News

CCL Has Banner Day with Oral Argument, Multiple Brief Filings

January 19th, 2021

      CCL President Robert S. Peck argued a Magnuson-Moss warranty case in the Seventh Circuit, contributed to a petition for certiorari in the Colorado Supreme Court filed today, had an amicus brief he wrote mentioned twice during oral argument in the U.S. Supreme Court, and wrote a brief in opposition to a motion to dismiss filed in Illinois circuit court today.

      In Ware v. Best Buy Stores, the Seventh Circuit will decide whether a Geek Squad Protection Plan (GSPP) is a warranty or a service contract. The Wares were looking to purchase a $3,000 state-of-the-art television set in 2013. When the salesperson and store manager warned them that it would likely only last a couple years and suggested they extend the manufacturer's warranty with a five-year GSPP, which would give them $300 off the TV and free delivery, it was enough to seal the deal. When the set went bad in 2017 after years of problems and became unfixable, Best Buy offered them a discounted voucher for a new TV, saying that what the Wares bought was a service plan, not a warranty, despite language in the document that made it a warranty. The district court dismissed the putative class action, finding that an FTC regulation that said the payment of additional consideration made the GSPP a service contract. In today's appeal in the U.S. Court of Appeals for the Seventh Circuit, Peck argued that Magnuson-Moss was designed to prevent consumer deception and that Best Buy had violated its provisions by multiple indicia that the bundled TV and plan was a single item that included a warranty. The court took the case under advisement.

      The Colorado Supreme Court filing came in a catastrophic medical-malpractice case, Smith v. Surgery Center, where the Court of Appeals took away a significant jury verdict because it said the ambulatory surgery center defendant could not have committed negligence because it was barred from practicing medicine by the corporate practice of medicine doctrine. The reply brief filed today argued that the jury held the center liable for its own negligence and that allowing the published opinion to stand without review would massively expand the doctrine to provide plenary immunity to the center regardless of what it did or what duties it assumed.

      The Supreme Court heard oral argument today in BP v. Mayor and City Council of Baltimore, concerning federal officer removal. Peck wrote an amicus brief on behalf of state and local government groups that, among other things, emphasized that BP's position would allow lawyers to manipulate the system to file interlocutory appeals that Congress had denied authority for. In response to a question from Justice Kagan, Victor Sher, representing Baltimore, invoked the CCL amicus brief. Later, the same amicus brief provided another answer.

     Finally, Peck wrote and filed an opposition to a motion to dismiss in a COVID-19 related nursing home case, Leja v. Bridgeview, in an Illinois state circuit court.

CCL Files Amicus Brief for State and Local Government Groups in Supreme Court

December 22nd, 2020

     CCL filed a amicus curiae brief in the U.S. Supreme Court on behalf of state and local government groups, arguing that appeal from a remand order that rejects removal on federal-officer grounds, when other removal grounds was also asserted, is limited to that one issue. 

     In addressing this technical civil procedure issue, CCL's brief argued that the removal statute's text, Congress's intent, congressional ratification of prior court precedent, and legislative history all support affirming the decision rendered by the Fourth Circuit in this case, BP Plc v. Mayor and City of Baltimore, No. 19-1189. Federalism principles further support the reading advanced by CCL's brief, because Congress would only abrogate state court authority through the most explicit statutory direction, as past Supreme Court decisions have required. 

     The brief also defends the capability and impartiality of state courts when confronted with issues of this kind. Furthermore, it argues that BP's myopic focus on the word "order" in the statute as authorizing an appeal of all grounds rejected by a district court in a single ruling takes the word out of context. It cites the late Justice Scalia's book on interpretation to explain that a good "textualist" is neither a literalist nor a nihilist, but that BP's approach would make the Court both. 

      Baltimore, like a number of states and local governments, brought what are largely public nuisance actions under state law in state court, seeking relief from oil companies for their contributions to climate change. BP and the other oil company defendants tried to remove the case from state court to federal court, claiming that its responsibility for climate change was a function of following the federal government's directions and making them the equivalent of a federal officer, who has a right to have any case against that officer heard in federal court. BP does not really defend that ground, but uses it as a basis to bring its other grounds as a basis for appeal. Federal law does not allow the other bases to be grounds for being in federal court. CCL argues that this misuse of federal-officer removal is a matter of gamesmanship. Any competent lawyer would make the allegation in order to obtain appellate rights for more serious arguments.

     In the amicus brief, CCL represents the National Conference of State Legislatures, the Council of State Governments, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.

CCL Files Supreme Court Reply Brief in FHA Civil Procedure Issue

December 11th, 2020

     Today, CCL filed its reply brief in City of Miami Gardens v. Wells Fargo & Co., pending on a writ of certiorari in the U.S. Supreme Court. Representing Miami Gardens, CCL argues that Wells Fargo distorts the record in attempting to avoid review in the Supreme Court.

