News

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.

Eighth Circuit Rejects Rehearing Petition, Preserves CCL Victory

August 29th, 2018

      WIthout an opinion, the EIghth Circuit denied a petition for rehearing or rehearing en banc filed by Arkaansas Judge Wendell Griffen, who sought review of a July ruling that ordered a federal district court to dismiss all claims he had made against the Arkansas Supreme Court and its justices. CCL represented the court, its chief justice and two of the associate justices in the litigation. The chief judge of the Eighth Circuit did not particpate in the decision, and one judge would have granted the petition.

      Griffen's lawsuit alleged a violation of his constitutional rights when the state supreme court ordered him recused from death penalty cases after he issued an order in one immediately after particpating in an anti-death penalty rally.  Griffen's lawsuit contended that he had a free-speech right to speak out against the death penalty and was religiously compelled to do so, but CCL argued that the due process rights of the litigants took precedence over the judge's rights so that his exercise of those rights did not require that he be allowed to preside over cases in which he had demonstrated potential bias.  The Eighth Circuit agreed and ordered the case dismissed. 

     Counsel for Judge Griffen has indeicated he will seek review of the decision in the U.S. Supreme Court.

CCL Writes Response to Wells Fargo Request for Appellate Certification

July 27th, 2018

     After a federal district court in San Francisco held that statistical evidence can satisfy the proximate cause requirement for a Federal Housing Act pleading and Wells Fargo moved to certify the question to the Ninth Circuit for immediate appellate review, CCL drafted and filed a brief in opposition to the motion.

     In City of Oakland v. Wells Fargo & Co., U.S. District Court Judge Edward Chen held that the proximate cause standard mandated by the FHA could be met by statistical analysis, as Oakland put in parts of its complaint and could, with an amended complaint, attempt to meet for other claims. Wells Fargo, which insists that proximate cause can never be met, filed a motion, asking the court to certify the question for immediate appeal.

    In response, CCL argued that Wells Fargo's motion failed to meet the criteria required by statute for a case to depart from the usual course of appeal only after final judgment. The matter is now under advisement.

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 Files Eleventh Circuit Appeal for Miami Gardens Lawsuit Against Wells Fargo

July 25th, 2018

    CCL has filed an appeal on behalf of the City of Miami Gardens in their case against Wells Fargo & Co., alleging the bank had engaged in a continuous pattern of discriminatory lending in violation of the Fair Housing Act.

   Miami Gardens filed the case in 2014. It had been put on hold for a period of time while the U.S. Supreme Court decided whether cities have standing to bring these FHA actions, a case argued successfully by CCL's Robert S. Peck. 

   In granting summary judgment for Wells Fargo, the District Court found the bank's expert more credible than the City's expert, but also appeared to misunderstand the data presented. Summary judgment is supposed to be available to a party only when facts are not in dispute. When expert evidence is in conflict, summary judgment is normally denied so that a jury can evaluate the credibility and weight of the evidence. The judge shortchanged that process, according to CCL's presentation of the issues in the civil appeal statement. 

CCL Files Reply Brief on Iqbal/Twombly Issue in Ninth Circuit

July 23rd, 2018

     In a case where the federal trial judge ruled that the plaintiff's claim for a defective medical device survived a preemption challenge but still dismissed the case over a failure to sufficiently allege causation, CCL filed its reply brief, explaining that the complaint satisfied even the most rigorous causation pleading requirements despite being at a disadvantage because further details were only available after discovery could take place.

     In Martin v. Medtronic, Inc., the plaintiff suffered through five years of debilitating pain because the pain medicine dispenser implanted into him had constant cycles of over- and under-infusion due to manufacturing defects. When his physician received permission to replace the device with a newer model, the illnesses that afflicted the plaintiff immediately ceased. The problems the plaintiff suffered mirrored those identified in warning letters, recalls, and inspections from the FDA, demonstrating the causal connection needed to state a valid claim. Nonetheless, the District Court insisted on even greater specificity to survive a motion to dismiss. This, the CCL brief on behalf of the plaintiff, was error.

CCL President Participates in Think Tank Board Meeting

July 21st, 2018

     CCL President Robert S. Peck participated in the July 21 meeting of the advisory board to the Civil Justice Research Initiative, a joint project of the law schools at the University of California at Berkeley and at Irvine. Chaired by Berkley Law Dean Erwin Chemerinsky, the Initiative focuses its research work on access to justice issues.

     The July meeting, among other issues, considered further outreach from its April symposium at Berkeley on "What's Happening in Federal Court," an outgrowth of research by University of Connecticut professors Alexandra Lahav and Peter Seigelman, which explored a precipitous decline in plaintiff win rates in federal court. Peck participated in the symposium as both a moderator and a panelist.

     The next CJRI symposium will take place on September 28 and explore legal issues surrounding gun violence.

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.

CCL Responds to Supplemental Authority in Colorado Cap Challenge

July 17th, 2018

     CCL, along with co-counsel, filed a response to supplemental authority filed by the defendant in a Colorado case that challenges that state's medical malpractice cap, which was argued last October. In Smith v. Surgery Center, a patient went into the medical facility for a steriod injection, but left paralyzed from the waist down and transforming her husband into a round-the-clock caregiver. After a trial, the jury awarded the couple nearly $15 million in damages. While the defendant facility has challenged their liability, they have also invoked the Colorado damage cap, which limits medical malpractice damages to $1 million, no more than $300,000 of which may be for noneconomic compensation.

      In defense of capped damages, the Surgery Center notified the Court of a recent decision by the Wisconsin Supreme Court, which upheld that state's limits on medical malpractice non-economic damages and overturned a 2005 decision of the same court that invalidated a prior similar damage cap. In the response drafted by CCL, Plaintiffs pointed out that their only citations to the prior Wisconsin case was for unassailable factual propositions that were unaffected by the new case. They further pointed out that the dissenter in the 2005 case wrote the new decision, making the same points that did not command a majority of the court in 2005.

      As a result, CCL argued, the new case merely reflects a change in membership on the court and not the development of new reasoning. As Justice Thurgood Marshall once wrote: "It takes little detective work to discern just what has changed since this Court decided [the prior case]; this Court's own personnel." That is an illegitimate basis for overturning a previous decision, because, as Justice Potter Stewart wrote, it "invites the misconception that this institution is little different from the two political branches of the Government."