News

     One day after the Eighth Circuit indicated interest in the Petition for a Writ of Mandamus on behalf of justices of the Arkansas Supreme Court, CCL, on behalf of the seven justice of that court, filed a motion to stay discovery pending resolution of the justices' petition. 

     The federal judge presiding in the case had previously granted a temporary stay while the justices' motion to dismiss was pending. The current motion seeks the same treatment.

     A week after CCL filed a Petition for a Writ of Mandamus, the U.S. Court of Appeals for the Eighth Circuit ordered opposing counsel to file a response in the ongoing litigation between a state trial judge and members of the Arkansas Supreme Court. 

     The judge had sued the state's highest court and its justices, challenging a recusal order issued by the Supreme Court after the judge had participated in two public protests and commented in a personal blog on matters that came before him. The Arkansas Attorney General moved for the judge's recusal, and the Court granted it, making the reassignment from the cases a permanent one. The judge then sued in federal court, arguing that his rights were violated by the recusal order.

     In response to a motion to dismiss filed by CCL, the federal court dismissed the Arkansas Supreme Court from the action, holding that it was ineligible to be sued due to sovereign immunity. The judge, however, allowed the case to continue with the justices as defendants, which prompted a joint petition for mandamus. Mandamus is considered an extraordinary remedy, and opposing counsel does not need to respond to it unless requested by the appeals court. Here, the court did just that, requiring a response as soon as was convenient. That order is considered a good sign that the Eighth Circuit could take up the request for mandamus.

     CCL argued that a but-for standard is the appropriate requirement for proximate cause under the Fair Housing Act (FHA) in a brief filed in the Eleventh Circuit in the consolidated cases of City of Miami v. Bank of America Corp. and City of Miami v. Wells Fargo & Co. CCL represents Miami in this remand from the U.S. Supreme Court in a case argued by CCL President Robert S. Peck and decided a year ago.

     The Supreme Court held, 5-3, that Miami had standing to bring a private enforcement action under the Fair Housing Act, affirming the Eleventh Circuit's unanimous decision. However, it held that the Eleventh Circuit had relied upon too lenient a standard -- foreseeability alone -- in deciding whether Miami's injuries were legally caused by the Banks' discriminatory lending practices. It sent that issue back to the lower courts for a determination of the "contours" of the proximate cause requirement and what side of the line the City's injuries fell.

      The Eleventh Circuit ordered simultaneous briefing by the parties. CCL's brief on behalf of Miami argued that an Eleventh Circuit decision, as well as decisions under other federal statutes, supported the but-for approach, which holds causation to exist as long as the violation is a substantial or significant contributor to the injuries. It further argued that Congress had ratified the types of injuries that Miami claimed in its 1988 amendments to the FHA by endorsing the "broad holdings" of two cases that claimed damages indistinguishable from Miami's.

      The Eleventh Circuit will now decide whether to entertain oral argument on the issue.

      Today, CCL filed a Petition for a Writ of Mandamus in the U.S. Court of Appeals for the Eighth Circuit, asking the court to throw out the remaining aspects of a state trial judge's challenge to the recusal order of the Arkansas Supreme Court. The federal appeals court has discretion about whether to take up the writ.

      The case began when Judge Wendell Griffen sued the Arkansas Supreme Court and each of its justices after that court ordered the judge permanently recused after he had participated in political protests and written blog posts related to a case before him. When a party to that action, the State of Arkansas, filed an emergency motion to vacate the temporary restraining order Judge Griffen ordered and sought his recusal, the Arkansas Supreme Court granted the motion.

      Judge Griffen filed a Section 1983 action, asserting a violation of his civil rights, in federal court, relying on freedom of speech, the free exercise of religion, due process, and equal protection. CCL represented the Arkansas Supreme Court, its chief justice, and two other justices. The remaining justices were represented by other counsel. All defendants moved to dismiss. The U.S. District Court dismissed claims against the Arkansas Supreme Court, but found claims against the justices in their official capacities sufficiently plausible that those claims were permitted to move forward. Immediately after the District Court's order, Judge Griffen sought discovery related to the justices' internal deliberations on the recusal motion.

     CCL, on behalf of all defendants, filed the Petition to review the partial denial of the motion to dismiss. It argues that mandamus is an appropriate remedy to prevent disruption of the Arkansas Supreme Court's functions through an intrusive set of discovery inquiries and depositions that are privileged. At the same time, because Judge Griffen has no right to preside over any particular case, his claims fail to state a cause of action.

      Federal Judge James Moody Jr. today dismissed a lawsuit filed by a state trial judge against the Arkansas Supreme Court. Declaring that the Eleventh Amendment barred lawsuits against an arm of the state, like the state supreme court, without its consent, the judge dismissed the state high court from the lawsuit. He further held that a state statute intended to protect religious liberty did not constitute a waiver of sovereign immunity to permit other claims against the court to go forward in the case.

     The case was brought by Arkansas Judge Wendell Griffen after the Supreme Court ordered him recused from cases involving the death penalty after he had participated in a public protest on the death penalty and had blogged about capital punishment. At the time of the order, Judge Griffen was presiding over a case in which the death penalty was at issue. The state attorney general made an emergency motion to the Supreme Court, seeking Judge Griffen's recusal.

     Judge Griffen also sued each of the seven justices of the court in their official capacity. The federal judge declined to dismiss the claims brought under federal civil rights law against the justices, stating that he would not consider facts outside the four corners of the complaint at this early stage of the case.

     CCL represents the Arkansas Supreme Court, its chief justice, and two of the other justices, while the remaining justices are represented by other counsel.

