News

Peck Speaks at AAJ State Summit

October 21st, 2015

CCL President Robert S. Peck described issues being litigated in courts around the country that affect civil litigation at the American Association for Justice’s State Summit, a gathering of state trial lawyer presidents and executive directors in Washington, D.C. on October 21. Peck reviewed some of the cases pending this term before the U.S. Supreme Court, including four cases in which CCL serves as counsel of record: two under the title of Wal-Mart v. Braun, as well as Ortiz v. United States and Johnson & Johnson v. Reckis. The Wal-Mart cases involve undercompensation of Pennsylvania workers for their paid rest breaks, in which Wal-Mart attacked the use of extrapolation for records the company deliberately stopped keeping to avoid liability. Ortiz is a challenge to government immunity for medical malpractice at a military hospital that resulted in brain damage to a newborn. The U.S. Court of Appeals for the Tenth Circuit, in contrast to decisions from other circuits, held the government immune, which also results in discrimination against mothers in the military, when the immunity would not apply if the military member was the father. Finally, in Reckis, Johnson & Johnson is arguing that a significant verdict for a young girl’s catastrophic injuries resulting from Children’s Motrin, which had not relevant warning at the time, is preempted.

Peck also described some of the challenges to damages caps the CCL is undertaking, including one now pending in the Oklahoma Supreme Court.

CCL Files Appeal Urging Oklahoma Supreme Court to Declare Cap on Damages Unconstitutional

October 14th, 2015

CCL was retained by the Abel Law Firm of Oklahoma City to assist in bringing an appeal challenging the constitutionality of Oklahoma’s recently enacted cap on noneconomic damages in all tort cases involving bodily injury.

In Beason v. IE Miller Services Inc., the jury awarded plaintiff James Todd Beason $14 million for the serious and permanent injuries, pain, and disfigurement he suffered when he was struck by part of a crane that collapsed while being negligently operated by an employee of the defendant. The jury awarded Mr. Beason’s wife $1 million for her separate damages caused by the defendant’s employee’s negligence. After the jury determined the damages, the trial court judge applied Oklahoma’s cap on noneconomic damages, 23 O.S. § 61.2(F), and reduced the jury’s verdict by more than $5 million.

After the court denied the Beasons’ motion to modify the judgment to conform to the evidence and the jury’s verdicts, CCL President Robert S. Peck and Senior Litigation Counsel Valerie M. Nannery prepared the Petition in Error and filed a motion asking the Oklahoma Supreme Court to retain the appeal rather than delegating the decision to Oklahoma’s Court of Civil Appeals. Although previous legislatures have enacted caps on damages, the Oklahoma Supreme Court has never specifically addressed whether caps on compensatory damages are constitutional. CCL urged the court to finally settle the matter and resolve whether the statute capping damages violates the state’s requirement for a general verdict, the constitutional guarantee to trial by jury, separation of powers, or the state’s equal protection or special legislation protections.

Plaintiffs filed the appeal on September 22, 2015, and the Oklahoma Supreme Court granted CCL’s motion to retain the appeal on October 6, 2015. The Oklahoma Attorney General has made an appearance in the case.

CCL Asks U.S. Supreme Court to Resolve Circuit Split on Right of Children of Military Mothers to Bring Birth-Injury Claim When Suits of Children of Military Fathers Are Permitted

October 13th, 2015

In a petition for certiorari filed today, CCL asked the U.S. Supreme Court to review a Tenth Circuit decision that dismissed claims made on behalf of a child who suffered a severe brain injury as a result of malpractice committed at a military hospital during her delivery. In doing so, the court relied upon the U.S. Supreme Court’s decision in Feres v. United States, 340 U.S. 135 (1950), which carved out an exception to the Federal Tort Claims Act for claims made by active-duty members of the military service that are incident to that service. The Tenth Circuit held that the newborn’s injuries were derivative of the active-duty mother’s and therefore foreclosed under Feres. In contrast, if active-duty parent of the injured child was an active-duty father, Feres would not have stood as an obstacle to seeking compensation through the courts. In addition, several federal circuit courts, notably the Fourth and Eleventh Circuits, treat the baby as a separate patient from the mother, enabling the child to present a claim. The result is that some babies, injured in identical fashion, have a cognizable claim and some do not, either because of what part of the country the delivery took place or because of the gender of the parent.

