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As chair of the Board of Overseers of the RAND Institute for Civil Justice, CCL President Robert S. Peck presided over a two-day board meeting in New York, where RAND researchers presented a number of projects still in their early stages.  Among the presentations was an eye-opening demonstration about cybercrime and its societal costs that was developed in a different segment of the RAND Corporation. Board members also had an opportunity to suggest areas of research on civil justice issues where neutral empirical study could be helpful.

The RAND Institute for Civil Justice, based in Santa Monica, California and established in 1979, seeks to make the civil justice system more efficient and more equitable by supplying government and private decisionmakers and the public with the results of objective, empirically based, analytic research. Its research analyzes trends and outcomes, identifies and evaluates policy options, and brings together representatives of different interests to debate alternative solutions to policy problems.

Last week, CCL’s Valerie M. Nannery participated the ABA’s 18^th Annual National Institute on Class Actions in Chicago, IL. The Institute featured speakers from the plaintiffs’ and defense bars, as well as several academics and federal judges. Topics included a review of recent case law developments on class actions, litigating privacy and data-breach class actions, and the Third Circuit’s new “ascertainability” requirement. Members of the Rule 23 Subcommittee of the Judicial Conference Advisory Committee on Civil Rules also attended in the Institute, as well as conducted their own “town hall” style meeting where practitioners offered specific ideas about potential amendments to Rule 23, and asked questions of the subcommittee members.

CCL’s Robert S. Peck and Andre M. Mura represented the plaintiff’s perspective in committee and other meetings during the American Bar Association’s fall meeting of the Tort Trial and Insurance Law Section (TIPS) in California. Both attorneys are members of the TIPS Plaintiffs Policy Task Force, where issues affecting the plaintiffs’ bar were discussed.

In addition, Mura participated in the meeting of the TIPS Appellate Advocacy Committee. Peck attended various meetings of the governing Council of TIPS, on which he serves, co-chaired the ABA/TIPS Committee meeting, and joined the discussions at the Judicial Division/TIPS meeting.

On October 8, the DC Bar Tort Law Section hosted a program entitled, “Life After Stengel: An Update on Preemption Tactics for Drug and Device Lawyers.” The panelists included CCL’s Andre M. Mura, who presented the plaintiff bar’s perspective; Mayer Brown LLP’s Andrew E. Tauber, who presented the defense bar’s perspective; and Ashcraft & Gerel LLP’s Peter Anderson, who moderated. 

CCL’s Robert S. Peck told congressional staffers attending a Supreme Court preview that the term contained no blockbuster cases yet and seemed to have focused on when statutory language is to be given a precise textual meaning or when a rule of reason is to be applied to accomplish congressional intent. One case discussed at the session, sponsored by the Civil Justice Caucus, was Yates v. U.S., where a commercial fisherman was charged with violating the Sarbanes-Oxley Act for destroying undersized fish before he got to port. The Act prohibits the destruction of records, documents and “other tangible things” that are part of an investigation.  The Court must decide whether fish constitute “other tangible things” within the contemplation of the Act. The case recalls last term’s decision in Bond v. U.S., where a woman who painted a toxic chemical onto the mailbox of her neighbor in seeking revenge for having an affair with her husband had been charged with violating the Chemical Weapons Treaty. In Bond, the Court found that the prosecutor had been overzealous in charging the woman with that offense and held that her actions did not amount to use of chemical weapons.

In two other cases discussed at the forum, the Court will decide whether a federal agency’s re-interpretation of one of its regulations requires notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can be applied. 

Representing the Tort Trial and Insurance Practice Section (TIPS) as its senior delegate, CCL President Robert S. Peck successfully presented three resolutions to the American Bar Association House of Delegates during the bar’s annual convention in Boston, winning overwhelming support for the importance of the right to a jury trial, making greater efforts to increase professionalism among lawyers, and promulgating clear and timely procedures for obtaining disqualification of judges who may have an appearance of impropriety.

