News

CCL Files Writ on Behalf of Arkansas Supreme Court Justices

October 18th, 2018

    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.

Ninth Circuit Brief Opposes Removal

September 26th, 2018

     In Riggs v. Airbus Helicopter, Inc., a Ninth Circuit brief filed today that CCL worked on with the Robb & Robb law firm in Kansas City, Mo., argues that the U.S. District Court in Nevada correctly ordered remand of a case to state court after Airbus removed it, claiming to qualify as a federal officer. 

     The case involves the crash of an Airbus helicopter that killed a tourist passenger who was going to see the Grand Canyon. When the helicopter landed hard in an emergency, it burst into flames. The passenger later died from the burns. Airbus removed the case from Nevada state court, claiming that its designation by the Federal Aviation Administration to certify the design and airworthiness of its own aircraft rendered it a federal officer and entitled it to defend itself in federal court. The brief argues that mere certification does not entitle the aircraft manufacturer to federal-officer status, as the U.S. Court of Appeals for the Seventh Circuit held. 

CCL Drafts Response to Airbus Motion for Emergency Stay

July 27th, 2018

     CCL drafted opposition to an emergency stay motion filed by Airbus Helicopter Corporation that sought to stave off remand of the case against it from federal to state court.

     The case, Riggs v. Airbus, arises from a helicopter crash that resulted in the death of a tourist on a trip to the Grand Canyon. The helicopter made an emergency landing, but lacking a crash resistant system, the aircraft burst into flames. The tourist died several days later. Suit was brought in Nevada state court, but Airbus removed the case to federal court on the allegation that Airbus was a designated federal agent. The plaintiff, administrator of the estate of the deceased passenger, moved to remand the matter to state court, challenging Airbus's claim of federal officer status. The federal district court agreed with the plaintiff. Before the remand order could take effect, however, Airbus, initiated an appeal and sought a stay of the order in district court.Perhaps fearing that the stay would be denied, Airbus then sought an emergency stay from the U.S. Court of Appeals for the Ninth Circuit. CCL's opposition urged that court to deny the stay, in part, because the delay would harm the case and because Airbus's substantive argument was so thin.

CCL Responds to Stay Motion

July 18th, 2018

     After a federal district court agreed with CCL's arguments that Airbus had no authority to claim that it was a federal officer and remove a state court lawsuit against it to federal court, Airbus has sought a stay of the order remanding the case to its original state court while it appeals the decision to the Ninth Circuit.    

      In requesting the stay, Airbus claimed that it need only raise a substantial issue on appeal, rather than show it likely to prevail, the explicit standard for such stays. It also claimed that no one would be prejudiced by a brief detour to the Ninth Circuit. In response, CCL argued that the standard to support a stay was far more rigorous than raising a substantial issue and that, on average, the Ninth Circuit takes 22 months from the notice of appeal to final disposition of an appeal, according to official federal court statistics. That type of delay would deny the plaintiffs, mourning the death of their son in a helicopter crash, justice and create problems with evidence and witness accounts for a trial that would end up taking place more than two years from the time of this motion. Moreover, if Airbus was not interested in delaying tactics, it would have filed its notice of appeal immediately, rather than insist, as it did, on waiting the full 30 days it is allowed, which has yet to expire.

Federal Court Remands Case to State Court, Rejects Helicopter Manufacturer's Claim to be Federal Officer

July 16th, 2018

      A federal court in Nevada today sent a case growing out of a helicopter crash back to state court after it had been removed by the aircraft's manufacturer, Airbus. Airbus claimed that the Federal Aviation Administration had designated the company as a stand-in for the FAA for certain certifications and supplemental design changes. Under a federal statute that protects federal officers carrying out their duties from unfriendly state courts, Airbus had removed the lawsuit from state court to federal court.

      In briefs written by CCL, the Plaintiffs argued that mere compliance with federal regulations and the authority to "self-certify" does not qualify a private manufacturer as a federal officer for purposes of the removal statute. Philip Morris had unsuccessfully made the same argument in the U.S. Supreme Court in 2007, claiming that when it took over tar and nicotine testing from the Federal Trade Commission and used the same methodology to determine the levels of those chemicals in cigarettes that it qualified for federal officer removal. In 2011, the U.S. Court of Appeals for the Seventh Circuit applied the same reasoning that the Supreme Court did in Watson v. Philip Morris, to hold that Boeing was not a federal officer for removal purposes. 

