Peck Blog Post Rejects Suggestion to Name Supreme Court Building

November 7th, 2021

     CCL President Robert S. Peck argued against a suggestion to rename the Supreme Court building after the first Justice John Marshall Harlan, a topic of discussion because of an advocacy piece published by Politico. In his biweekly post in the Appellate Advocacy Blog, a part of the law professors blog network, Peck called the suggestion provocative, but ultimately inconsequential because it was unlikely to occur.

     The suggestion by Sarah Isgur, nonetheless, was fun to discuss, Peck said, because it caused some reflection both on the Court and Justice Harlan. Still, he concluded that a building dedicated to the rule of law and not of men should not be named after any individual. Moreover, to Isgur's suggestion that it would help tell the Court's story, Peck said that the Court's story was better told through its decisions. The blog posting can be found at A Provocative Suggestion to Name the Supreme Court Building After a Single Justice.

CCL's Peck Presents Paper at Hastings Law School

November 6th, 2021

     CCL President Robert S. Peck told conference attendees at Hastings Law School in San Francisco to expect a new revolution in products liability because technology changing the relationship between a manufacturer and buyer. The presentation was part of a two-day academic symposiums, "The Internet and the Law: Legal Legal Challenges in the New Digital Age," cosponsored by the Pound Civil Justice Institute and the UC Hastings Center for Litigation and the Courts.

     Peck described today's "smart" or connected products as providing a continuous connection between the manufacturer and the product. Through data retrieval, security updates, and other over-the-air connections that occur without intervention by the user, the manufacturer maintains contact with the device. In many instances, while the purchaser owns the hardware, the software remains in the manufacturer's name and is merely licensed to the user. This co-ownership arrangement, Peck said, has the potential to change standards for personal jurisdiction and reinvigorate strict liability. He further described the historical development of products liability, which has taken several revolutionary leaps in response to changing technology, first with the development of railroads and, most prominently, with the invention of automobiles.

     Papers from the academic symposium will be published in a future issue of the Hastings Law Journal. For more information on the symposium, see The Internet and the Law.

CCL Opposes Motion to Dismiss in First Amendment Case

November 3rd, 2021

     In a brief filed today, CCL argued that the State of Florida's motion to dismiss two counts in a First Amendment challenge it filed should be denied.

      In RAF v. Brown, CCL has challenged the constitutionality of a 2021 state law that prevents roofing contractors from doing anything that might encourage a homeowner to make a claim under the homeowner's insurance policy. The law transparently attempts to keep homeowners in the dark about the coverage that the policy they have paid for might provide. On November 22, CCL will argue in favor of a preliminary injunction on the law.

       Even while that motion for injunctive relief remains pending, the State has sought to dismiss two minor claims relating to whether the law violated the impairment of contracts provision in the U.S. Constitution and one argument against a provision that imputes legal violations of third-parties to contractors. 

       The brief filed today argues that Florida's complaint about the skeletal nature of two sentences in the complaint fails to read the complaint as a whole and the much more substantive description of the claims that becomes evident from that reading. No date has yet been set for argument on the motion for a partial dismissal.

Ninth Circuit Grants Stay of Mandate

November 2nd, 2021

     The U.S. Court of Appeals for the Ninth Circuit granted CCL's motion for a stay of its mandate in City of Oakland v. Wells Fargo & Co

      The case originated in 2015 when Oakland sued Wells Fargo for allegedly giving minority borrowers more expensive and riskier loans than it provided to non-minority borrowers with similar credit characteristics. Oakland, represented by CCL and other lawyers, successfully staved off a motion to dismiss on standing grounds. In 2017, the Supreme Court, in a case argued by CCL President Robert S. Peck on behalf of a similar lawsuit brought by Miami, also held that cities have standing under the Fair Housing Act to bring suits for lost property taxes and increased municipal spending due to discriminatory lending practices. 