On August 10, at the end of the first day of the House meeting, Peck moved a resolution that recognizes the fundamental nature of the jury-trial right and opposed its suspension or delay for fiscal reasons.  In arguing in favor of the resolution, Peck quoted a 1986 decision of the Ninth Circuit, that held that “the availability of constitutional rights does not vary with the rise and fall of account balances in the Treasury.” Armster v. U.S. District Court, 792 F.2d 1423, 1430 (9th Cir. 1986). The decision came after the Administrative Office of the Courts advised courts to suspend civil jury trials for fiscal reasons. In recent years, courts have faced severe budgetary restraints.  Several states and localities have responded to the financial crisis by suspending civil jury trials. The resolution urges court systems to find other ways to maintain fiscal integrity. The resolution passed without opposition.

The following day, Peck moved two other resolutions. The first commended the American Civil Trial Bar Roundtable’s “White Paper on Increasing the Professionalism of American Lawyers,” which surveys the many innovative programs conducted around the country to heighten the professional conduct of lawyers, including efforts to encourage greater civility in litigation. The resolution also encouraged those who might consider such programs to look at the White Paper and other sources for ideas.  The second resolution Peck moved on August 11, which had the endorsement of the Conference of Chief Justices (CCJ) and cosponsorship of the ABA Judicial Division, urged states and territories to adopt clearly articulated, transparent and timely procedures to ensure that judges disqualify themselves in instances where conflict or bias or other grounds exist to warrant recusal in order to assure fair and impartial judicial proceedings.  The resolution went on to state that, when a judge denies such a motion to recuse, procedures should exist for review of the decision by an authority independent of the judge who is the subject of the recusal motion. In presenting the resolution, Peck noted that the chief justice of Arizona, as a result of the effort to craft a resolution with the participation of the CCJ, had appointed a task force to fill in gaps in Arizona’s existing procedures.

During the ABA Convention, Peck also participated meetings of the TIPS Council and a special reception held in honor of the Supreme Court Fellows Alumni Association, of which he is a former president.

CCL President Robert S. Peck, made presentations to the Professionalism Committee at the Conference of Chief Justices (CCJ) annual meeting, held in White Sulphur Springs, West Virginia July 20-23.  At the meeting, chaired by Chief Justice Brent Dickson of Indiana, Peck won endorsement of a resolution he authored on judicial disqualification that will be considered at the American Bar Association Annual Meeting in Boston in August.  Peck also presented information about the status of a White Paper on professionalism authored by the American Civil Trial Roundtable.

The Conference of Chief Justices is an organization of the judicial leaders of the highest courts of all U.S. States and territories.  During the meeting, Peck also participated in the meeting of the CCJ Civil Justice Committee, which is examining rules and best practices in expediting civil trials.  As part of that effort, the CCJ has established a task force comprised of judges, lawyers, and law professors to study the issue.  Peck serves as a liaison from the ABA Tort Trial and Insurance Practice Section to the task force, which next meets in November.

CCL President Robert S. Peck addressed members of the National Association of Appellate Court Attorneys (NAACA) at their annual conference, held this year in Savannah, Georgia, on July 9, about issues of access to the courts.  NAACA is a nine-year-old organization that consists of attorneys employed by state and federal appellate courts across the country.  Peck was a speaker as well at NAACA’s 2012 conference on the topic of the constitutionality of tort reform, held that year in Washington, D.C.  In his remarks, Peck reviewed precedent, constitutional issues, and statutory provisions that impel courts to take specific steps to assure that parties can participate meaningfully in their cases, as well as recent U.S. Department of Justice directives implementing Title VI of the Civil Rights Act. One area of concern that NAACA members sought counsel on was obligations toward parties that do not have fluency in English, a growing concern when recent census statistics indicate that 25 million people in the United States do not speak English in their homes and are not proficient in English.

The Florida Justice Association featured CCL President Robert S. Peck as a speaker at its 2014 Convention in West Palm Beach, Florida.  Coming fresh after his victory in the state supreme court in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), which invalidated the Florida cap on non-economic damages in medical malpractice cases involving wrongful death, Peck addressed the case and its meaning at two seminar sessions held on June 11 and 13.  In his remarks, Peck described five myths that defense counsel will propagate to minimize the reach of the decision and why each were inaccurate.

In addition, on June 12, Peck introduced Linda Lipsen, CEO of the American Association for Justice, at the FJA membership meeting that preceded the group's election of new officers. Lipsen talked about the many ways that AAJ supplements the work of the FJA in protecting clients' rights and the civil justice system more generally.