      In today's decision, Riggs v. Hecker, the U.S. District Court found the Seventh Circuit's decision, Lu Junhong v. Boeing, persuasive and ordered the case returned to state court. 

Federal Court Dismisses LawsuitAgainst Arkansas Supreme Court

April 12th, 2018

      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.

CCL President Re-Joins RAND Institute for Civil Justice Board

March 17th, 2018

     CCL President Robert S. Peck re-joined the Board of Overseers of the RAND Institute for Civil Justice (ICJ) last week, attending its Spring meeting at RAND's headquarters in Santa Monica, California. Peck previously served on the Board from 2004 to 2016, the last three years as chair.

     The ICJ is a think tank that undertakes empirical research designed to make the civil justice system more efficient and more equitable. It is a part of the RAND Corportation, a noted policy research organization with a long history of assisting policymakers obtain the best information available to address issues they face.

     At the Board meeting, Peck suggested that the ICJ undertake new research based on recent U.S. Supreme Court decisions on personal jurisdiction that reduce the ability of plaintiffs to bring all parties responsible for the injuries before a single court at once that could then assess liability and damages. In her dissent in Bristol-Meyers Squibb Co. v. Superior Court, 137 S.Ct. 1773 (2017), Justice Sonia Sotomayor expressed the fear that these decisions will "curtail -- and in some cases eliminate -- plaintiffs' ability to hold corporations fully accountable for their nationwide conduct." Defendant corporations have cited Justice Sotomayor's dissent to claim that that indeed is what the Supreme Court held and intended, and some courts have agreed, holding that plaintiffs must file multiple lawsuits in different states to seek full compensation for their injuries. Research documenting this shift could inform the due-process analysis that undergirds decisions on personal jurisdiction, he said.

CCL Opposes Summary Affirmance in “Snatch and Remove” Appeal

March 16th, 2015

This week, CCL filed a response in opposition to Wyeth LLC, Wyeth-Ayerst International Inc. & Wyeth Pharmaceuticals Inc.’s Motion for Summary Affirmance in a Third Circuit appeal that involves the important and recurring problem some have called “snatch and remove.” In the case, Wyeth LLC, the only non-forum defendant sued in Pennsylvania state court on state law claims, filed a notice of removal the day after CCL’s clients filed their complaint. At the time the notice of removal was filed, no defendant, including the two properly joined in-state defendants, had been served. Many other judges have remanded such cases to state court, seeing the removal before service as gamesmanship meant to make an end run around the “forum defendant rule” in 28 U.S.C. § 1441(b)(2), which was intended to limit removal of cases in which a defendant is sued in its home state. The district court judge in this case denied the plaintiffs’ motion to remand, adopting a broad, literal interpretation of the “plain language” of a portion of 28 U.S.C. § 1441(b)(2), and holding that removal was proper because the forum defendants were not “properly joined and served” at the time of removal.

Although this case presents an important issue of first impression, the defendants argued that the U.S. Court of Appeals for the Third Circuit need not address the propriety of removal, even though the plaintiffs preserved the issue for appeal, and could not immediately appeal the district court’s decision on their motion to remand. The defendants argued that the court should decline to review this substantial issue, and summarily affirm the merits of the district court’s decision granting summary judgment on the merits of the plaintiffs’ claims to the defendants. CCL’s Valerie M. Nannery and Jeffrey R. White filed a response in opposition today arguing that the court of appeals has an obligation to address the legal issues that were preserved for appeal, and that failure to do so will leave the lower courts in disarray, with no guidance from the court of appeals. CCL maintained that summary affirmance is inappropriate in this case because the issues on appeal raise substantial questions on which there is no binding authority from the Supreme Court or the Third Circuit.

