News

     After Defendant Wells Fargo filed a denial of rehearing en banc from the Eleventh Circuit in support of its motion to bifurcate discovery, CCL, on behalf of the City of Sacramento, filed a response, pointing out that the denial had no precedential or persuasive impact and that the underlying decision contradicted Wells Fargo's position. In March, CCL argued against the bifurcation motion, which seeks to balkanize the case into small parts that would make it more difficult for the City to prove its allegations against the banking giant, accused of discriminatory mortgage lending. The issue remains pending before the U.S. District Court for the Eastern District of California (City of Sacramento v. Wells Fargo & Co.).

      CCL's Robert S. Peck argued significant cases in the Fifth and Ninth Circuits in February, participated in proceedings in the American Bar Association's House of Delegates, and filed briefs in a number of cases.

       In the Fifth Circuit, Peck argued that the District Court in In re Chinese-Manufactured Dry Wall Litigation, correctly held that the States of Virginia, Florida, and Louisiana had personal jurisdiction over the Chinese parent companies of their manufacturing subsidiary and are properly responsible for the liability in the cases that were consolidated into the Eastern District of Louisiana. Subsequent to the argument, a settlement was finalized, covering the vast number of cases that were part of the appeal. As a result, the parties submitted a joint motion to dismiss the Virginia cases, all of which had settled, leaving the Court to determine jurisdiction with respect to a handful of cases from Florida and Louisiana, where plaintiffs were not part of the settlement.

     In the Ninth Circuit, Peck argued that the City of Oakland, California had sufficiently alleged proximate cause to survive a motion to dismiss its Fair Housing Act claim against Wells Fargo, which it accused of discriminatory mortgage lending. The District Court had agreed with Oakland. Since that trial-level decision, the Eleventh Circuit had made a similar ruling permitting Miami, Florida to proceed in cases against Wells Fargo and Bank of America.

     After the banks petitioned the Supreme Court for further review and Miami had opposed in briefs written by Peck, the City decided to dismiss its cases. After Peck filed a suggestion of mootness with the Supreme Court, the Court granted the petitions and vacated the Eleventh Circuit's decision. The Ninth Circuit then requested and received supplemental briefs from Peck and from Wells Fargo on the significance of the decision vacating the Eleventh Circuit's decision. Peck argued that the decision still has the same persuasive value it had before being vacated and was the correct determination.

     In addition to these arguments, Peck presented a resolution at the ABA House of Delegates meeting in Austin, Texas, where the ABA endorsed the idea of "incorporating" the Seventh Amendment, the process by which the Supreme Court has applied portions of the Bill of Rights to the States. In recent years, the Supreme Court has shown renewed interest in the incorporation process, incorporating the Seventh Amendment's right to bear arms and the Eighth Amendment's prohibition against excessive fines. This term, it is considering incorporating the Fifth Amendment's unanimous jury-trial rule. The only amendment wholly unincorporated are the Third Amendment's ban on forced quartering of troops and the Seventh Amendment's right to jury trial. Peck also played a key role in the shaping and consideration of other resolutions at the meeting.

     The City of Philadelphia and Wells Fargo resolved the city's Fair Housing Act (FHA) lawsuit against the bank with an agreement that channels $10 million in grants toward sustainable housing opportunities for the city's low- and moderate-income residents. CCL was part of Philadelphia's legal team in the case.

      Under the agreement between the city and Wells Fargo, the bank will provide $8.5 million in grants for down payments and closing costs for homes purchased in the city by income-eligible individuals and households. Another $1 million will go to city-designated non-profit organizations as part of a foreclosure-prevention program. Finally, $500,00 will help fund the city's land care efforts to revitalize abandoned properties that largely were the subject of foreclosures. Philadelphia will also run a program, "Understanding Philadelphia," for Wells Fargo employees.

     The lawsuit was filed in May 2017 under a tolling agreement between the parties, after CCL, representing the City of Miami, prevailed in the U.S. Supreme Court on the issue of municipal standing to bring actions like this under the FHA. Wells Fargo, nonetheless, sought dismissal of the Philadelphia case, arguing that the city could not meet the pleading standard applicable to the FHA to show its injuries were proximately caused by Wells Fargo. CCL briefed and successfully argued that the relevant standard had been met, as well as successfully opposed interlocutory appeal of that issue. As a result, Judge Anita Brody of the U.S. District Court for the Eastern District of Philadelphia ordered the parties to mediation, where the current agreement was hammered out and the case dismissed.