      When the case was before the U.S. Court of Appeals for the Eleventh Circuit, that court raised a new issue that had not been briefed or before the district court just before oral argument. That issue, whether there was record evidence of the City's injuries from allegedly discriminatory mortgage loans the bank had made, had not been part of the threshold inquiry that the district court had limited itself to. Because the district failed to permit discovery on that issue, CCL's Robert Peck argued that the issue was not ripe from review and instead remained at the pleadings stage, where allegations were sufficient. 

     Nonetheless, the appellate court ruled that it was a fair inquiry and held that Miami Gardens lacked Article III standing to pursue its case. CCL then sought rehearing en banc, arguing that this procedural tactic had been condemned by the U.S. Supreme Court in Alabama Legislative Black Caucus v. Alabama (2015). The Eleventh Circuit denied review, but the original panel wrote an extensive defense of its use of the procedural device. Two judges on the Eleventh Circuit dissented from the denial of rehearing en banc, likening the situation to a teacher who confiscated a student's pencil before an exam and then penalized the student for turning in a blank sheet of paper.

     CCL petitioned for certiorari, and Wells Fargo opposed. The International Municipal Lawyers Association filed an amicus brief in support of the petition. Today's filing responded to the Wells Fargo brief. The case is expected to be reviewed by the Supreme Court at its January 8 conference.

First Circuit Holds that Appeal from Denial of Federal Officer Removal Does Not Open the Door to Appealing Other Grounds for Removal

October 29th, 2020

     The federal First Circuit today held that denial of grounds for removal from state to federal court based on claiming to be a federal officer, while subject to appeal, does not open the door to appealing any other basis asserted in the removal. The decision in State of Rhode Island v. Shell Oil Company, a lawsuit over the oil companies' misrepresentations about the effects of oil use on climate change, is one of a number of cases in which federal courts have reached identical conclusions, with only some older cases in other appellate courts going the other way. In today's case, CCL represented the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association as amicus curiae, or friends of the court.

     A similar decision from the Fourth Circuit in a case brought by Baltimore was accepted for review by the U.S. Supreme Court in September. Briefing is now underway in the Baltimore case.

CCL Wins Discovery Limitation Battle for City of Sacramento against Wells Fargo

October 9th, 2020

     The U.S. District Court for the Eastern District of California denied a motion to limit the discovery the City of Sacramento could take in connection with its allegations that Wells Fargo & Co. had issued discriminatory mortgage loans in violation of the Fair Housing Act (FHA). CCL's Robert S. Peck argued the motion for the City on March 6. The court indicated that the coronavirus pandemic delayed resolution of the argued motion before today.

     The City alleged that, since 2004, the bank had issued loans that were either more expensive or riskier on the basis of race, resulting in a significant number of foreclosures to minority borrowers and reducing the City's property-tax revenue. Wells Fargo, which had used the same tactic in other similar cases, moved to bifurcate discovery, limiting the scope of discovery to the two-year period before the complaint was filed and then challenging the City to prove its entire case on that basis before being permitted to show a continuing violation.

     Peck argued, and the court agreed, that the information then obtained would not be statistically significant and would be inconsistent with U.S. Supreme Court FHA jurisprudence that treats continuing-violations, as defined in the statute, differently from isolated violations. The court held that limiting the period of discovery to the two-year period would unfairly handicap the City's case and denied Wells Fargo's motion.

     The case now moves into the discovery phase.

CCL Files Cert Petition in Fair Housing Case

September 24th, 2020

     Today, CCL filed a petition for certiorari in the Supreme Court in City of Miami Gardens v. Wells Fargo & Co., a Fair Housing Act case brought by CCL's client, Miami Gardens, over discriminatory mortgage lending by the bank.

      The U.S. Court of Appeals for the Eleventh Circuit threw out Miami Garden's case on its own motion, raising issues about the city's standing to pursue the action. CCL argues that the Court of Appeals wrongly raised that question in the course of an appeal on whether the city met the statute of limitations, a narrow question on which discovery had been limited. To answer the question that was not raised by the trial court, the defendant, or any of the briefing, CCL's Robert Peck had argued would have required the trial court to permit discovery over loans originated before the limitations period. as both U.S. Supreme Court and Eleventh Circuit precedent holds. 

     After the ruling, CCL petitioned for rehearing en banc, which was denied. Still, a dissent from that denial written by Acting Chief Judge Wilson and joined by another judge, charged that the Eleventh Circuit panel's action was the equivalent of a teacher taking away a student's pencil, giving an exam, and then failing the student for turning in a blank paper.

     The Supreme Court petition asserts that the Eleventh Circuit's decision conflicts with a 2015 U.S. Supreme Court's decision that found the same tactic by the same judge violated elementary notions of fundamental fairness and asks that it be reversed.

     Wells Fargo is expected to file a brief in opposition to the petition, to which CCL will write a reply.

Ninth Circuit Holds that Oakland Lawsuit against Wells Fargo Should Go Forward

August 26th, 2020

     Today, the Ninth Circuit unanimously ruled that the City of Oakland had sufficiently pleaded proximate cause to survive a motion to dismiss in its Fair Housing Act lawsuit against Wells Fargo, N.A. The Center for Constitutional Litigation represented Oakland in this appeal.

