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     In an opening brief filed today, plaintiffs in a number of pending civil cases facing unreasonable delays asked the Washington Supreme Court to hold that they have standing to bring an action against the State over inadequate funding of the state courts. Their case about judicial funding was filed last year, but was dismissed by a trial court with an opinion or explanation. The plaintiffs, represented by Stritmatter Kessler Koehler Moore and CCL, sought direct review in the state supreme court.

     The brief notes that Washington's chief justices have long pleaded with the Legislature for more funding, noting that the state's trial courts ranked 50th out of 50 in per capita funding. The brief invoked the state constitutional guarantees of access to the courts "without unnecessary delay" and jury trials to argue that systemic issues prevent courts from hearing cases in a timely manner. They further argued that the system of separation of powers empowers the courts to assure adequate funding. 

      In Washington, half of judicial salaries at the trial level are paid by the state, while counties are responsible for the other half. By statute, the state legislature imposed half of all other costs on the counties as well. A popular referendum, however, required the state to pay all costs of additional judges added by the state. Nonetheless, the lawsuit argues that the provision of justice is ultimately a state responsibility and cannot be dependent on the ability of counties of uneven wealth to finance it. In this respect, the lawsuit is similar to school finance cases that have succeeded in Washington and other states. 

      A response brief, arguing in favor of affirming the dismissal, will be filed by the State February 25. 

     The U.S. Conference of Mayors and the National League of Cities emphasized federalism considerations in an amicus brief filed in the Third Circuit in support of the City of Hoboken, New Jersey's climate-change lawsuit, seeking damages for infrastructure injuries due to oil companies' false claims about gasoline emissions. CCL filed the amicus brief along with Janet, Janet & Suggs.

      The defendant oil companies moved the case from state court to federal court and resisted the return of the case to New Jersey state court on claims that it constituted a federal cause of action. The amicus brief filed today explained that municipalities, like all other plaintiffs, are masters of their complaint and have a right to choose the court in which their state-based claims are heard. 

      Representing investors who sued Edward D. Jones (EDJ), the financial management company, a CCL brief urged the Supreme Court to deny certiorari after the Ninth Circuit held that the case could move forward. 

      As co-counsel with Franklin D. Azar and Associates, CCL represents a putative class of passive investors, who purchase stock and then hold it while its value appreciates. They held their investments at EDJ, which only charged commissions when the stocks held were traded. Because these investors rarely traded, EDJ did not make any profit on the funds held. To make these investments generate money, EDJ convinced the investors to switch to annual management-fee accounts that charged them for "advice" on maintaining or increasing their investments. Although no advice was ever given, the cost to investors was substantially greater.

     The investors then sued under state law, arguing that EDJ's failure to conduct a suitability analysis before pushing for the change in the accounts. EDJ countered by arguing that federal Securities Litigation Uniform Standards Act (SLUSA) preemptively barred any lawsuits. A federal district court sided with EDJ and dismissed all claims with prejudice. The Ninth Circuit, however, unanimously reversed, finding that the claims were not premised on the sale or purchase of a security, a requirement for application of SLUSA, but instead on fees charged for passive accounts.

      EDJ argues that the federal circuit courts are in disagreement about what constitutes a qualifying sale or purchase, with some relying on Supreme Court precedent that the basis of the lawsuit must merely "coincide" with a sale or purchase, while others rely on subsequent Supreme Court precedent that requires the complaint topic be "material" to a purchase or sale. In its opposing brief, CCL argues that the dispute between "coincide" or "material" is irrelevant to this case because the gravamen of the complaint has no connection at all with a sale or purchase. 

     An EDJ reply brief is expected in early January. Afterwards, the Supreme Court will review the case in conference to determine whether to take up the matter.

      Highlighting excellent appellate advocacy in the Supreme Court argument over Mississippi's abortion case, CCL's Robert S. Peck highlighted some of the best advocacy moments during the argument in a post on the Appellate Advocacy Blog. The post discusses Can an Oral Advocate Learn Anything from Last Week's Supreme Court Hearing on Abortion? 

     CCL filed its reply brief in support of its challenge to the Texas medical-malpractice noneconomic damage cap, arguing that the Seventh Amendment qualifies for application to the States and its preservation of the jury trial as known at common law prevents artificial, one-size-fits-all damage caps on common-law causes of action. The case, Winnett v. Frank, is pending in the U.S. District Court in the Western District of Texas. 

     CCL's brief responds to substantive arguments against application of the Seventh Amendment and the jury-trial right as an obstacle to legislated revision of verdicts made largely by the defendants and the Texas Hospital Association, which intervened in the lawsuit. In addition, CCL responded to procedural objections filed by the Texas Attorney General, who also intervened.

     The attorney general argued that the case should be dismissed because it isn't ripe and because no plaintiff had yet had the legislative cap applied in their underlying medical malpractice case. CCL responded by asserting that its lawsuit is a well-recognized form of preenforcement challenge to a statute, that the defendants had asserted the cap as an affirmative defense in medical malpractice cases, and that the imminent enforcement of the cap affected trial strategy, evaluation of settlement offers, and the type of evidence that would be offered at trial, even if the cap is never applied.

     CCL also argued that the Supreme Court had authoritatively held that juries are the "judges of damages" in a 1998 decision, Feltner v. Columbia Pictures Television, Inc., and that replacing their factfinding, even under the guise of "applying the law," denied the full meaning of a jury trial as guaranteed by the Constitution.