The petition, filed in Ortiz v. United States, asks the Supreme Court to resolve the split in the circuits and determine whether the differential treatment of children based on a parent’s gender comprises an unconstitutional form of gender discrimination.  CCL President Robert S. Peck serves as counsel of record in the case. He was joined on the petition by Laurie M. Higginbotham of Austin, TX, James E. Puga and Bruce Braley of Denver, CO, and Joseph F. Bennett of Colorado Springs, CO. A response to the petition from the U.S. Solicitor General is the next likely step in the case.

Peck Participates in Supreme Court Preview on Capitol Hill

October 9th, 2015

CCL President Robert S. Peck told invitees of the Congressional Civil Justice Caucus that the upcoming Supreme Court term has enormous potential to change class actions, but was more likely to find that the cases before it do not provide the vehicles for significant changes. Peck made the presentation October 9 in a House Judiciary Committee hearing room, with American Tort Reform Association General Counsel, Victor Schwartz, providing an alternative view.

Among the cases discussed were Tyson Foods v. Bouaphakeo, a case about compensating chicken processing plant workers in Iowa for the time it takes for them to “don and doff” protective clothing, as required by their contracts. In the case, the defendant has argued that the case is not susceptible for class-action treatment because a small percentage of the workers were not eligible for compensation and others took different amounts of time at the task. Peck said that these arguments ignore the rules and precedents that apply to employment law, which are likely to figure prominently in the upcoming oral argument, making it a poor vehicle for establishing a new class action precedent.

Another case discussed was Spokeo, Inc. v. Robins, a case that raises the question of whether Congress can create a cause of action for a statutory injury when there allegedly was no particular and concrete injury suffered. The case revolves around a claim that an online profile of the plaintiff by a company that publishes reports used by employers, which provided inaccurate information about him, including that he was employed and married with children, when he was not. Robins claimed the false information harmed him in seeking employment. He sued under the Fair Credit Reporting Act, which obligates those publishing covered reports like this one to take steps to ensure accuracy and creates a cause of action when the reports are inaccurate. The case is set to be argued November 2.

CCL Argues First Verdict Should Be Reinstated in Seventh Circuit Appeal

October 2nd, 2015

In a case involving a commercial dispute between an Indiana and German company, CCL President Robert S. Peck argued that the Indiana company’s victory in the first trial of the matter should be reinstated. Slurry Systems, Inc., which had been awarded an Army Corps of Engineers contract, to build a retaining wall in Illinois for the McCook Reservoir, had leased, with an option to own, an enormous cutter manufactured by Bauer, a German company. However, constant problems with the cutter caused the project to drag on. Moreover, even though the contract required a new cutter, the one delivered was more than two years old.

After a jury trial, Slurry won a verdict of $3 million in compensatory damages. However, the judge presiding over the case ordered a new trial on his own motion for two reasons: 1) the jury failed to specify an amount for an equitable adjustment that would have increased the amount of the verdict, and 2) the jury awarded “monstrously excessive” punitive award on a claim in which no damages were awarded. Peck argued that the trial judge had an obligation to harmonize the jury’s verdict with the evidence, or order a damages-only retrial. He added, the punitive damages should have merely been stricken. If the first trial did not count, Peck said, then the second trial was flawed because Bauer adopted a new legal theory, in violation of the rules governing new trials. Therefore, the second trial should not count either, making a third trial the only logical next step. The case is now under advisement.

