News

     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.

     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.

     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.

     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.

     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.

     CCL filed separate oppositions to motions to stay discovery filed by Bank of America and Chase in Fair Housing Act cases brought by the City of Miami Gardens, Florida. The banks, defendants in separate cases before the same judge, filed motions to dismiss the city's lawsuits against them, claiming that the city lacks standing, that the city cannot satisfy the statute of limitations, and that the city does not adequately plead that the banks are the proximate cause of the city's loss of property tax revenue as a result of discriminatory mortgage lending. Shortly after filing the motions to dismiss, the banks asked the court to stay discovery until their motions are decided.

    In its opposition to the stays, CCL's brief argues that precedent rejects stays unless two conditions are met. First, the motion to dismiss must be so strong that the city has no real defense to it. Second, that the motion to dismiss has been pending for an unseemly length of time, making a stay proper. Neither condition is met, CCL told the court. A slew of judicial decisions in related or similar cases supports the validity of the city's complaint, plus the motion to dismiss is so recent that the City has not yet filed its response.

     CCL represents Miami Gardens along with the City Attorney's office, Trial and Appellate Resources in California, and the Peretz law firm in Oakland, California.

     Counsel in two Fair Housing Act cases filed a new joint proposed scheduling order as the case resumes after being in civil suspense. In both cases, the City of Miami Gardens, Florida, sued banks over allegedly discriminatory mortgage lending practices that resulted in loss of property values and diminishing the property taxes the city could collect. The cases were filed in 2014, but were stayed repeatedly while related or similar cases proceeded through the federal appellate courts, including trips to the U.S. Supreme Court in which CCL represented both Miami and Miami Gardens.

     In the current cases, Miami Gardens separately sued Bank of America and JP Morgan Chase. The city filed an amended complaint in January after the case was revived. The proposed scheduling order, filed March 15, outlines the parties agreed and conflicting positions on deadlines and various issues. 

     Working with the Levin & Peconti law firm in Chicago, CCL helped write a sur-reply brief that responds to the nursing home defendant's invocation of a interpretation of the PREP Act written in January by the prior administration.

      The Public Readiness and Emergency Preparedness Act, also known as the PREP Act, was enacted by Congress in 2005 and provides immunity from losses for the administration or use of certain countermeasures against diseases, threats, or conditions identified by the government, as long as the user of the countermeasures does not engage in willful misconduct. The measure was designed to free health-care providers from liability when a vaccine or other tool authorized for use in a public health emergency proves ineffective. 

      In Martin v. Peterson Health Operations, pending in the U.S. District Court for the Central District of Illinois, the plaintiff alleges that the nursing home defendant failed to undertake necessary steps to prevent the spread of COVID-19 in its facility and that failure resulted in the death of a resident, whose estate has sued. Peterson Health removed the case from state court to federal court and then asserted that the case should be dismissed under the PREP Act.

      The vast majority of courts in cases like this one, with only one outlier decision, have held that the PREP Act does not apply when there has been no administration or use of a countermeasure. However, the general counsel of the Department of Health and Human Services in the outgoing administration issued an 11th hour interpretation of the PREP Act and asserted that a decision against using countermeasures was covered by the Act's immunity provision as well. Although the defendant asserted that the interpretation had a binding effect, the sur-reply cites decisions that recognize a statutory interpretation by a general counsel of an administrative agency does not have the force and effect of binding law and that the interpretation itself acknowledges that it is not binding. The brief was filed March 8.

     In a brief filed on behalf of the American Association for Justice (AAJ), CCL pointed out serious constitutional flaws implicating the right to trial by jury and the right of access to the courts in a proposed class settlement of in the Roundup multi-district litigation. The settlement would affect thousands of claimants who used the weed killer Roundup, which is alleged to cause non-Hodgkins lymphoma (NHL). The settlement would put nearly $2 billion up to settle claims, while the defendant, Monsanto, continues to sell the product.

     The settlement proposes allowing claimants who reject individual settlement offers to bring their cases before a jury, but truncates those trials by mandating certain evidence be admitted and limiting remedies. The brief points out that a so-called "advisory" science panel, which would delay cases brought by at least four years, provides inherently problematic evidence before the jury about the connection between Roundup and NHL that adversely affects the jury's role in judging the credibility of witnesses and the weight accorded to evidence. The Science Panel conclusion entered into evidence need not even be accurate to be beyond challenge, while all counter-evidence would be subject to all evidentiary challenges.

     The brief also argues that the proposed settlement would prohibit punitive damages in those jury trials, giving Monsanto a free pass to continue the egregious misconduct that potentially exposes it to those damages absent the settlement.

     A National Law Journal article published the same day as the AAJ amicus brief was filed, features the brief in describing the uproar that the proposed settlement generated within the trial bar.

     Seven sets of plaintiffs who opted out of two classwide settlements and tried their individual cases together filed their opening brief arguing fundamental errors in their cases that resulted in small-damage awards in most of the cases, and no liability in two cases. CCL was part of the legal team that drafted the brief.

     Riley v. Volkswagen of America grows out of a multi-year fraud in which Volkswagen used a "defeat device" to prevent government officials from realizing that the cars the company sold as "green" vehicles, with especially lowered emissions, actually spewed pollutants at 40 times the maximum level set by law. A program in the cars would adjust pollution levels to meet government requirements when a measuring rod was placed inside the tailpipe, giving a false reading of compliance. After the fraud was discovered, Volkswagen was subjected to a variety of criminal and civil penalties, and purchasers of the vehicles sued. Cases filed in federal courts across the country were consolidated for treatment in the U.S. District Court for the Northern District of California. Two class settlements came out of that courts, but a number of disaffected plaintiffs opted out of the settlements, seeking their own day in court on their complaints.

     The Riley plaintiffs were Californians who sought redress under the state's strong consumer protection laws. Under one, the Song-Beverly Act, the state's lemon law, the inability to fix a vehicle to meet the seller's promises results in damages that can be three times the sales price, plus attorney's fees. Judge Charles Breyer, presiding over the case, dismissed claims under the Act on the grounds that the vehicles were still operable, even if they did not meet the environmental standards that were promised and were the motivation for buying these particular cars. 

     In addition, the judge ruled against claims under the Consumer Legal Remedies Act, holding that the settlement offer was a "reasonable accommodation," which forgives potential liability for good-faith mistakes that are immediately corrected. He further held that claims for common-law fraud, which succeeded before the jury, only permitted meager damages for the difference in the vehicles' value with and without proper environmental controls, despite being illegal to sell as a new vehicle at the time of sale. Judge Breyer also reduced punitive damages of $25,000 per case assessed by the jury to a range of $2,328 to $12,532, a 4:1 ratio, even though larger ratio is constitutionally permissible when compensatory damages were small, as here.

    The brief details the errors made by the judge on these issues, as well as other evidentiary and procedural matters. Volkswagen's responsive brief is not expected until July.