Peck Quoted on Constitutional Issues in LA Private Contractor Requirements

February 15th, 2019

    A new ordinance, enacted unanimously, requires private contractors wishing to do business with the City of Los Angeles to disclose whether they do business with or offer discounts to the National Rifle Association (NRA). Yahoo Finance interviewed CCL President Robert S. Peck on the ordinance's constitutionality (|1gbd0nolom).

    Peck explained that disclosure generally does not raise constitutional concerns except where it is likely to cause retribution against the disclosing party or its members. While private contractors have certain First Amendment rights that would prevent a city from discriminating against them because they refuse to support the incumbent political figures, there is a substantial open question about whether a city crosses a constitutional line when it insists on doing business companies that align with a city's public policy priorities, such as those that only use recycled products, Peck told the news source.

CCL Files Amicus Brief for Senator Whitehouse in Climate Change Litigation

January 29th, 2019

   Today, CCL filed an amicus brief for Senator Sheldon Whitehouse (D-RI) in the Ninth Circuit appeal of several California counties and a municipality seeking to hold several oil companies liable for the impact that climate change has had on their communities. 

   The Whitehouse amicus brief specifically responds to a brief previously filed in support of the defendants by the U.S. Chamber of Commerce. The Chamber, claiming to be steadfast in its support for a response to climate change, urged the Ninth Circuit to reverse the District Court and treat the issue as a political question more appropriate to being addressed in the executive and legislative branches. Today's filing points out that the Chamber has consistently opposed climate change policies in the two other branches of government and suggests that the Chamber's amicus brief be discounted because its funding sources are not transparent.

CCL Waives Supreme Court Response

December 27th, 2018

   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.


CCL Defends Jury Award in Products Liability Case Against Fiat Chrysler

December 12th, 2018

     As part of the team representing the plaintiffs, CCL filed a brief opposing Fiat Chrysler's motion to overturn a jury verdict against them over a vehicle that violated California's lemon law. The jury awarded the cost of the vehicle and $500,000 in punitive damages.

     The trial had centered on the failure of the car's TIPM module, which delivers electricity throughout the car. Its failure, a persistent problem that Chrysler vehicles suffered over a number of years, resulted in the car failing to start or stalling out. The record showed that, although Fiat Chrysler knew about the problem before the family bought the vehicle in question, it failed to warn consumers about the problem.

     Fiat Chrysler argued in its motion that the evidence was insufficient for a jury to find liability and support punitive damages. The brief supports the verdict by demonstrating that ample evidence to support the verdict and that the punitive damages do not violate due process.

CCL's Peck Argues Section 1983 Case

November 9th, 2018

     CCL President Robert S. Peck urged the Eleventh Circuit to reverse a decision dismissing a civil rights case brought against a Georgia state prosecutor by a person imprisoned for seven years before being exonerated by DNA evidence through the Innocence Project.

     Douglas Echols lost his military pension and family, and suffered repeated assaults in prison after being convicted of kidnapping and rape. He maintained from the beginning that he was a victim of mistaken identity. The Innocence Project obtained permission to test his DNA and brought forth evidence that supported Echols's claim. The state crime lab confirmed the results. A state court then determined that Echols could not have been convicted if the evidence and the prosecutor entered a nolle prosequi, guaranteeing that the state would not indict him again.

     The Georgia legislature, after the state claims advisory board twice unanimously recommended that he be compensated at the level of $1.6 million, took up a bill that would have provided Echols with that compensation for his wrongful conviction. However, the original prosecutor in his case wrote legislators that Echols was guilty and that he was still under indictment, which was palpably and knowingly false. The legislators dropped the bill. 

     Echols sued the prosecutor for interferring with his right to petition, retaliating against his pursuit of his First Amendment rights, and undermining the obligatory  and constitutionally protected presumption of innocence that he had won back in violation of substantive due process. After sitting on the case for nine years, and only after being ordered by a writ of mandamus to decide the matter, the U.S. District Court judge dismissed the case, finding that Echols had no rights and that the prosecutor was immune from suit.