CCL Argues Class Action Standing Challenge Is Not Properly Presented

September 29th, 2015

On September 29, CCL filed an amicus brief for the American Association for Justice, once again asking the U.S. Supreme Court to dismiss the petition in a case involving the Article III standing requirements in federal class actions. Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146.

Plaintiffs in this case are hourly workers at a Tyson pork processing facility in Iowa. Employees were paid from the time the first piece of work arrived at their workstation until the last piece was finished. They were also paid four additional minutes to compensate for time donning and doffing required protective or sanitary equipment or clothing. Plaintiffs brought a class action alleging that donning/doffing activities constituted compensable work under the Fair Labor Standards Act for which they were not fully compensated. Plaintiffs’ expert testified, based on observations of a sample of workers, that workers in two areas of the plant spent an average of 21 minutes and 18 minutes performing these activities. Another expert calculated the amount of overtime pay owed to the class if Tyson had properly credited the workers with donning/doffing time. The expert noted that 212 members of the class would not have been eligible for additional overtime, even if properly credited with donning/doffing time. The jury returned an aggregate verdict in favor of the class. The Eighth Circuit Court of Appeals affirmed.

The Supreme Court granted certiorari to review two questions, including whether a class action may be certified “when the class contains hundreds of members who were not injured.”

In an amicus brief prepared by CCL Senior Counsel Jeffrey R. White, AAJ submitted that this question is not properly presented in this case. The complaint alleged that all members of the class were undercompensated due to the pay system used by Tyson. The fact that the class subsequently limited the relief sought does not retroactively deprive the 212 ineligible workers of Article III standing. Moreover, the record reflects that plaintiffs’ expert removed those 212 workers from her calculations of the class damages; they did not contribute to the amount claimed by the class. Finally, Tyson lacks standing to challenge the allocation of an aggregate award among class members that will not affect the amount of Tyson’s liability. If the Court reaches the merits, AAJ argued, it should affirm the general rule followed by federal courts that allegations of concrete injury by the named plaintiff in a class action is sufficient to establish standing under Article III.

CCL Files Opposition to Motions to Dismiss in Chicago Stop-and-Frisk Case

September 25th, 2015

Following on the heels of an historic verdict in a case declaring New York City’s stop-and-frisk policies unconstitutional, the ACLU published a report in March that laid bare Chicago’s widespread, discriminatory stop-and-frisk practices. CCL joined co-counsel Antonio M. Romanucci, Martin D. Gould & Angela Kurtz with the Chicago firm Romanucci & Blandin, LLC, and Rod Gregory of the Gregory Law Firm in Jacksonville, Florida, in representing more than two dozen African-American and Hispanic male Chicago residents who filed a putative class action against the City, the Superintendent of Police, and the officers for violations of their Fourth and Fourteenth amendment rights.

The City and the Police Superintendent each separately moved to dismiss an amended complaint, attempting to litigate the merits of the plaintiffs’ claims before the defendants filed their Answer or provided the discovery the plaintiffs need to prove their claims.

CCL President Robert S. Peck and Senior Litigation Counsel Valerie M. Nannery worked with co-counsel to counter the City’s arguments that the plaintiffs do not have standing to seek equitable relief, and that the plaintiffs didn’t allege sufficient facts in the 713-paragraph Amended Complaint to show that their constitutional rights had been violated by the City’s practices and policies. In response, CCL pointed to the allegations that the incredibly widespread practice caused numerous plaintiffs to be stopped and frisked multiple times each, sometimes on the same day, without reasonable suspicion and based on their race or national origin, all while going about their daily lives, including instances where they were standing in front of their own homes. CCL argued that the allegations demonstrate a strong likelihood that the plaintiffs will again be subject to the challenged widespread policy because they cannot avoid being stopped and frisked simply by obeying the law.

The defendants’ motions will be heard in the U.S. District Court for the Northern District of Illinois on December 22nd.