     Wells Fargo continues to pursue its proximate cause argument, having petitioned the U.S. Supreme Court to review the Miami case again after CCL prevailed on the issue in the Eleventh Circuit. CCL's brief in opposition is due in late January.

     CCL filed an amicus brief today on behalf of six U.S. Senators in the climate change litigation brought by Oakland and San Francisco against a number of major oil companies. The case is pending in the U.S. Court of Appeals for the Ninth Circuit, after a federal district court dismissed the litigation based on a determination that the issue requires resolution in the U.S. Congress.

     Senators Sheldon Whitehouse (D-RI), Dianne Feinstein (D-CA), Richard Blumenthal (D-CT), Mazie Hirono (D-HI), Edward Markey (D-MA), and Kamala Harris (D-CA) argue in the brief that the defendant companies' argument that climate change should be addressed but by the Congress or Executive Branch is disingenuous because the companies have a long history of opposing action by the legislature or by federal agencies and use their political clout against against action on the issue or candidates favoring action. The brief details the myriad ways that the defendants have impeded progress on this incredibly important issue and urges the court to treat the defendants' pleas for a different forum as pretextual and an attempt to assure that no forum confronts the issue.

     The brief also points out that federal courts have a "virtually unflagging obligation" to exercise the jurisdiction given them under a 1976 Supreme Court precedent, Colorado River Water Conservation Dist. v. United States. Moreover, the cities have claimed a real injury proximately caused by the defendants that will not be otherwise remedied without a court's willingness to hear their case.

     The Ninth Circuit is expected to hear oral argument in the dispute later this year.

   Today, CCL filed an amicus brief for Senator Sheldon Whitehouse (D-RI) in the Ninth Circuit appeal of several California counties and a municipality seeking to hold several oil companies liable for the impact that climate change has had on their communities. 

   The Whitehouse amicus brief specifically responds to a brief previously filed in support of the defendants by the U.S. Chamber of Commerce. The Chamber, claiming to be steadfast in its support for a response to climate change, urged the Ninth Circuit to reverse the District Court and treat the issue as a political question more appropriate to being addressed in the executive and legislative branches. Today's filing points out that the Chamber has consistently opposed climate change policies in the two other branches of government and suggests that the Chamber's amicus brief be discounted because its funding sources are not transparent.

     As part of the team representing the plaintiffs, CCL filed a brief opposing Fiat Chrysler's motion to overturn a jury verdict against them over a vehicle that violated California's lemon law. The jury awarded the cost of the vehicle and $500,000 in punitive damages.

     The trial had centered on the failure of the car's TIPM module, which delivers electricity throughout the car. Its failure, a persistent problem that Chrysler vehicles suffered over a number of years, resulted in the car failing to start or stalling out. The record showed that, although Fiat Chrysler knew about the problem before the family bought the vehicle in question, it failed to warn consumers about the problem.

     Fiat Chrysler argued in its motion that the evidence was insufficient for a jury to find liability and support punitive damages. The brief supports the verdict by demonstrating that ample evidence to support the verdict and that the punitive damages do not violate due process.

     CCL President Robert S. Peck urged the Eleventh Circuit to reverse a decision dismissing a civil rights case brought against a Georgia state prosecutor by a person imprisoned for seven years before being exonerated by DNA evidence through the Innocence Project.

     Douglas Echols lost his military pension and family, and suffered repeated assaults in prison after being convicted of kidnapping and rape. He maintained from the beginning that he was a victim of mistaken identity. The Innocence Project obtained permission to test his DNA and brought forth evidence that supported Echols's claim. The state crime lab confirmed the results. A state court then determined that Echols could not have been convicted if the evidence and the prosecutor entered a nolle prosequi, guaranteeing that the state would not indict him again.

     The Georgia legislature, after the state claims advisory board twice unanimously recommended that he be compensated at the level of $1.6 million, took up a bill that would have provided Echols with that compensation for his wrongful conviction. However, the original prosecutor in his case wrote legislators that Echols was guilty and that he was still under indictment, which was palpably and knowingly false. The legislators dropped the bill. 