      The Court, however, left open the question of what must be pleaded to meet proximate cause and whether Miami's complaint satisfied that standard. Wells Fargo then brought a motion to dismiss in Oakland, arguing that the city failed to sufficiently plead proximate cause. The federal district court found that the Bank was correct as to the damages Oakland claimed from municipal expenditures because the city offered no statistical analysis that might support the claim, but found the regression analyses Oakland included in its complaint sufficient to meet proximate-cause requirements for its lost property-tax claim. 

      Wells Fargo appealed, and in 2020, a three-judge court unanimously held that Oakland had indeed met the proximate-cause standard in its claim for lost property taxes. Wells Fargo then petitioned for rehearing en banc with the Ninth Circuit, and the case was reheard by an 11-judge court. This time, however, the court unanimously held that Oakland could never meet the proximate cause standard that applied because the FHA was only available to direct borrowers, the federal government, and some advocacy organizations as a vehicle for challenging discrimination, a position that seemed at odds with the Supreme Court's 2017 ruling in the Miami case. 

     CCL, on behalf of Oakland, sought a stay of the mandate, which ordered the district court to dismiss the case with prejudice. Today, the Ninth Circuit granted that stay, over Wells Fargo's objection, so Oakland could seek further review in the Supreme Court.

CCL's Peck Participates in ALI Remedies Meeting

October 29th, 2021

     In a member consultative group meeting on proposed changes to the Restatement of Law (Torts) on remedies, the American Law Institute is considering changes that both update and advance the law governing remedies in tort cases. The meeting, in which CCL's Robert S. Peck participated, reviewed the first initial draft of parts of the new Restatement.

CCL's Peck Speaks on MDL Issues

October 28th, 2021

     On a luncheon panel sponsored by the RAND Institute for Civil Justice and the Feinberg Center Risk Management and Compensation, CCL President Robert Peck suggested that new procedural rules for cases assigned by the Judicial Panel on Multidistrict Litigation were not needed, but that some rethinking of the system would help.

     Peck was joined on the panel by University of Connecticut law professor Alexandra Lahav, experienced plaintiffs' MDL attorney Christopher Seegar, Bayer general counsel Scott Partridge, and U.S. District Court Judge Brian Martinotti.

     The panel was organized around the theme of when is an MDL too big. MDLs now constitute more than half the federal docket, in large measure filling a void left by new decisions that discourage the use of class actions. Recent MDLs in the news include lawsuits over opioids, Roundup weed killer, and the BP oil spill.

     While Partridge bemoaned the size of the cases, calling it "bet-the-company" litigation, Seegar advocated allowing some creativity in reaching solutions, giving the example of his work in the NFL concussion litigation. Peck suggested greater use of subclasses and additional judges when MDLs get bogged down due to size and a single presiding judge, as well as recognition of opportunities to allow individualized justice in the context of the aggregation of cases.

     The MDL system was originally intended to clear out common pretrial issues efficiently, but has developed into a means of disposing of the mass of litigation through settlement. Professor Lahav said this was a function of the concept that, if you build it, they will come.

Peck Posts Thoughts on Qualified Immunity

October 24th, 2021

     In his most recent contribution to the Appellate Advocacy Blog, CCL President Robert S. Peck posted a discussion entitled "Qualifying Qualifying Immunity." The blog post discusses two recent U.S. Supreme Court per curiam decisions reinstating qualifying immunity for police officers, as well as CCL's experience with the judge-made doctrine. 

     Despite its long existence, the doctrine of qualifying immunity continues to have uneven application, especially between circuits, and applications that can fairly be described as insensible.

Federal Court Holds Prep Act Does Not Apply to the Non-Use of Countermeasures, Remands Case to State Court

October 22nd, 2021

     In a case in which CCL assisted the Levin Perconti law firm, a federal judge in Illinois granted the plaintiffs' motion to remand the case to state court where the defendant nursing home had removed it to federal court. Martin v. Petersen Health was brought on behalf of a nursing home resident who died as a result of exposure to COVID-19. The defendant removed the case to federal court, claiming that it was acting on behalf of the federal government and that the federal PREP Act completely preempted the cause of action.

