News

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. 

Arkansas Newspaper Reports on CCL 8th Circuit Victory

July 3rd, 2018

     The Arkansas Democrat-Gazette had an extensive report on CCL's victory before the Eighth Circuit, which resulted in an order to the District Court to dismiss a state trial court judge's lawsuit against justices of the Arkansas Supreme Court over an order of recusal.

     The article quotes, CCL President Robert S. Peck, who represented the justices, as well as the Arkansas Supreme Court itself before it was dismissed from the case, as saying that the ruling confirms that the courts and due process protections in litigation exist for the parties in litigation, not for the judges, who cannot override the litigant's constitutional rights in the name of their own interests.

Eighth Circuit Orders Case Against Arkansas Supreme Court Justices Dismissed

July 2nd, 2018

     Based on a writ of mandamus filed by CCL President Robert S. Peck, the U.S. Court of Appeals for the Eighth Circuit ordered a federal district court to dismiss all claims against justices of the Arkansas Supreme Court in a case filed by a state trial judge challenging an order of recusal.

     Judge Wendell Griffen sued the Arkansas Supreme Court and its justices, claiming that they violated his federal civil rights when they ordered him recused after he had participated in public protests concerning issues in the case and had written blog posts about the issues. Federal District Court Judge James Moody Jr. dismissed the Arkansas Supreme Court as a party on sovereign immunity grounds, but permitted the claims against each of the justices to go forward as at least plausible. 

    Today's ruling said that none of the claims met the plausibility standard because recusal does not exact any harm against a judge, accepting the argument Peck made along with counsel for the other justices. Peck represented Chief Justice John Dan Kemp and Justices Robin Wynne and Shawn Womack in the Eighth Circuit.

Peck Argues Sacramento Satisfies Proximate Cause in FHA Lawsuit Against Wells Fargo

June 29th, 2018

     Arguing against a motion to dismiss, CCL President Robert S. Peck, representing the City of Sacramento, argued that the city's complaint met the Fair Housing Act's proximate cause standard to maintain its lawsuit for damages relating to lost property taxes, remediation expenses, and neutralized fair housing expenditures against banking giant Wells Fargo.

      Peck pointed out that the Supreme Court has instructed courts to focus on a statute's legislative history to determine the contours of the proximate cause requirement. That legislative history demonstrates that Congress was specifically concerned about the impact of discriminatory housing practices on municipal finances. In 1988 amendments, Congress endorsed a 1972 Supreme Court case, Gladstone, Realtors v. Village of Bellwood, in which the court upheld the validity of a municipality's lawsuit for lost property taxes as a direct injury. Peck argued that this legislative history informs the proximate cause analysis and makes the city's injuries integral to the statutory cause of action.

     U.S. District Court Judge Kimberly Mueller took the case under advisement.

Supplemental Authority filed in Eleventh Circuit Remand of Bank of America v. City of Miami

June 22nd, 2018

     On June 22, 2018, CCL filed the decision in City of Oakland v. Wells Fargo Bank, NA, as supplemental authority in the U.S. Court of Appeals for the Eleventh Circuit, which is considering the remanded issue of proximate cause from last year's decision in Bank of America Corp. v. City of Miami. CCL's Robert S. Peck argued the case in the Supreme Court and the proximate cause issue in the Oakland case.

     In last year's decision, the Supreme Court held that Miami had standing to bring claims under the Fair Housing Act for lost property taxes, remediation expenses, and fair housing expenditures, but left open the issue of whether the complaint met the FHA's proximate cause requirement. It asked lower courts to decide, in the first instance, the contours of that requirement. Since then, Peck has argued the issue in cases brought against Wells Fargo in Philadelphia and Oakland. Both federal district courts denied the bank's motion to dismiss on proximate cause grounds. In the Philadelphia case, Wells Fargo sought permission to bring an interlocutory appeal, which Peck opposed. The district court denied permission.

      On June 29th, another federal district court will hear the same issue in a case brought by the City of Sacramento against Wells Fargo. Once again, Peck will argue the issue.

Federal Court Denies Wells Fargo Motion to Dismiss in Fair Housing Case

June 15th, 2018

     In City of Oakland v. Wells Fargo & Co., federal district court judge Edward Chen denied Wells Fargo's motion to dismiss the City of Oakland's fair housing complaint against the banking giant for a pattern of discrimination in mortgage loans given to minority home buyers. CCL President Robert S. Peck represented Oakland in the argument last December and wrote the principle section of the brief.

     Oakland raised similar allegations against Wells Fargo as did Miami, also represented by Peck in the U.S. Supreme Court last term. In Bank of America v. City of Miami, the Supreme Court held, 5-3, that cities have standing to bring fair housing actions for lost property taxes, remediation expenses, and depletion of its fair housing resources, but asked the lower courts to determine, in the first instance, the contours of the Fair Housing Act's proximate cause requirement at the pleading stage. The Miami case was returned to the Eleventh Circuit for that determination and received simultaneous briefing from the parties (Miami, Bank of America and Wells Fargo) on April 30.

     In the Oakland case, Judge Chen held that the city had sufficiently pleaded a direct connection between its lost property taxes and the Bank's allegedly discriminatory practices. He also found the city's claim for injunctive relieve satisfied the relevant proximate cause standard. Its claim for damages for its monetary expenditures was dismissed without prejudice so that it could be re-pleaded to specify the expenditures attributable to Wells Fargo. The court also dismissed without prejudice for re-filing the city's claim for harm to its goal and programs advancing fair housing. 

    When the Supreme Court handed down its decision last term, both sides claimed victory. To date, CCL has prevailed on the proximate cause issue in each of the cases in which it represents a city bringing a fair housing case.

District Court Stays Discovery Pending Mandamus Petition

May 16th, 2018

     Within a couple of hours of the filing of opposing counsel's brief, U.S. District Court Judge James Moody, Jr. issued an order staying discovery in Griffen v. The Supreme Court of Arkansas, pending a decision by the Eighth Circuit on CCL's petition for a writ of mandamus.

     Arkansas trial judge Wendell Griffen challenged his permanent recusal in death penalty cases after blogging and participating in two public protests on the issue and during part of which a case was pending before him. Upon an emergency petition filed by the state attorney general, the Arkansas Supreme Court issued the recusal order. The pending case was reassigned and the succeeding judge issued an order similar to the one Judge Griffen originally signed prior to his recusal.

    Judge Griffen filed a federal challenge to his recusal, naming the state supreme court and each of its justices as defendants. CCL represents the court, its chief justice, and two of the other justices. In response to motions to dismiss, federal judge Moody dismissed the Arkansas Supreme Court from the action, but permitted the case to continue against the individual justices. On behalf of all justices, CCL filed a petition for a writ of mandamus in the U.S. Court of Appeals for the Eighth Circuit. The Eighth Circuit ordered a response from Judge Griffen, and CCL filed a reply brief earlier this week.

     CCL also moved for a stay of discovery during the pendency of the mandamus petition. It was that motion Judge Moody granted Wednesday.