News

CCL Files Local Government Groups' Amicus Brief in First Circuit

September 3rd, 2021

     CCL President wrote and filed a brief arguing that no conception of federal common law justified removal of the State of Rhode Island's case against major oil producers for the in-state consequences of their misrepresentations about fossil fuels. The State had sued the companies on grounds of misrepresentations in state court on state causes of action, but the defendants had removed the case to federal court.

     In this second visit to the First Circuit, which originally held that the oil companies had no claim to federal jurisdiction by asserting that they had done what they were accused of at the direction of the federal government, the appellate court is reviewing other claimed bases for federal-court jurisdiction. This time around, the defendants rely heavily on a claim that because climate change is a global issue, it requires the courts to apply federal common law, rather than state law.

     The amicus brief filed today on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, argued that whatever federal common law may have once existed was displaced by the Clean Air Act, which gives the states a role in combating the local effects of air pollution. States, it further argues, have a right to bring state causes of action in state court, just as any other plaintiff does, subject to the defendants' claims of ordinary preemption, which provides no right to remove a case to federal court.

CCL Urges Supreme Court to Revive Civil Rights Lawsuit

August 26th, 2021

     CCL urged the Supreme Court to revive a civil-rights lawsuit filed on behalf of a disabled person that had been dismissed because the plaintiff only suffered emotional-distress damages. CCL's amicus brief was filed on behalf of the American Association for Justice in Cummings v. Premier Rehab Keller, which the Court will take up in the coming term.

     Under the Rehabilitation Act, recipients of federal funds are obligated not to discriminate against persons with disabilities. In this case, a woman who needed a sign language interpreter sought physical therapy from the defendant, a recipient of federal funding, but was turned away because of the request for an interpreter. She tried going to another physical therapy provider, but found it ineffective. The defendant was the only local provider capable of what she needed. When she returned and was again refused service, she sued. 

     The federal district court found that she had no cognizable damages, having only sued for the emotional distress she suffered. It likened emotional distress damages to punitive damages, which the Supreme Court had held were unavailable for statutes like the Rehabilitation Act, which could only provide remedies similar to those available in contract cases because the federal funding created a contract-like obligation. The U.S. Court of Appeals for Fifth Circuit affirmed, but lodged its reasoning in the rarity with which emotional-distress damages are awarded in contract cases and because those scarce instances would not have provided defendants with notice of these damages being a consequence of its discriminatory act.

    While the plaintiff, remedies scholars, and the U.S. government all focused briefs on the long tradition of emotional-distress damages being available in contract cases, particularly where the breach of contract was likely to cause distress, CCL's brief demonstrated that the underlying bias against emotional-distress damages was ill-taken. It showed that empirical studies demonstrate that juries do a good job assessing the damages, align closely with the severity of the injury, and largely duplicate the assessments that are made by judges in bench trials. It said that the assumption held by the lower courts and by the defendant that emotional-distress damages are unbounded because they have no discernible market value was wrong in practice and should not influence the legal determination before the Court.

CCL Files Amicus Brief for Local Government Groups in Eighth Circuit Climate Change Case

August 25th, 2021

     Arguing that state and local governments have the same rights as other plaintiffs to choose state, rather than federal court, a CCL amicus brief asserted that there was no legitimate basis for oil companies to remove a climate-change lawsuit brought by the State of Minnesota to federal court. The brief, on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, focuses most heavily on the oil industries' argument that federal common law completely displaced the state causes of action asserted in the case. 

     In June, the U.S. Supreme Court held that a similar action brought by the City of Baltimore required lower courts to review all the claimed bases for federal-court jurisdiction when a defendant asserts that it was acting at the direction of a federal officer, even if that assertion fails as a matter of law. In the Minnesota case, the oil company defendants made that argument but did not seriously pursue it on appeal, emphasizing the other grounds that would permit it to be in federal, rather than state, court. 

     As for the "federal common law" argument, the amicus brief argued that the Clean Air Act displaced any federal common law and explicitly opened the door to state causes of action, such as the ones filed by Minnesota. The amicus brief was filed with the Law Offices of William Rossbach.