CCL Files Opening Brief in Fen-Phen Appeal

March 16th, 2015

On March 10th, CCL attorneys filed their opening brief in an appeal presenting an important issue of first impression, whether an out-of-state defendant can remove a case from state to federal court before the in-state defendants are served. The case originated because the plaintiff developed the deadly disease pulmonary arterial hypertension (PAH) after taking the diet drug Fen-Phen. Plaintiffs sued the manufacturers of Fen-Phen, two of which are Pennsylvania corporations, in Pennsylvania state court on state law claims. The next day, before plaintiffs had the opportunity to serve any of the defendants, the only out-of-state defendant removed the case to federal court. Under Pennsylvania rules of civil procedure, immediate service on a Pennsylvania citizen is not feasible, but service must be made within 30 days of filing. Plaintiffs served the two forum defendants and asked the district court to remand because removal was premature and improper because of the presence of two properly joined forum defendants. The district court denied the plaintiffs’ motion to remand, and would not certify its order for interlocutory appeal.

The case remained in federal court and the defendants filed a joint motion to exclude plaintiffs’ expert evidence that her use of Fen-Phen caused her illness under Federal Rule of Evidence 702 and for summary judgment. The district court held that none of plaintiffs’ expert testimony was admissible because it fell short of Pennsylvania’s requirement that experts opine “to a reasonable degree of medical certainty.” Without admissible evidence as to causation, the court ruled, defendants were entitled to summary judgment.

In the brief filed on Tuesday, CCL’s Valerie M. Nannery and Jeffrey R. White asked the U.S. Court of Appeals for the Third Circuit to reverse the district court’s holding that removal of the case from state court was proper, and to vacate the district court’s determination on the merits because removal was premature and improper under 28 U.S.C. § 1441(b)(2), otherwise known as “the forum defendant rule.” This provision limits the cases that can be removed on the basis of diversity jurisdiction when “any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” When a defendant is a citizen of the forum state, there is no local prejudice to the defendant from litigating in state court.  

Because there were forum defendants who were properly joined in the case, CCL argued, removal before service on any party was both premature and improper under the express terms of the removal statute and its purpose. CCL urged the court to reject a reading of the statute that would provide defendants a way to subvert the forum defendant rule by monitoring state court dockets and immediately filing a notice of removal, thus depriving plaintiffs of their proper choice of forum, and filling federal district courts with cases that belong in the state courts where they were filed.

In the alternative, CCL argued that the district court was wrong in granting summary judgment to the defendants because there was admissible evidence that Fen-Phen caused the plaintiff’s PAH. Hired experts and treating physicians alike each concluded, unequivocally, that the plaintiff’s PAH was caused by her use of the diet drug. On appeal, CCL argued that the district court failed to evaluate each expert’s testimony in its entirety, as required by Pennsylvania law. 

CCL Lawyer Defends Important CAFA Ruling Before En Banc Ninth Circuit

June 23rd, 2014

On June 19th, CCL Chief Litigation Counsel Louis Bograd argued before the en banc 9th Circuit in two consolidated appeals that address an important issue of federal removal jurisdiction under the Class Action Fairness Act (CAFA). Romo v. Teva, Inc. and Corber v. Xanodyne Corp. both arise out of propoxyphene litigation filed in California state courts. No individual propoxyphene suit in California involves 100 or more claimants, but in total more than 1500 plaintiffs have sued the manufacturers and distributors of propoxyphene there. After plaintiffs invoked a California procedure to coordinate the pending cases before a single judge, defendants removed the cases to federal court, contending that plaintiffs' coordination petition triggered the mass action provision of CAFA, which permits removal where the damage claims of more than 100 plaintiffs are "proposed to be tried jointly." To date, every district court to address the issue has concluded that plaintiffs' petition did not propose a joint trial, and a divided 9th Circuit panel agreed. Before the en banc court, Bograd emphasized that the plaintiffs had never invoked the separate procedure under California law for requesting a joint trial and stressed the differences between coordination and consolidation for trial. Bograd also explained to the court that bellwether trials, the manner in which mass pharmaceutical torts are most often litigated, are not binding on the non-bellwether parties and thus do not constitute a joint trial under CAFA. A decision is expected in a few months. 

Even while before the argument, the defendants had filed petitions for certiorari in the U.S. Supreme Court, fearing that a failure to do so would not preserve their appeal under CAFA’s strict timelines.  CCL’s Bograd and Andre Mura filed briefs in opposition to the petitions. On June 30, the Supreme Court denied both petitions, leaving the matter, at this point, to the Ninth Circuit’s en banc panel.