News

CCL Files Local Government Groups' Amicus Brief in First Circuit

September 3rd, 2021

     CCL President wrote and filed a brief arguing that no conception of federal common law justified removal of the State of Rhode Island's case against major oil producers for the in-state consequences of their misrepresentations about fossil fuels. The State had sued the companies on grounds of misrepresentations in state court on state causes of action, but the defendants had removed the case to federal court.

     In this second visit to the First Circuit, which originally held that the oil companies had no claim to federal jurisdiction by asserting that they had done what they were accused of at the direction of the federal government, the appellate court is reviewing other claimed bases for federal-court jurisdiction. This time around, the defendants rely heavily on a claim that because climate change is a global issue, it requires the courts to apply federal common law, rather than state law.

     The amicus brief filed today on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, argued that whatever federal common law may have once existed was displaced by the Clean Air Act, which gives the states a role in combating the local effects of air pollution. States, it further argues, have a right to bring state causes of action in state court, just as any other plaintiff does, subject to the defendants' claims of ordinary preemption, which provides no right to remove a case to federal court.

CCL Files Amicus Brief for Local Government Groups in Eighth Circuit Climate Change Case

August 25th, 2021

     Arguing that state and local governments have the same rights as other plaintiffs to choose state, rather than federal court, a CCL amicus brief asserted that there was no legitimate basis for oil companies to remove a climate-change lawsuit brought by the State of Minnesota to federal court. The brief, on behalf of the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, focuses most heavily on the oil industries' argument that federal common law completely displaced the state causes of action asserted in the case. 

     In June, the U.S. Supreme Court held that a similar action brought by the City of Baltimore required lower courts to review all the claimed bases for federal-court jurisdiction when a defendant asserts that it was acting at the direction of a federal officer, even if that assertion fails as a matter of law. In the Minnesota case, the oil company defendants made that argument but did not seriously pursue it on appeal, emphasizing the other grounds that would permit it to be in federal, rather than state, court. 

     As for the "federal common law" argument, the amicus brief argued that the Clean Air Act displaced any federal common law and explicitly opened the door to state causes of action, such as the ones filed by Minnesota. The amicus brief was filed with the Law Offices of William Rossbach.

CCL Files En Banc Brief Arguing to Overturn 2016 Decision

August 2nd, 2021

     In a supplemental brief filed in the U.S. Court of Appeals for the Fifth Circuit, CCL's Robert S. Peck asked the court to overturn a 2016 decision on personal jurisdiction that stands in the way of litigating seven deaths and 40 injuries to U.S. Navy personnel when a container ship struck the U.S.S. Fitzgerald, a U.S. Navy destroyer in 2017 in the Sea of Japan. 

      The case was originally dismissed in federal district court in New Orleans because the judge ruled that the Japanese company operating the container ship was not subject to personal jurisdiction in the United States because it is not "at home" in this country. On appeal, Peck argued that the "at-home" requirement essentially rendered a federal rule of civil procedure unconstitutional as a product of due process, effectively saying that the Supreme Court and Congress got it wrong when Rule 4(k)(2) was promulgated. A panel of the Fifth Circuit agreed with him, but found that a 2016 precedent was an obstacle to ruling in the sailors' favor under the rule of orderliness. 

     Peck petitioned the Fifth Circuit to take up the matter en banc, where it would have the authority to overrule the errant precedent. The court agreed to do so, and today's filing was a supplemental brief in support of why the precedent should be overruled. Oral argument before the 17 members of the Court is scheduled for September 21. The case is Douglass v. Nippon Yusen Kabishiski Kusen.

Seventh Circuit Vacates Magnuson-Moss Decision, Opens Door to State Court Filing

July 29th, 2021

     In an opinion issued today, the Seventh Circuit held that both it and the district court lacked subject-matter jurisdiction in a putative class action that was filed against Best Buy's Geek Squad Protection Plan (GSPP). 

      The case began when a couple purchased an expensive television set from Best Buy that utilized the now-abandoned plasma technology. Best Buy urged them to purchase the GSPP as an extended warranty and offered a discount on the television set if they did. The couple purchased the GSPP. When the television set failed, Best Buy was unable to repair it, offering instead a refund of the depreciated value of the television or a much cheaper replacement, informing the couple that the GSPP is a service plan, not a warranty as their advertising states.

