News

     The Fifth Circuit today held that a federal district court in Louisiana correctly found that it had personal jurisdiction over China National Building Materials Company and its subsidiaries in the long-running multi-district litigation (MDL) over defective Chinese-manufactured drywall that was used to rebuild homes in the aftermath of Hurricane Katrina. CCL's Robert S. Peck, working as of counsel to Herman, Herman & Katz of New Orleans, argued the case in February.

      Finding that the District Court made no error in its analysis, the Fifth Circuit held, per curiam in a non-precedential decision, that it was affirming for the reasons stated by the District Court. At issue in the appeal were cases consolidated in the MDL from Louisiana, Florida, and Virginia. A settlement that included most of the cases became final after the oral argument and eliminated as moot the Virginia cases. The Fifth Circuit also found itself bound by its acknowledgement that Florida state courts had held that there was an agency relationship between the parent and subsidiary companies. The district court had found that, under Louisiana law, the parent company and its subsidiaries were engaged in a single business enterprise. 

     The U.S. Court of Appeals for the Ninth Circuit ruled today that local government units that sued oil companies have the right to proceed in their cases. CCL, with Gerson Smoger & Associates, filed amicus briefs in support of the plaintiff-governments in both cases on behalf of Senator Sheldon Whitehouse.

     In County of San Mateo v. Chevron Corp., the Ninth Circuit affirmed a decision of the federal District Court, remanding the case to state court. Chevron and its oil company co-defendants argued that they qualified as federal officers, so that the case was properly heard in federal court. They also argued that the case arose under federal law, even though the plaintiffs had pleaded state public nuisance claims. The Ninth Circuit agreed with the District Court that the oil companies did not qualify as federal officers. It also held that it had no jurisdiction to reach Chevron's other grounds for removal because the company only had a right to appeal the federal-officer ruling.

     In City of Oakland v. BP, the Ninth Circuit reversed a U.S. District Court decision that dismissed Oakland's case for failure to state a claim and found it had jurisdiction. The Ninth Circuit disagreed, finding the complaint proper and the jurisdictional ruling wrong. It remanded the case for consideration of other jurisdictional arguments BP and its co-defendants made that had not been reached by the lower court.

     On May 21, CCL filed its brief opposing certiorari in the Supreme Court in Airbus Helicopter, Inc. v. Riggs, arguing that no issue of great national importance or any circuit conflict presented itself in the Ninth Circuit's favorable ruling to the client CCL shares with co-counsel Robb & Robb of Kansas City.

     The case involves the death of a tourist, who suffered fatal burns when the tour helicopter on which he was a passenger made an emergency hard landing and burst into flames. A complaint filed in Nevada state court alleged that the helicopter was defectively designed because it lacked a crash-resistant system, now standard, that would have prevented the fire. 

    Airbus, manufacturer of the helicopter, removed the case to federal court, claiming that it certified the airworthiness of the helicopter as a official designee of the Federal Aviation Administration, making it the equivalent of being an officer of the federal government. The plaintiffs successfully moved to remand the case from federal to state court, supported by the defendant helicopter tour company, but Airbus appealed. The Ninth Circuit, however, affirmed the remand order of the U.S. District Court. Airbus then petitioned for certiorari. Thursday's filing, opposing certiorari on behalf of the plaintiffs, was again supported by the Nevada-based defendants. 

    Airbus will have an opportunity to reply to the two briefs in opposition, after which the Supreme Court will vote on whether to take the case. A decision on the certiorari petition is expected in June.

     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.

     The New York Court of Appeals today granted CCL's motion for leave to file an amicus brief on behalf of the American Association for Justice in Daniels v. Beemiller, Inc.

      The case involves a lawsuit by the estate of a man killed when he was mistaken for a gang member by a rival gang. The gun had been purchased at an Ohio gun show as part of a lot by an illegal gun dealer. The distributor selling the guns was licensed, but knew the purchaser was not and that the purchaser was taking the lot to New York for resale. The sale violated the 1968 Crime Control Act, which requires sellers to assure that the buyers are not taking the guns across state lines or are otherwise eligible to sell the guns in the destination state. The amicus brief argues that the federal statute supplies the state interest that justifies the exercise of jurisdiction, a requirement described by the U.S. Supreme Court in its most decision on personal jurisdiction, Bristol-Myers Squibb v. Superior Court.

     The distributor-dealer in the case objected to the AAJ amicus brief, arguing that it added nothing to the case and urging the court to deny leave. The court nonetheless granted leave. The case will be argued in Albany on March 20. 

   In a case in which CCL prevailed in the Seventh Circuit, Burmaster v. Herman, Brian Burmaster filed a pro se petition for certiorari in the U.S. Supreme Court. The petition argues that his case was not frivolous, as the magistrate judge found in the Eastern District of Wisconsin, but ignores the Seventh Circuit's affirmance on the alternative ground that there was no jurisdiction over the case.

    Burmaster's petition is one of several he has filed against various people and corporations. He further asserts that he has an international lawyer who is pursuing remedies in international judicial arenas.

    By waiving its right to file an immediate brief in opposition to cert, CCL can move the case forward more quickly and reach a final disposition.

    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 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 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.

     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.