be heard in the United States. CCL has argued that the ruling effectively renders Rule 4(k)(2), promulgated at the request of the Supreme Court and approved by Congress, unconstitutional, while also turning the courts' back on traditional admiralty jurisdiction.

     NYK Line, the defendant, will file a brief in opposition to certiorari in 30 days, after which CCL is entitled to file a reply brief, before the Supreme Court votes on the case.

     Working with the Susman Godfrey law firm, CCL today filed a brief in support of remand of the City of Sacramento's opioids lawsuit to state court. The case had been removed from state court to federal court by Walgreens and then consolidated into the massive federal Multi-District Litigation (MDL) case being heard in federal court in Ohio. There, it languished, along with its motion to remand.

      Under instructions from the Sixth Circuit, the federal court began the process of selecting small groups of cases for briefing on whether the case belonged in federal or state court. The defendants filed their brief last month, which argued that the case inevitably raises federal issues and belongs in federal court. Sacramento, for all the government entities in its group, argued that it only raised state causes of action and that no federal issues are implicated by its pleading. The decision on remand now goes to Judge Polster, who is presiding over the MDL.

     Acting as a Special State's Attorney for Cook County, CCL President Robert S. Peck argued that the Seventh Circuit should return the county's case against Bank of America to the district court, correcting a number of errors that resulted in dismissal of the action.

      Peck asserted that the dismissal of the county's experts as utilizing unproven methodologies failed to appreciate the validity of the analysis both experts had undertaken and their widespread use, instead of rendering an opinion on how believable the experts' conclusions were. For example, one expert used a government-approved methodology that even the bank's experts recognized. However, the district court focused erroneously on the expert's unique terminology rather than his valid form of analysis. 

      In response to questions from the judges on why the count failed the proximate cause test, Peck explained that proximate cause was not a one-size-fits-all test, but a statute-specific requirement that must reflect the values that Congress intended, as repeated decisions of the Supreme Court, including a case he argued there (Bank of America Corp. v. City of Miami) have held. He argued that the Ninth Circuit in a case brought by Oakland, misunderstood those holdings and suggested the the Seventh Circuit follow the Eleventh Circuit's persuasive analysis in the Miami case instead.

     The case, County of Cook v. Bank of America, seeks compensation and injunctive relief over the bank's discriminatory mortgage lending practices that resulted in loss of tax revenues and administrative costs to the county. The Court took the case under advisement.

     In a brief filed opposing the Defendants' motion to continue the upcoming trial date in In re Behr Thermal Products, CCL told the trial judge that it should not credit the Defendants' eleventh-hour claim that they are baffled about what common issues would be tried to the jury and which withheld for individual trials before different juries.

     CCL explained that the Defendants had litigated those issues repeatedly in the federal district court and in the Sixth Circuit. CCL reemphasized its oral argument earlier in the week, demonstrating that no Seventh Amendment issues remain and that the trial date set long ago should not pose sudden issues about preparing in time that the Defendants now raise. 

     CCL was brought into the case by Plaintiffs' counsel for the Seventh Amendment issue. CCL President Robert S. Peck wrote the brief filed today and made the earlier oral argument.

     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.

    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.

     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. 

     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.