     In rejecting both claims, the federal court found that nursing homes were highly regulated but under Supreme Court precedent the homes cannot claim to be operating at the direction of a federal officer by complying with regulations. It further held that the PREP Act provides an exclusive remedy in federal court in Washington, DC for lawsuits based on the administration or use of approved countermeasures during a national health emergency. However, it does not provide a defense for the non-use of those countermeasures, as plaintiffs had pleaded. The court ordered the case returned to state court, where the defendant was free to assert any federal defenses it might have.

CCL Files Opening Brief in Texas Cap Challenge

October 20th, 2021

     In a federal constitutional challenge to the Texas damage cap on noneconomic damages in medical malpractice cases, CCL filed its opening brief, arguing that the Seventh Amendment to the U.S. Constitution was overdue for application to the States and invalidates the statutory limit on damages. 

     Under the Incorporation Doctrine, the Supreme Court has applied selective provisions of the Bill of Rights to the States, starting with the First Amendment's Free Speech Clause in 1925. The pace of incorporation quickened in the 1960s under the Warren Court, but then fell into a period of stasis. However, over the past ten years, the Supreme Court has rediscovered incorporation, starting with gun rights under the Second Amendment. Recent decisions have seen incorporation of the Excessive Fines Clause from the Eighth Amendment and application of the unanimous criminal jury verdict provision in the Sixth Amendment.

      One provision that the Court has not addressed in more than a century is the Seventh Amendment, which preserves the right to a jury trial in civil cases. The CCL brief demonstrates that the Seventh Amendment meets the criteria for incorporation, perhaps more urgently than other provisions.

       The Seventh Amendment establishes that juries are the judges of damages. A legislative revision of its assessment of damages, the brief further argues, interferes with the jury's prerogatives as established at common law prior to the promulgation of the Constitution. The Seventh Amendment constitutionalizes that authority and immunizes it from legislative interference, the brief further contends.

        Simultaneous opposing briefs were filed by the Texas Attorney General, defendant health-care providers, and the Texas Hospital Association. All parties have until December 3 to file reply briefs. The case, Winnett v. Frank, is pending in the U.S. District Court for the Western District of Texas.

CCL Argues Personal Jurisdiction Issue Before En Banc Proceeding in the Fifth Circuit

September 21st, 2021

     CCL President Robert S. Peck told an en banc panel of 17 judges in the Fifth Circuit that the application of an "at-home" requirement as a matter of due process renders Federal Rule of Civil Procedure 4(k)(2) a nullity and unconstitutional in all its applications during oral argument in Douglass v. NYK Line. A federal district court in New Orleans had thrown the case out because it held that a 2016 precedent in that circuit had added the "at-home" requirement. After a panel upheld the ruling based on that precedent but urging the Court to rehear the case to reconsider the 2016 ruling, the court granted a petition to rehear en banc to do just that.

     The case arose after a larger container ship operated by a Japanese company struck a U.S. Navy destroyer in the Sea of Japan, resulting in the deaths of seven U.S. sailors and injuries to 40 others. Representing the injured parties, along with the Koonz McKinney law firm of Washington, DC, Peck explained that Rule 4(k)(2) was adopted, with the agreement of the Supreme Court and the Congress, to address precisely these situations. It provides federal personal jurisdiction over defendants in federal causes of action where no state court can assert jurisdiction over the parties. To satisfy due process, all that is required are sufficient continuous and substantial contacts on a national basis, Peck said. However, no defendant can be "at home" in the United States and still not be subject to state-court jurisdiction.

    Peck further argued that the rule has especially important application in admiralty cases, like this one, where U.S. courts have exercised jurisdiction over the course of more than two centuries as a function of international law applicable to maritime nations. 

    The case now is under advisement, awaiting decision by the 17-judge court.