     In a case in which CCL President Robert S. Peck represents the Arkansas Supreme Court, its chief justice and two of its other members, the U.S. District Court for the Eastern District of Arkansas granted Peck's motion to stay discovery pending a resolution of his client's and the other justices' motion to dismiss the case. 

     The case was brought by an Arkansas state trial judge, Judge Wendell Griffen, asserting a violation of his civil rights when the state's highest court ordered him recused after he had participated in a political protest concerning a matter he was then presiding over. Federal Judge James Moody ordered the stay in response to a motion Peck filed. Judge Moody indicated that he expected to rule on the motions to dismiss filed by all the Arkansas Supreme Court justices in seven to ten days.

     U.S. District Court Judge Anita Brody today denied a motion made by Wells Fargo to amend her previous denial of the bank's motion to dismiss and denied its request that she certify her ruling on proximate cause for immediate review to the U.S. Court of Appeals for the Third Circuit. CCL President Robert S. Peck wrote the brief in opposition to Wells Fargo's motion in the case, City of Philadelphia v. Wells Fargo & Co.

     Last year, in a case Peck argued on behalf of the City of Miami against Wells Fargo and Bank of America, the U.S. Supreme Court upheld Miami's right to bring a case for damages over the banks' Fair Housing Act violations, but asked lower courts to determine the contours of the proximate cause standard to be applied. Judge Brody became the first federal judge to rule on that issue, holding that Philadelphia had at least met the proper standard with respect to its claims of noneconomic damages. Wells Fargo's Supreme Court Counsel Neal Katyal asked the Philadelphia-based court reconsider or certify the question for consideration at the appellate level. Peck's brief argued that the Wells Fargo motion did not meet the statutory criteria. In an order that contained no explanation, Judge Brody denied the motion.

     The case now moves forward with discovery.

  Filing on behalf of the American Association for Justice, CCL argued that apparent manufacturer liability applied to Pfizer Corporation for its labeling of asbestos-based insulation as its own in the case of Rublee v. Carrier Corp., pending in the Washington Supreme Court. 

  Vernon Rublee worked in shipyards beginning in 1965. Insulation that he and coworkers handled contained asbestos, resulting in Rublee's death from mesothelioma. The packages were stamped with the dual logos of Quest and Pfizer, which had acquired Quest. Under the "apparent manufacturer" doctrine, going back a century, a company that places its name on a product as though it were its own should be treated as the manufacturer. Nonetheless, the Washington Court of Appeals rejected application of the doctrine to Pfizer. It instead held that Rublee's employer was a sophisticated purchaser who understood that Quest was the real manufacturer. 

   The AAJ brief argued, however, that the court applied the wrong test. As in much of tort law, the proper perspective was that of the ultimate user of the product. Citing cases where employees were injured by defective products purchased by the employer, courts regularly applied apparent manufacturer liability to the company that had affixed its logo onto the defective tool, regardless of what the employer knew. It further argued that the intermediate appellate court's approach undermined the compensatory and deterrent value of products liability law, which uses a strict liability regime to enable parties innocently injured by the defect to receive compensation and to change manufacturing practices and labeling. In addition, the brief argued that particularly in asbestos cases, which involve injuries that do not manifest for decades after exposure and where the rules regarding statutes of limitation and the discovery of injuries are relaxed because of these latency periods, a user-based rather than purchaser-based rule best serves the objectives of the civil justice system.

    A federal court rejected efforts by Honeywell, Inc. and Ford Motor Company to gain access to documents filed in connection with asbestos-related bankruptcies for use in lobbying efforts connected to asbestos litigation. Instead, as urged in an amicus brief filed on behalf of the American Association for Justice by CCL, the court affirmed a bankruptcy court ruling that restricted the documents' use to litigation purposes.    

     The companies had argued that they were entitled to unrestricted access to the documents for legislative and lobbying purposes. Both companies have defended cases against asbestos liability. Many of the documents they sought in this action, known as In re Motion to Access 2019 Statements, were in closed cases and contained significant personally identifiable information that would have to be redacted if ordered released. Honeywell and Ford argued that either the original plaintiffs or the court itself would have to pay the costs of redaction.

     The U.S. District Court for the District of Delaware rejected these arguments. First, it held that many of the records were restricted under orders that were 14 years old, affirmed on appeal, and not subject to collateral attack at this time. As to other records, the court held that they were subject to privacy protections enacted by Congress in 2005, which created an exception to the presumption that records in bankruptcy cases are public documents. Finally, the court declared that the companies did not seek access to the documents for a proper purpose in claiming that the documents would support their lobbying activities. Instead, the court held that litigation activities served as the only proper purpose for such a motion.

CCL filed a brief opposing Wells Fargo's attempt to take an early appeal in Philadelphia's lawsuit against the banking giant over its discriminatory mortgage practices. In the case, in which CCL is part of a team of lawyers representing the CIty of Philadelphia, the U.S. District Court denied Wells Fargo's motion to dismiss, rejecting three different grounds.

First, Wells Fargo claimed that the city's injuries did not meet the directness test the Supreme Court mentioned but left undefined in CCL's victory in Bank of America v. City of Miami last term. Second, it claimed that the city's injuries fell outside the two-year statute of limitations. Finally, it argued that the city's disparate-impact claims were inadequately pleaded. The court found all three arguments to be without merit. 

Rather than proceed with the case in the usual fashion, Wells Fargo moved to have the district court's order certified for interlocutory review under 28 U.S.C. 1292(b). CCL's brief in opposition filed today explained why the order does not qualify for immediate appeal and asked the court to deny permission.