News

The Consumer Financial Protection Bureau (CFPB) should ban mandatory arbitration in consumer contracts, CCL attorney John Vail told lawyers from state attorney general offices at a symposium at the George Mason University law school.

 “A mandatory arbitration agreement with a class action ban is not a get out of jail free card; it’s a slip $500 to the parole board and get out of jail card,” Vail told the assembled audience, explaining that the clauses have the purpose and effect of suppressing claims.

Mandatory arbitration also undermines democratic values, Vail asserted.  “We are fifty states and one federated nation, each of which made the conscious choice to vest this kind of decision-making in citizen-jurors.  Mandatory arbitration transfers that power to a group of salaried elites.”

Vail emphasized that the CFPB should not hesitate to exercise the power Congress gave it to ban mandatory arbitration clauses in consumer contracts, as “Congress never intended that the Federal Arbitration Act apply to consumer contracts at all.”

The symposium brought together academics and practitioners to discuss how the CFPB might use its powers to alter the balance of power between consumers and businesses.  It was sponsored by the law and economics program at GMU.

The joint Spring Meeting of the ABA’s Judicial Division and Tort, Trial and Insurance Practice Section in Washington, D.C. featured CCL President Robert S. Peck in continuing legal education sessions on Supreme Court practice and on appellate issues.

Peck moderated a conversation about Supreme Court practice with former Solicitor General Paul Clement, former acting Solicitor General Neal Katyal, and Assistant Attorney General Beth Brinkman.  Including Peck, the four Supreme Court practitioners represent more than 100 oral arguments before the Court.  The panelists discussed differences in practicing before the Supreme Court at each stage of the process from other appellate courts. The Supreme Court session took place April 25.

The following day, Peck was a panelist on issues between trial and appellate courts.  In addition to Peck, other panelists included Chief Judge Eric Washington of the District of Columbia Court of Appeals, U.S. Magistrate Judge Jeffrey Cole of the Northern District of Illinois, retired Maryland Judge William D. Missouri, and lawyer Denise Dimascio.  The panel discussed preservation of issues and other issues that come up during an appeal.

CCL President Robert S. Peck told court administrators meeting in Salem, Massachusetts that the law on providing language access in courtrooms under Title VI of the Civil Rights Act and various constitutional provisions remains a work in progress.  Peck spoke on the first day of the four-day First Annual Conference of the Council of Language Access Coordinators, providing an overview of the relevant law and court decisions to guide them in implementation of their responsibilities.  While the requirement of providing court interpreters in criminal cases is well-established as a function of due process and the Confrontation Clause of the Sixth Amendment, an abuse of discretion standard generally governs in civil litigation, Peck said.

On March 12, CCL President Robert S. Peck addressed law students at George Washington University about issues affecting the practice of tort law today, as part of a panel sponsored by that school’s student chapter of the American Bar Association’s Tort Trial and Insurance Practice Section.  Peck spoke from the perspective of an appellate lawyer, who sees the obstacles placed before plaintiffs seeking compensation for wrongful injuries and often challenges the constitutionality of those impediments.  He noted that recent U.S. Supreme Court decisions, particularly in the areas of arbitration and treatment of class actions, have made an already steep climb even more acute.  Others on the panel addressed similar issues from the perspectives of insurance and defense counsel, as well as that of an arbitrator.

CCL President Robert S. Peck addressed students at the University of Michigan Law School about the constitutional flaws in the types of proposals that go under the umbrella of “tort reform,” at a lecture sponsored by the school’s student chapter of the American Constitution Society on February 20.  In his remarks, Peck talked about the false premises underlying tort reform, the various ways in which it seeks to shut the courthouse door, make proof more difficult, and then limit legitimate compensatory recovery.  He called various constitutional provisions bulwarks against the type of one-sided favoritism that undergirds “tort reform,” describing cases that invalidated various restrictions on tort cases under separation of powers and the rights to a jury trial, a complete remedy, equal protection, and due process.

The American Association for Justice features CCL Litigation Counsel Valerie M. Nannery in a continuing legal education webinar on Medicare Secondary Payer issues.  Ms. Nannery discussed cases settled for less than the full value of the claims and how to assure that Medicare’s subrogation rights do not entirely preclude any recovery for the plaintiff, focusing her discussion on current and developing case law in this area, including the decision in Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010), a case in which CCL’s Robert S. Peck was counsel for the plaintiffs. 

On Nov. 29, CCL President Robert S. Peck spoke at an annual Consumer Attorneys of California continuing legal education seminar on the topic of taking a case to trial with an appeal in mind.  Peck emphasized that many cases are likely to result in an appeal and that it is just as important to prepare for that appeal during trial as it is to prepare the evidence for presentation before the jury.

On November 15, 2012, CCL Senior Litigation Counsel Louis Bograd spoke at a mass torts seminar at the Ohio Association for Justice Mid-Winter meeting in Cleveland. Bograd’s speech, entitled Drug and Device Litigation: Understanding and Coping with the Supreme Court's Evolving Preemption Jurisprudence, reviewed the Supreme Court’s preemption jurisprudence over the past two decades with particular regard to its application to products liability claims against the manufacturers of products regulated by the FDA including medical devices, prescription and non-prescription drugs, and vaccines. Bograd advised the audience that attorneys litigating products liability and consumer protection claims involving products regulated by the FDA need to understand the reach and limits of the doctrine of FDA preemption as it applies to each regulated product.

The Supreme Court has handed big business a Get Out of Jail Free card, CCL lawyer John Vail today told the national convention of the Federalist Society, describing rulings under the Federal Arbitration Act that effectively shield large corporations from liability to consumers and employees.

Part of a panel on “The Roberts Court and Litigation Against Big Business:  Too Much, Too Little, or Just Right?” Vail provided an opposing view to panelists who claimed the Court is neutral in its business rulings.

Detailing the history and purpose of the Act, Vail demonstrated how the Court has created law that his little to do with the statute Congress wrote in 1923.  Vail noted that even former Justice Sandra Day O’Connor had found “the Court has abandoned all pretense of ascertaining congressional intent with respect to the Federal Arbitration Act, building instead, case by case, an edifice of its own creation.” 

Vail cited a recent decision by Justice Scalia, which quoted an earlier decision but left out a key word at the end of the quoted sentence.  “The original intent of the Act,” said Vail, “was to make the remedy of specific enforcement available for breaches of arbitration agreements.”  By selective quotation, Vail asserted, Justice Scalia had judicially created a national policy in favor of arbitration, something Congress never intended.

On November 15, CCL President Robert S. Peck co-chaired the Lawyers Committee meeting of the National Center for State Courts (NCSC), held in Washington, D.C.  The meeting discussed various initiatives to protect the courts and their functions during this time of budget crisis.  At a luncheon the following day, Delaware Chief Justice Myron Steele, president of the Conference of Chief Justices (CCJ) and chair of the NCSC Board of Directors, inducted Peck into the Warren E. Burger Society in recognition for “his active and long-time commitment to improving the administration of justice in the state courts and for building public understanding of the need for a strong and independent judiciary.”