     Before the U.S. Court of Appeals for the Eleventh Circuit, Peck argued the District Court was wrong on all counts. Contrary to the judge's holding, the letter violated rights a prosecutor should have understood by putting forth false information intended to interfere with and burden Echols's petition right, that the presumption of innocence applies to compensatory claims as the U.S. Supreme Court held in 2017, and that the assertion that Echols was still under indictment amounted to the type of intimidation that courts universally find actionable. For those and other reasons, immunity did not apply to the prosecutor.

     The case is now submitted and under advisement.

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.

CCL Files Third Circuit Amicus Brief in Asbestos Litigation

September 28th, 2018

     In an amicus brief filed on behalf of the American Association for Justice, CCL argued that Honeywell and Ford Motor Company had no basis to seek reversal of a federal district court that denied them access to personal information in asbestos filings to which they were not a party.

    The case, In re ACandS, Inc., is pending before the U.S. Court of Appeals for the Third Circuit and involves a challenge to a court order that denied the companies access to tens of thousands of asbestos claimant filings so that they may be examined for possible fraud, even though the companies were not parties to the claims. The companies wanted to use the information, which was not part of the public record, for lobbying purposes. Yet, the only allegations of fraud the companies used to support their claim of access were generalized self-serving statements from asbestos defendants and their lawyers, rather proffer than any objective basis for the claim. Instead, the AAJ brief showed why those statements were based on a purposely skewed understanding of claims made to asbestos trusts and the nature of asbestos litigation. 

     The AAJ brief also rebutted the companies' construction of the bankruptcy statute, which provided no right to non-public information, as well as their attempt to claim a First Amendment basis for access to the information.

CCL Opposes Interlocutory Review in 9th Circuit

September 27th, 2018

     Representing the City of Oakland, California, CCL today filed a brief in opposition to a petition for interlocutory review in the Ninth Circuit, filed by Wells Fargo & Co.

     In June, the U.S. District Court for the Northern District of California denied Wells Fargo's motion to dismiss Oakland Fair Housing Act lawsuit against the bank, a motion argued by CCL's Robert S. Peck, along with co-counsel Joel Liberson. Arguing that courts could differ on the issue, Wells Fargo successfully sought certification of the issue from the District Court so that it could petition the Ninth Circuit for early appellate review. Wells Fargo filed its petition September 17.

     In its brief opposing the petition, CCL argued that the case did not qualify for the extraordinary step of an early appeal because any decision by the appeals court was not likely to be determinative of the litigation. Besides, CCL said, the issue that Wells Fargo identified, the level of proximate cause required in an FHA action, is currently pending in the Eleventh Circuit and in the U.S. District Court for the Eastern District of California in a case brought by the City of Sacramento. For that reason, CCL suggested the Ninth Circuit should allow the issue to percolate in other courts and take it up only in the normal course of litigation.

     CCL also represents Sacramento, as well as Miami, which brought the action pending in the Eleventh Circuit. 

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 Files Opening Brief in FHA Case

September 25th, 2018

    Arguing that the trial judge misunderstood the evidence and applied the wrong legal standard, CCL filed its opening brief in the U.S. Court of Appeals for the Eleventh Circuit on behalf of the City of Miami Gardens in its fair housing case against Wells Fargo & Co. 

    The case, filed in 2014, alleges that Wells Fargo targeted minority borrowers for more expensive or riskier loans than it offered non-minority borrowers in the municipality beginning in 2004. Several cities around the country have filed similar actions against the bank. The trial court granted the bank's motion for summary judgment, ruling that the city could not demonstrate that the bank had engaged in an FHA violation within the two years preceding the complaint, finding that the two instances identified by the city's expert was not enough. 

    Yet, U.S. Supreme Court precedent holds that a single incident during that period was sufficient to meet the statute of limitations and to apply the continuing violations doctrine. The error was compounded by the court using a summary judgment motion to weigh the evidence and the credibility of the competing experts, a task that is supposed to be performed by the jury. The judge also unreasonably limited discovery to a 31-day period of time and to a scope that violated other precedents, the CCL brief argues. 

    Wells Fargo is expected to file its responsive brief within 30 days.