CCL Joins Oakland Legal Team in Filing FHA Lawsuit against Wells Fargo

September 22nd, 2015

The City of Oakland, California filed a federal lawsuit against Wells Fargo Bank to recover damages caused by the bank’s predatory and discriminatory lending practices within the city.

The lawsuit charges Wells Fargo with targeting minority borrowers with predatory mortgage loan terms in violation of the federal Fair Housing Act and California’s Fair Employment and Housing Act.

In a press release issued upon the filing of the action, Oakland City Attorney said, “Wells Fargo’s discriminatory conduct devastated individuals and communities, increasing poverty and wiping out or drastically reducing wealth for minority communities while bankers prospered.”

The lawsuit asks the Court to order Wells Fargo to cease its discriminatory practices and compensate the City of Oakland for financial harm that the foreclosure crisis caused the city. In addition to losing millions in tax revenues, which necessitated police layoffs and other cuts in city services, the bank’s predatory practices saddled the city and its taxpayers with massive costs in addressing blight, vandalism and crime associated with foreclosed properties.

Thousands of homes went into foreclosure and remain in poor condition costing cities significant sums of money due to the loss of property taxes and increased out-of-pocket expenditures to remedy the resulting blight throughout minority communities.

City Attorney Parker filed the lawsuit in federal court with outside counsel that includes CCL President Robert S. Peck, Dean Erwin Chemerinsky of the University of California at Irvine School of Law, Yosef Peretz of Peretz & Associates, and Joel Liberson of Trial & Appellate Resources.

The U.S. Department of Justice and the cities of Los Angeles, Miami and Miami Gardens previously filed similar lawsuits against various banks. CCL is part of the legal team in the other municipal lawsuits.

CCL Files Amended Complaint in Fair Housing Litigation Brought by City of Miami Gardens, Florida

September 21st, 2015

In an amended complaint filed in federal court in Florida, the City of Miami Gardens renewed its allegations that Wells Fargo Bank violated the federal Fair Housing Act (FHA) by steering minority applicants to more expensive loans than they otherwise qualified for, resulting in a blight of foreclosures and costs to the city.  CCL is part of the city’s legal team in litigating the matter.

The case, originally filed more than a year ago, was stayed by U.S. District Court Judge Federico Moreno, while similar cases brought by the City of Miami was heard by the U.S. Court of Appeals for the Eleventh Circuit. Earlier this month, that court revived Miami’s lawsuits against Wells Fargo, as well as Bank of America and Citigroup, which had been dismissed by another district court judge, largely on grounds that the city lacked standing to prosecute FHA claims. CCL President Robert S. Peck argued the three successful appeals on behalf of Miami.

Miami Gardens’ new complaint also incorporates guidance received in June from the U.S. Supreme Court on the requirements for claims based on disparate impact under the FHA.

CCL Files Brief Challenging Nebraska Medical Malpractice Cap

September 14th, 2015

CCL filed a brief Monday, challenging Nebraska’s 40-year-old cap on damages in medical malpractice cases in Schmidt v. Bellevue Med. Ctr., currently pending in federal district court in Nebraska. The underlying case involves a now nearly three-year-old girl who suffered severe brain damage during birth.  A jury determined that the hospital was liable and found damages to amount to $17 million. Under the 1976 law, which has been amended to increase the damage cap several times, the verdict would be reduced to $1.75 million.

The Cullan & Cullan law firm of Omaha, which tried the case, hired CCL to help them challenge the damage cap, which applies to all damages in the case, economic and noneconomic. In Monday’s brief, written by CCL President Robert S. Peck, the plaintiffs argue that the cap violates the federal and state right to trial by jury, arguing that the Seventh Amendment guarantee in the U.S. Constitution should be applied to the states. In addition, the brief asserts that the cap violates the right of access to the courts, constitutes a taking without just compensation, is inconsistent with equal protection, and cannot be justified on substantive due process grounds.