News

Sacramento Seeks Return to State Court in Opioids Case

October 28th, 2022

     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.

     

CCL Argues District Court Erred in Dismissing County's Experts, Dismissing Fair Housing Case

October 27th, 2022

     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.

CCL Opposes Trial Continuance

October 4th, 2022

     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.

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.