      The district court dismissed the action, holding that under federal regulations, a warranty cannot require extra payment, and the purchase of the GSPP prevented it from being considered a warranty under the Magnuson-Moss Warranty Act. On appeal, CCL argued for the couple that the regulation had no basis in the statute and allowed Best Buy to misrepresent its service contract as a warranty, precisely the evil that the Magnuson-Moss Act was designed to prevent.

      The Seventh Circuit's decision in Ware v. Best Buy did not address the substance of the arguments, but found that subject-matter jurisdiction was lacking, even though neither party nor the lower court raised the issue. Under Magnuson-Moss, jurisdiction lies in federal court only if a purported class action actually names 100 individual plaintiffs. That was lacking in the complaint. Recognizing the possibility of dismissal on jurisdictional grounds, CCL filed a supplemental brief for the plaintiffs, suggesting both other ways that jurisdiction could be asserted, as well as a request that the adverse district court decision be vacated so the Wares could refile in state courts. The Seventh Circuit took the latter approach.

Fifth Circuit Grants CCL Petition for Rehearing En Banc in Important Personal Jurisdiction Case

July 2nd, 2021

     The U.S. Court of Appeals for the Fifth Circuit has granted a petition, filed by CCL, for rehearing en banc on the application of Federal Rule of Civil Procedure 4(k)(2) to a foreign defendant in an admiralty case. 

     The survivors and family of U.S. Navy seamen had sued a Japanese corporation over a collision at sea that killed seven sailors on a the U.S.S. Fitzgerald and injured forty others. A federal court in New Orleans had thrown the case out, holding that personal jurisdiction was not available in the U.S. courts over the defendant because it is not "at home" in the U.S. On appeal, CCL's Robert S. Peck argued that the decision effectively rendered the rule, approved for precisely these situations, unconstitutional in all its applications because it also requires that any defendant subject to the rule not be within the personal jurisdictional reach of any state court. That provision cancels out the one imposed by the district court as a matter of due process, effectively voiding the rule, which was promulgated at the request of the U.S. Supreme Court.

     A panel of three judges in the Fifth Circuit agreed with Peck's argument, but said that their hands were tied because of a 2016 precedent in the circuit that they believed was wrongly decided. They urged the entire Fifth Circuit to take up the matter in order to overrule the precedent. Peck's petition for rehearing en banc provided the vehicle for that rehearing, while the Japanese defendant opposed rehearing and insisted that the prior precedent was correctly decided. Today's order vacated the panel's decision, set a new briefing schedule, and put the case on the September oral argument calendar.

CCL Files Supplemental Brief in Warranty Action Against Best Buy

June 18th, 2021

     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.

Peck Presents at AAJ Personal Jurisdiction Webinar

May 19th, 2021

     CCL President Robert S. Peck made a co-presentation with attorney Deepak Gupta on the results and meaning of the U.S. Supreme Court's latest personal jurisdiction decision, Ford Motor Co. v. Montana Eighth Judicial Dist. Court. The case, both lawyers agreed, was a marked and welcome departure from the past decade of decisions that had substantially narrowed state-court authority over out-of-state defendants.

     Gupta had argued the case before the U.S. Supreme Court and described his strategy of demonstrating the importance of allowing state courts to hear these cases in which the defendant did regular business for the product that had injured the plaintiffs in the state where they resided. He had also recruited amicus support from state attorneys general and small businesses to demonstrate the breadth of interests affected. Peck had written an amicus brief on behalf of the American Association for Justice. In it, he demonstrated that Ford had maintained a relationship both with the owner of used cars, regardless of the state where the vehicle was first purchased and with the vehicle itself through recalls and other notices. He noted that Ford extensively advertised to car owners to use original manufacturer parts, whether the vehicle was self-serviced, serviced at a dealership, or at an independent car shop, under the slogan, "Keep Your Ford a Ford." The unanimous opinion from the Court, written by Justice Kagan, picked that up from Peck's brief, reciting the slogan in the decision's second paragraph.

Fifth Circuit Orders Opponents' Response in Personal Jurisdiction Case

May 17th, 2021

     In what seems like record time, the U.S. Court of Appeals for the Fifth Circuit ordered a Japanese corporate defendant to respond to the petition for rehearing en banc filed by CCL on behalf of U.S. Navy sailors injured or killed when a container ship operated by the defendant struck the U.S.S. Fitzgerald, on which the sailors served. The petition was filed Friday, and the order of a response came only after the weekend passed.