     In the case, CCL represents the plaintiffs along with the Houston law firm of Hampton & King. Oral argument in the case is scheduled for January 7.

     In a California medical-malpractice case, CCL joined trial counsel in filing an opposition to the defendant's attempt to reduce the jury's verdict to $250,000 in noneconomic damages and to pay the damages to be incurred in the future over time. 

    In Merlo v. Pristine Surgery Center, a jury found an ambulance company and its paramedics liable for putting the patient in a permanent vegetative state by misplacing a breathing tube and assessed $50 million in damages. Of that amount, $20 million comprised noneconomic damages, which state law requires be reduced to $250,000. The defendant had turned down a pre-verdict settlement offer of $5 million for the entire matter.

    The newly filed brief challenges the constitutionality of the damage-cap law and its provision allowing periodic payments of future damages. The cap, the brief argues, violates the right to a jury trial, among other things. The periodic payments provision, it further contends, creates a windfall for defendants because the jury first is instructed to reduce the verdict to present value, discounting the future damages as a result on the assumption that the future damage money could be invested and grow over time. A periodic payments plan then discounts it again, because it withholds that money so it cannot be invested and grow, violating equal protection and due process, the CCL filing argues.

     In a challenge to the Texas statute that limits damages in medical malpractice cases brought in federal court, CCL filed its opposition to a motion to dismiss made by the Texas Attorney General on behalf of the state judicial defendants. The opposition also questioned the propriety of the Texas Attorney General filing a response in support of his own motion as both an attempt to evade the page limits on motions and improper because court rules only permit a response from those opposing the motion.

     The opposition noted that Section 1983 permits injunctions against enforcing state laws against state judges after a declaratory judgment was obtained. The current motions before the court seeks that declaratory judgment. The U.S. Supreme Court had previously permitted actions against judges who enforce unconstitutional laws.

     Subsequent to CCL's filing, the U.S. Supreme Court held that Texas judges could not be defendants in a Section 1983 preenforcement challenge to a statute in the high-profile S.B. 8 case, in which abortion providers sued over a new state vigilante bill that put a bounty on those who perform or assist in obtaining abortions. As a result, CCL will dismiss the judges in its case and proceed against the other defendants. 

     In a reply brief filed in the Ninth Circuit, CCL joined co-counsel in arguing that the district court misunderstood federal and state law in eliminating one cause of action, limiting evidence, and reducing punitive damages in bellwether cases that opted out of the global settlement of the Volkswagen emissions scandal.

     For a nine-year period of time, Volkswagen employed a "defeat device" in certain cars sold as "green" vehicles that tricked emissions tests into registering low carbon emissions rates when the cars actually emitted 36 times the permissible levels of pollution. Buyers who purchased the cars across the United States sued over the misrepresentations. Volkswagen, which pleaded guilty to charges emanating from the scandal in both the U.S. and in Europe, settled with most buyers in a multi-district litigation heard in federal court in San Francisco.

     Nine purchasers who opted out of the settlement chose to try their cases. Under the terms of the joint trial, VW admitted liability but challenged the claimed damages. The purchasers brought several causes of action, including claims under California's lemon law and its consumer-protection law. However, the court treated the settlement offer made prior to the lawsuits as a bona fide attempt to settle the claims, throwing out the consumer-protection cause of action. The reply brief asserts that this was error because the settlement did not qualify as an offer under the law and included a waiver of other claims, which is inconsistent with California precedent. The court also ruled the cars fit for driving, even though the California statute has more rigorous requirements, including one that bars mislabeling the vehicles.

    Four of the plaintiffs won jury verdicts of $25,000 each in punitive damages. The court reduced those verdicts to a 4:1 ratio, putting each punitive-damage award under $10,000.  The reply brief argued that this misconstrued Supreme Court precedent that has rejected mandatory ratios and permits higher punitive damages when the compensatory damages are small.

    The case is due to be argued December 10.

     With the Biden Administration's vaccine mandate for large employers due to go into effect in January, the Fifth Circuit and several other courts are considering challenges that seek to stop the mandate. In a story on the Bloomberg Law website, CCL's Robert S. Peck is quoted that, strategically, the administration might wait to see what different courts decide initially before seeking the U.S. Supreme Court's intervention, given that there is still time before the mandate is due to go into effect.

     The story can be found at White House Biding Its Time in Fight Over Shot-or-Test Mandate.

     In a brief filed today, CCL argued that the State of Florida's motion to dismiss two counts in a First Amendment challenge it filed should be denied.

      In RAF v. Brown, CCL has challenged the constitutionality of a 2021 state law that prevents roofing contractors from doing anything that might encourage a homeowner to make a claim under the homeowner's insurance policy. The law transparently attempts to keep homeowners in the dark about the coverage that the policy they have paid for might provide. On November 22, CCL will argue in favor of a preliminary injunction on the law.

       Even while that motion for injunctive relief remains pending, the State has sought to dismiss two minor claims relating to whether the law violated the impairment of contracts provision in the U.S. Constitution and one argument against a provision that imputes legal violations of third-parties to contractors. 

       The brief filed today argues that Florida's complaint about the skeletal nature of two sentences in the complaint fails to read the complaint as a whole and the much more substantive description of the claims that becomes evident from that reading. No date has yet been set for argument on the motion for a partial dismissal.