The McCall case is just the latest case that CCL has litigated to help Florida lawyers overcome obstacles that harm better their clients' cases.  Previously, CCL represented the FJA before the Florida Supreme Court after Floridians approved a state constitutional amendment that would have limited contingency fees in medical-malpractice cases, in order to discourage lawyers from taking complex cases. Before the Court was the question whether the limitation was subject to informed and voluntary waiver.  Peck argued that as an individual constitutional right the limit should be subject to waiver.  The Court adopted the argument and ordered the Florida Bar to produce a standard waiver form. In Re: Amendment to the Rules Regulating the Florida Bar - Rule 4-1.5(f)(4)(B), 939 So.2d 1032 (Fla. 2006).

In Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010), CCL represented a Florida family whose entire judgment arising from the negligent death of their father in a nursing home was claimed by Medicare for expenses it had advanced for medical care.  The family had settled the case for available policy limits, which constituted a tiny percentage of the damages they could have claimed.  After the Department of Health and Human Services refused to lower their reimbursement claim or participate in an apportionment in a Florida probate court, counsel for the family started a declaratory judgment in action in federal district court, which ruled in favor of  the federal department.  CCL took the case up on appeal to the 11th Circuit, where it argued that the Department's statutory interpretation lacked the force of law because it had not been subject to review and comment and had placed the family in a Catch-22 situation. The 11th Circuit adopted CCL's argument in full, also characterizing the situation as a Catch-22, and reduced the Department's share of a $50,000 settlement to $455 less attorney fees.

In FCAN v. Bush, 830 So.2d 148 (Fla. 1st DCA 2002), CCL, along with Florida lawyers, challenged a 1999 omnibus tort reform statute, resulting in a circuit court victory, which was reversed on appeal on standing grounds, using a rationale that has now been repudiated.  In Wexler v. Lapore, 385 F.3d 1336 (11th Cir. 2004), and Wexler v. Anderson, 452 F.3d 1226, CCL challenged voting administration that used the excuse of different systems within a single election districts to avoid recounts in extraordinarily close elections.  The lawsuit resulted in a legislative change to the law, adopting the relief sought by the lawsuit.

In addition, CCL has two pending challenges to a Florida statute that authorized ex parte interviews, presuit, with a putative medical-malpractice plaintiff's treating physicians. In 2013, CCL won a decision in the U.S. District Court for the Northern District of Florida, finding the statute preempted by federal law in Murphy v. Dulay, 975 F. Supp.2d 1200 (N.D. Fla. 2013). That decision is currently on appeal to the 11th Circuit, with oral argument scheduled for the third week of August.  A second case in state court in Pensacola adds additional claims, asserting that the law also violates provisions of the Florida Constitution. That case, Weaver v. Meyers, 2013 CA 001714 (Fla. 1st Jud. Cir.), is currently under advisement in a Florida trial court.

Currently, CCL has filed an amicus brief on behalf of AAJ in the Florida Supreme Court in the pending case of Westphal v. City of St. Petersburg, Nos. SC13-1930 & SC13-1976, which raises the question of whether an injured worker who has exhausted his limit on temporary total disability is eligible for permanent total disability benefits.

CCL’s Robert S. Peck served as the moderator for an all-day seminar on Consumer Warranty Class Actions, sponsored by the American Association for Justice at its headquarters June 4.  The seminar covered operation of the Magnuson-Moss Act, challenges to class actions, special issues arising at the certification stage, lessons from the Whirlpool moldy washer litigation, and approaches to settlement.

In his opening remarks to set the stage for the day, Peck talked about how class actions were under the most severe attack since their inception. He noted that these challenges occur through legislative actions, court decisions, press accounts, and rulemaking changes. While the seminar was not designed to address paths through all those thickets, it covered a number of successful strategies in consumer class actions.

CCL has handled a number of appeals in class action and related cases. Currently, CCL’s Lou Bograd is set to argue a case before the Ninth Circuit, en banc, on whether coordination under California’s rules of civil procedure constitute a “mass action” for removal under the federal Class Action Fairness Act. A panel of the Ninth Circuit held that coordination is not the equivalent of attempting to try a case jointly and thus does not qualify for removal.  Bograd’s argument will seek an affirmance of that decision.