     The Fifth Circuit warns attorneys and parties that rehearing en banc is disfavored because it saps judicial resources and is rarely granted. However, in this case, the panel that decided the issue made plain that rehearing was in order because the judges in the case felt boxed in by in-circuit precedent that only the entire court, hearing a case en banc, could overturn. The precedent, under what is called the "rule of orderliness," required a ruling against the plaintiffs, but the judges indicated their agreement with the plaintiffs' arguments on why personal jurisdiction under Rule 4(k)(2) of the Federal Rules of Civil Procedure should allow the courts to entertain lawsuits against foreign defendants with substantial and continuous contacts with the United States over a matter related to those contacts, rather than require the foreign defendants also be "at home" in the United States.

CCL Files Rehearing Petition in Important Personal Jurisdiction Case

May 14th, 2021

     CCL filed a petition for rehearing en banc in the federal Fifth Circuit, asking the Court to overturn an in-circuit precedent that erroneously applies a Fourteenth Amendment analysis to a federal case, in which the Fifth Amendment's due-process clause applies.

     In Douglass v. Nippon Yusen Kabushiki Kaisha, two weeks ago, a Fifth Circuit panel affirmed a district court ruling that there was no jurisdiction over the Japanese corporate defendant, but only did so because of the "rule of orderliness," which prohibits one panel of the court from overruling an earlier panel's precedent. The opinion, and a special concurrence by two of the three judges on the panel, made clear that it believed CCL's argument on behalf of the plaintiffs was correct. The plaintiffs are U.S. Navy sailors and their families who sued over deaths and injuries sustained on the U.S.S. Fitzgerald, a U.S. Navy destroyer, when a container ship under the defendant's control crashed into the destroyer's hull.

    In a 2016 case, a panel of the court interpreted due-process requirements to impose a general jurisdiction analysis to Federal Rule of Civil Procedure 4(k)(2), which meant that the Japanese company, despite a century-old presence in the United States, had to be incorporated in this country or have its headquarters here to be susceptible to personal jurisdiction on a federal cause of action brought in federal court. CCL had argued that the 2016 decision was dicta and not precedential and that is was wrong as a matter of law, because, among other things, the due process analysis would render the rule unconstitutional in all conceivable applications. Instead, it argued a national-contacts rule was applicable, as previous Fifth Circuit precedent had held.

    With the filing of the petition asking the entire Fifth Circuit to overrule the wayward 2016 precedent, the court's mandate was stayed. The next step, if the Court decides to consider taking up the matter, is for it to request a response from the defendant.

    CCL's Robert S. Peck wrote the petition and represents the plaintiffs, along with the Koonz McKinney law firm of Washington, DC.

CCL Amicus Brief Provides Important Point in Supreme Court Decision

March 25th, 2021

     The Supreme Court rebuffed efforts by Ford Motor Company to further narrow plaintiffs' options on where they can bring a lawsuit for vehicle defects that result in injury or death in an unanimous decision, relying in part on an amicus brief filed by CCL on behalf of the American Association for Justice (AAJ) and Public Justice. 

     In consolidated cases from Montana and Minnesota, Ford argued that it could not be sued in either state in cases where the vehicle at issue was originally purchased in another state. Instead, it said, plaintiffs were limited to the place of purchase, the place where the car was designed, or the state where Ford has its headquarters, because only those places have a causal link to the alleged defect. The Court, however, rejected that argument, holding that "[w]hen a company like Ford serves a market for a product in a State and that product causes injury in the State to one of its residents, the State's courts may entertain the resulting suit."

    In the AAJ and Public Justice brief, CCL pointed out that Ford encouraged owners of their vehicles to service and maintain the cars with original equipment manufacturer (OEM) parts, whether they bring their cars to dealerships, auto shops, or work on the vehicles themselves. On a Ford owner's website, the company promotes its OEM parts with the slogan, "Keep Your Ford a Ford." Only the CCL-authored brief made this point in the filings before the Supreme Court. Justice Elena Kagan's opinion for the Court adopted the argument, demonstrating that Ford maintained a relationship with the vehicle and with every owner of a Ford through its promotion of those parts and noting the slogan promoted by the company of "Keep Your Ford a Ford." The use of these facts and argument by the Court testifies to the effectiveness of CCL's brief.

     CCL President Robert S. Peck, author of the brief, was quoted by Bloomberg News as saying that the Court's decision was a "step back from the brink" as it arrested a trend of personal jurisdiction decisions dating back to 2011 that increasingly narrowed the eligible jurisdictions for lawsuits against out-of-state companies.