CCL Files En Banc Brief Arguing to Overturn 2016 Decision

August 2nd, 2021

     In a supplemental brief filed in the U.S. Court of Appeals for the Fifth Circuit, CCL's Robert S. Peck asked the court to overturn a 2016 decision on personal jurisdiction that stands in the way of litigating seven deaths and 40 injuries to U.S. Navy personnel when a container ship struck the U.S.S. Fitzgerald, a U.S. Navy destroyer in 2017 in the Sea of Japan. 

      The case was originally dismissed in federal district court in New Orleans because the judge ruled that the Japanese company operating the container ship was not subject to personal jurisdiction in the United States because it is not "at home" in this country. On appeal, Peck argued that the "at-home" requirement essentially rendered a federal rule of civil procedure unconstitutional as a product of due process, effectively saying that the Supreme Court and Congress got it wrong when Rule 4(k)(2) was promulgated. A panel of the Fifth Circuit agreed with him, but found that a 2016 precedent was an obstacle to ruling in the sailors' favor under the rule of orderliness. 

     Peck petitioned the Fifth Circuit to take up the matter en banc, where it would have the authority to overrule the errant precedent. The court agreed to do so, and today's filing was a supplemental brief in support of why the precedent should be overruled. Oral argument before the 17 members of the Court is scheduled for September 21. The case is Douglass v. Nippon Yusen Kabishiski Kusen.

Seventh Circuit Vacates Magnuson-Moss Decision, Opens Door to State Court Filing

July 29th, 2021

     In an opinion issued today, the Seventh Circuit held that both it and the district court lacked subject-matter jurisdiction in a putative class action that was filed against Best Buy's Geek Squad Protection Plan (GSPP). 

      The case began when a couple purchased an expensive television set from Best Buy that utilized the now-abandoned plasma technology. Best Buy urged them to purchase the GSPP as an extended warranty and offered a discount on the television set if they did. The couple purchased the GSPP. When the television set failed, Best Buy was unable to repair it, offering instead a refund of the depreciated value of the television or a much cheaper replacement, informing the couple that the GSPP is a service plan, not a warranty as their advertising states.

      The district court dismissed the action, holding that under federal regulations, a warranty cannot require extra payment, and the purchase of the GSPP prevented it from being considered a warranty under the Magnuson-Moss Warranty Act. On appeal, CCL argued for the couple that the regulation had no basis in the statute and allowed Best Buy to misrepresent its service contract as a warranty, precisely the evil that the Magnuson-Moss Act was designed to prevent.

      The Seventh Circuit's decision in Ware v. Best Buy did not address the substance of the arguments, but found that subject-matter jurisdiction was lacking, even though neither party nor the lower court raised the issue. Under Magnuson-Moss, jurisdiction lies in federal court only if a purported class action actually names 100 individual plaintiffs. That was lacking in the complaint. Recognizing the possibility of dismissal on jurisdictional grounds, CCL filed a supplemental brief for the plaintiffs, suggesting both other ways that jurisdiction could be asserted, as well as a request that the adverse district court decision be vacated so the Wares could refile in state courts. The Seventh Circuit took the latter approach.

CCL Argues that Oakland Meets FHA's Proximate Cause Standard before Ninth Circuit En Banc

June 23rd, 2021

     In an argument made via Zoom to a nine-judge en banc panel of the Ninth Circuit, CCL's Robert S. Peck argued that the Fair Housing Act has distinctive proximate cause requirements that are discernible from its legislative history and are met by the City of Oakland's complaint filed nearly four years ago against discriminatory lending practices it alleged Wells Fargo perpetrated on its residents.

     In 2017, the U.S. Supreme Court, in a case argued by Peck held that municipalities have standing to bring actions for lost or diminished property taxes resulting from discriminatory housing practices. However, it explicitly left the proximate cause standard applicable unanswered, leaving it to the lower courts to sort out that question. This case is one of the cases that seeks to answer the question. 

   In his argument, Peck told the Court that standing and proximate cause were not the same but could not be so incongruent that standing exists but a city could never plausibly plead proximate cause. The case is now under advisement.

CCL Files Supplemental Brief in Warranty Action Against Best Buy

June 18th, 2021

     In response to an order from the U.S. Court of Appeals for the Seventh Circuit, CCL and counsel for Best Buy filed simultaneous supplemental briefs addressing whether the Court had subject-matter jurisdiction to hear an appeal in a putative class action over the Geek Squad Protection Plan that was argued by CCL's Robert S. Peck in January.