     Echols sued the prosecutor for interferring with his right to petition, retaliating against his pursuit of his First Amendment rights, and undermining the obligatory  and constitutionally protected presumption of innocence that he had won back in violation of substantive due process. After sitting on the case for nine years, and only after being ordered by a writ of mandamus to decide the matter, the U.S. District Court judge dismissed the case, finding that Echols had no rights and that the prosecutor was immune from suit.

     Before the U.S. Court of Appeals for the Eleventh Circuit, Peck argued the District Court was wrong on all counts. Contrary to the judge's holding, the letter violated rights a prosecutor should have understood by putting forth false information intended to interfere with and burden Echols's petition right, that the presumption of innocence applies to compensatory claims as the U.S. Supreme Court held in 2017, and that the assertion that Echols was still under indictment amounted to the type of intimidation that courts universally find actionable. For those and other reasons, immunity did not apply to the prosecutor.

     The case is now submitted and under advisement.

    In a writ filed on behalf of five justices of the Arkansas Supreme Court, CCL asked that Court to order the dismissal of formal ethical charges filed by a panel of the Arkansas Judicial Discipline and Disability Commission (JDDP) against all members of the Supreme Court. The writ, filed in the Supreme Court, which has supervisory responsibility over the Commission and all state courts, asserts that the Commission lacked jurisdiction over the decision by the Court to order Judge Wendell Griffen recused from all cases involving capital punishment. Because of their own conflict of interest, all members of the Supreme Court have recused themselves in this action. Temporary justices will be appointed by Arkansas Governor Asa Hutchinson.

    Judge Griffen filed the complaint against the justices, claiming that they violated his due process rights in issuing their recusal order and not providing him with sufficient time to respond. The U.S. Court of Appeals for the Eighth Circuit had ordered Judge Griffen's federal case against the supreme court and its justices dismissed, holding that no due process rights were violated and that Judge Griffen does not have a right to preside over any particular case or category of cases. The JDDP charges come to a different conclusion, but fail to identify a rule of judicial conduct that the justices might have violated. The JDDP's own rules indicate that, absent fraud, corrupt motive, or bad faith, the JDDP has no jurisdiction over legal decisions made by a judge -- and the recusal order was made in response to a motion in a pending case.

     In an amicus brief filed on behalf of the American Association for Justice, CCL argued that Honeywell and Ford Motor Company had no basis to seek reversal of a federal district court that denied them access to personal information in asbestos filings to which they were not a party.

    The case, In re ACandS, Inc., is pending before the U.S. Court of Appeals for the Third Circuit and involves a challenge to a court order that denied the companies access to tens of thousands of asbestos claimant filings so that they may be examined for possible fraud, even though the companies were not parties to the claims. The companies wanted to use the information, which was not part of the public record, for lobbying purposes. Yet, the only allegations of fraud the companies used to support their claim of access were generalized self-serving statements from asbestos defendants and their lawyers, rather proffer than any objective basis for the claim. Instead, the AAJ brief showed why those statements were based on a purposely skewed understanding of claims made to asbestos trusts and the nature of asbestos litigation. 

     The AAJ brief also rebutted the companies' construction of the bankruptcy statute, which provided no right to non-public information, as well as their attempt to claim a First Amendment basis for access to the information.

     Representing the City of Oakland, California, CCL today filed a brief in opposition to a petition for interlocutory review in the Ninth Circuit, filed by Wells Fargo & Co.

     In June, the U.S. District Court for the Northern District of California denied Wells Fargo's motion to dismiss Oakland Fair Housing Act lawsuit against the bank, a motion argued by CCL's Robert S. Peck, along with co-counsel Joel Liberson. Arguing that courts could differ on the issue, Wells Fargo successfully sought certification of the issue from the District Court so that it could petition the Ninth Circuit for early appellate review. Wells Fargo filed its petition September 17.

     In its brief opposing the petition, CCL argued that the case did not qualify for the extraordinary step of an early appeal because any decision by the appeals court was not likely to be determinative of the litigation. Besides, CCL said, the issue that Wells Fargo identified, the level of proximate cause required in an FHA action, is currently pending in the Eleventh Circuit and in the U.S. District Court for the Eastern District of California in a case brought by the City of Sacramento. For that reason, CCL suggested the Ninth Circuit should allow the issue to percolate in other courts and take it up only in the normal course of litigation.

     CCL also represents Sacramento, as well as Miami, which brought the action pending in the Eleventh Circuit.