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     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.

     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.

     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.

     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.

     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.

     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. 

     In 2013, a freight train carrying crude oil derailed, destroying much of the downtown of a city in Quebec and killing 47 people, who subsequently sued. Their case was dismissed by the federal district court in Maine on jurisdictional grounds. They appealed the dismissal, but for the first time in the case, the U.S. Court of Appeals for the First Circuit held that the bankruptcy, rather than the general civil rules applied, meaning that their notice of appeal had to be filed within 14, rather than 30, days, and depriving the appellate court of subject-matter jurisdiction.

     The plaintiffs have now sought review in the U.S. Supreme Court. In an amicus brief filed by CCL, scholars who teach and write in the areas of civil procedure and federal courts urged the Court to take up the case because switching the applicable rules mid-stream is inconsistent with due process and has troubling and far-reaching consequences for civil litigation. By insisting that a non-party's bankruptcy petition was sufficiently related to this litigation and therefore warranted application of the bankruptcy rules, the First Circuit invited other litigants to search for a distantly related bankruptcy litigation to game the system and knock out cases against themselves, the brief argued.

      The case, Roy v. Canadian Pacific Railway, will be considered by the Supreme Court in conference in April after the defendant was granted a 30-day extension of time to respond to the plaintiffs' petition and the CCL amicus brief.

     Asking the U.S. Court of Appeals for the Seventh Circuit to affirm a district court ruling that the Public Readiness and Preparedness (PREP) Act does not completely preempt or displace a cause of action under the Illinois Nursing Home Care Act, CCL argued that the 2005 federal statute attempted to encourage the use of pandemic countermeasures and created immunity from liability when used. Here, however, the nursing home failed to use the countermeasures and cannot claim liability protections from the PREP Act.

     The case arises from the death of a nursing home resident. The lawsuit alleges that the nursing home failed to take basic safety measures to protect the decedent from COVID and worked against the residents' health by instructing staff to come to work, even if they had COVID symptoms. Once exposed, the decedent passed away quickly. 

     The defendant first argued that the case belongs in federal court because it was acting as a federal agent in helping address the COVID-19 pandemic. However, as the CCL brief shows, the nursing home had no contract or other indicia that it was working with the federal government. Instead, it attempted to comply with federal regulations -- and regulatory compliance does not transform a private party into a federal agent.

     The defendant then argued the PREP Act completely preempted the state cause of action, transforming it into a federal one. However, to do so, CCL explained, the PREP Act had to apply to the case. It doesn't because it does not cover the non-use of countermeasures.

      Finally, the defendants cursorily argued that the state cause of action was based on a violation of federal law, making it federal in nature. Yet, where the federal law does not apply, CCL said, it cannot be based on federal law.

     The defendant next has an opportunity to file a reply brief. The case is Martin v. Petersen Health Operations.

     In remarks delivered on the Senate floor on climate change, Senator Benjamin Cardin (D-Md.), referred to several statistics in the amicus brief filed on behalf of the National League of Cities (NLC) nd the U.S. Conference of Mayors (USCOM) by CCL in Baltimore's lawsuit against major oil companies for the effects its misrepresentations on the effects of fossil fuels have had on the city's infrastructure. 

     CCL has filed amicus briefs in several city, county, and state lawsuits on the issue on behalf of the NLC, USCOM, and the International Municipal Lawyers Association. In support of Baltimore's position that their case belongs in state court, CCL filed briefs in both the U.S. Supreme Court, where the brief was referenced twice in oral argument, and in the U.S. Court of Appeals for the Fourth Circuit, where it was recently re-argued.

     The Supreme Court denied a petition for a writ of certiorari today on an issue of preemption, where CCL represented the plaintiffs in opposing review. 

     In Edward D. Jones & Co., L.P. v. Anderson, No. 21-552, the financial management firm sought Supreme Court review of a Ninth Circuit decision that the plaintiffs' claims were not preempted by the federal Securities Litigation Uniform Standards Act (SLUSA), which was enacted to cover lawsuits based on the purchase or sale of a covered security. The Ninth Circuit had held that, when Edward D. Jones switched the plaintiffs from commissioned-based fees on their investments to an annual management fee arrangement, the complaint about the higher fees was unrelated to purchases or sales. The plaintiffs were "buy and hold" investors, which means that after making their original purchases they largely rode the market, rather than engage in frequent trading. As a result, their accounts generated very few commissions. The annual management fee, on the other hand, taxed clients a percentage of their investment, guaranteeing income to the firm.

     Lawyers for Edward D. Jones argued that the federal appellate circuits had split on whether the litigated issue had to "coincide with" or be "material to" a purchase or sale and asked the Supreme Court to settle that issue through this case. CCL's brief in opposition to certiorari argued that the issue in the case was utterly unrelated to a purchase or sale and thus provided no occasion for the Supreme Court to take up the issue. In representing the plaintiffs, CCL joined Franklin D. Azar & Associates, who had won the case in the Ninth Circuit.