     In the case, the plaintiffs allege that Best Buy represents to consumers that its plan is a warranty and uses that descriptor in marketing the plan. The district court in the case, however, held that it is not a warranty but a repair plan based on the notion that a purchaser pays extra for the coverage. The plaintiffs contend that the extra payment does not change the nature of the offering, particularly when a discount on the product is offered in conjunction with the plan's purchase. If a warranty, then Best Buy's more limited coverage for a product that cannot be repaired violates the Magnuson-Moss Warranty Act. If not a warranty, no redress can be afforded. 

    The subject-matter jurisdiction issue arises because the Act requires that 100 plaintiffs be named in the complaint to hear the lawsuit in federal, rather than state, court. However, this case was filed in federal court on the basis of diversity jurisdiction over another defendant, Samsung, the manufacturer of the purchased television set, on a state-based consumer protection claim. The Seventh Circuit has long recognized that, in cases like that, it has supplemental jurisdiction over the Magnuson-Moss claim, which is what the CCL brief argued.

CCL Files Briefs in Two FHA Cases

May 12th, 2021

     Representing the City of Miami Gardens, CCL filed briefs today in companion cases against Bank of America and JPMorgan Chase. The briefs replied to the banks in support of a motion that asked the Court to reconsider bifurcating discovery, a decision reached five years ago but never implemented because the cases were stayed while various related actions worked their ways through appeals.

     In both briefs, CCL justified reconsideration on the grounds that a recent Eleventh Circuit decision in another Miami Gardens case insisted that the City should have more vigorously sought more expansive discovery. Today's briefs explain that the motion for reconsideration was an attempt to do exactly what the appellate court instructed.

     The two cases were filed in 2014, but repeated appeals, including a couple of trips to the Supreme Court, slowed the case down.

CCL Files Two Briefs Opposing Dismissal in Fair Housing Act Cases

May 3rd, 2021

     Today, CCL filed briefs opposing motions to dismiss in two cases filed by the City of Miami Gardens, Fla. against Bank of America and Chase that accused the banks of discriminatory mortgage lending practices under the Fair Housing Act.

      The cases, pending for seven years, recently were reactivated after similar cases' appeals had run their course. The banks filed motions to dismiss, claiming the city lacks Article III standing, failed to meet the statute of limitations, failed to sufficiently allege proximate cause because the city's lost property tax revenue was too remote from the discriminatory mortgages to be actionable.

      In response the city's brief, largely written by CCL, argued that the city met the criteria for constitutional standing, alleged a continuing violation that allows relation back to earlier discriminatory loans because it identified more than one similar loan within the two-year period before the original complaint was filed, and met the standard for proximate cause because of the regression analysis it alleged, which every court to date has found sufficient.

     The banks will now have an opportunity to reply to the brief.

Plaintiff Seeks Rehearing in Seventh Circuit Case about Off-Duty Police Shooting

March 31st, 2021

     As a member of the legal team representing the victim of a shooting by an off-duty Chicago police officer, CCL filed a petition for rehearing and rehearing en banc in the U.S. Court of Appeals for the Seventh Circuit. 

     In the underlying case, Michael LaPorta was shot in the head by an off-duty officer, using his service revolver, during an argument the two were having at the officer's home. LaPorta survived, but suffered devastating injuries that will require lifetime care. The officer, who was the subject of 19 different complaints about his use of violence both on and off the job, but never disciplined, believed himself above the law. Even after this shooting, for which he was never disciplined, fellow officers attempted to cover up his crime and the City of Chicago attempted to defend its liability by claiming that the shooting was a suicide attempt.

     A jury found the city liable for its policies, customs, and practices of not disciplining police officers so that they could act outside the law with impunity because of their status. The Seventh Circuit reversed the verdict, holding that the city had no obligation to protect anyone from private violence from an off-duty police officer. 

    The new petition asks the court for reconsideration because precedent holds that a municipality can be liable for injuries where the city's policies, customs, and practices are the "moving force" behind the injury. By requiring that the injury be carried out by a state actor, as the opinion did, the brief argues that the panel improperly overruled existing precedent.

    The petition was primarily written by Chicago-Kent law professor Carolyn Shapiro. Others on the case besides CCL include the Romanucci & Blandin law firm of Chicago, Michael Rathsack of Chicago, and David Rudovsky of Philadelphia.