     Oakland sued Wells Fargo over its practice of offering minority borrowers more expensive or riskier mortgages than it offered non-minorities, resulting in a disproportionate number of foreclosures and reducing the city's tax base. In another CCL case, Bank of America Corp. v. City of Miami, the U.S. Supreme Court in 2017 had held that cities have standing to bring such lawsuits, but left it to the lower courts to set a standard on what analysis to apply to determine if the alleged injuries were proximately caused by discriminatory lending.

     In the Oakland case, the U.S. District Court agreed with CCL that the city met the standard that ought to be applied, but certified the issue to the Ninth Circuit for review. Today's decision from that court agreed, finding that the text, legislative history and Supreme Court's Miami decision both all support the notion that Oakland's injuries are not too remote from the acts of discrimination to sustain a legal action. In doing so, the Ninth Circuit joined courts in cases brought by Miami, Philadelphia, and Sacramento, all argued by CCL's Robert S. Peck, in upholding the cities' rights. Like those other courts, the Ninth Circuit agreed that Oakland's use of regression analyses made the connection between the FHA violation and claimed injury plausible, the standard applied at the motion to dismiss stage.

     The case now returns to the district court for a determination of whether the same analysis applies to the city's claims for declaratory and injunctive relief, unless the bank seeks review in the Supreme Court, as it has previously.

Supreme Court Hands CCL Another June Victory

June 29th, 2020

     This morning, the U.S. Supreme Court denied certiorari in Airbus Helicopter, Inc. v. Riggs, a case in which Airbus claimed the right to remove a case from state to federal court because it self-certified the airworthiness of its helicopter under a designation from the Federal Aviation Administration. The claim by French aviation manufacturer was that the designation made it a federal officer with a right to have the matter heard in federal court. Today's order from the Supreme Court upheld decisions from the U.S. Court of Appeals from the Ninth Circuit and the federal district court in Nevada that found no basis to treat Airbus as a federal officer. All three courts accepted the arguments against Airbus crafted by CCL's Robert S. Peck.

     The case will now return to Nevada state court for trial.

CCL Wins Reinstatement of Jury Verdict

June 19th, 2020

     Today, the U.S. Court of Appeals unanimously reinstated the jury's verdict in a case against Royal Caribbean Cruise Lines in a case argued by CCL's Robert S. Peck only one week ago. 

      Edgardo Lebron suffered a triple break of his ankle during a vacation cruise when the ship offered ice skating sessions on board the ship. Lebron was given ice skates with broken laces, while the ice in the rink was poorly maintained after it had been last resurfaced two hours earlier. A jury had ruled in Lebron's favor on both negligence theories: defective laces and rough ice, even though the complaint pleaded those causes of action in the alternative. 

       Nonetheless, the district court judge took the verdict away, ruling that Lebron had to prove both forms of negligence in combination and that insufficient evidence supported the jury's determination that the cruise ship had notice of the gouges and problems with the ice. 

       In seemingly record time, the appeals court found that the judge erred in requiring both causes of action be proven. Still, it held both were sufficiently proven so that a reasonable jury would have found the cruise line negligent on either claim.

CCL Has Banner Day

June 12th, 2020

     CCL had a banner day today, arguing one case in a federal appeals court in Miami (virtually), filing a reply brief in support of a motion for a preliminary injunction in a federal district court in West Virginia, and filing a reply brief on a stay motion in a federal district court in California.

     The argument in the Eleventh Circuit, sitting in Miami, concerned a personal-injury action on a cruise ship. Edgardo Lebron had tried out the ice rink on a cruise ship, but defective laces on his right skate caused him to fall, fracturing his ankle in three places. After a trial, the jury ruled in his favor, but the trial judge took the verdict away from him. Although he pleaded that the injury was caused by either the defective skate or a failure to maintain the ice, the judge insisted that he prove both and then disagreed with the jury on whether he had proven that the ship had notice of the ice issues and should have corrected them.

     CCL's Robert S. Peck argued that the judge had no authority to change the theory of the case to require both alternate causes of action be proven in combination, that the was sufficient evidence of notice that required a jury, rather than a judge's decision, and that the judge had wrongly excluded evidence of similar incidents on other ships, which would have increased the weight of the favorable evidence. The case was taken under advisement.

      In the West Virginia case, Peck is challenging the constitutionality of a statute that restricts advertising by lawyers concerning medication and medical device cases. On March 13, he filed a motion for a preliminary injunction. Today, he filed a reply brief, arguing that the state Attorney General's office, failed to provide a reason to deny the injunction. The Attorney General was supported by amicus briefs from the U.S. Chamber of Commerce and the West Virginia Medical Association. The motion will be heard June 23.

      Finally, Peck filed a reply brief in support of a stay pending appeal in the Volkswagen emissions MDL case in San Francisco. Peck is counsel in the appeal and asked the court not to assess attorney fees against the plaintiffs when the verdicts they obtained may change.