Peck Argues Sovereign Immunity Issue in Florida Appeals Court

March 8th, 2022

     CCL President Robert S. Peck urged a Florida appeals court to affirm a trial court's ruling that the University of Florida and its board do not receive sovereign immunity when it overcharged prospective students for their college applications and subsequent orientation.

      The case, a putative class action, relied on a Florida statute that set the maximum fees that state universities can charge for applications at five dollars and for orientation of accepted students at thirty dollars. Without seeking legislative permission to charge more, the University of Florida passed along a vendor's additional five-dollar fee to applicants, while charging seventy-five dollars for orientation. The plaintiffs sued on theories of conversion and negligent misrepresentation. A trial court denied the university's motion to dismiss based on sovereign immunity, and the defendants then appealed.

      During oral argument, one judge pressed the issue of whether the statutory waiver of immunity's reference to "loss of property" could include money collected by an illegal overcharge. That appeared to be the primary issue for the Court. Peck responded by explaining a wide variety of precedents where money was treated as property. The case is now under advisement, with a decision expected sometime in the next few months. 

CCL Defends Free-Speech Doctrine

March 6th, 2022

     Arguing that exempting "low-value" speech that causes emotional distress from constitutional protection will often provide a weapon in the hands of those in the majority against dissenters, CCL President Robert S. Peck took up a debate with a fellow blogger on the Appellate Advocacy Blog, a feature of the Law Professor Blogs Network. 

     A week earlier, Adam Lamparello, an associate professor at Indiana Tech Law School, provocatively advocated that brutalizing speech should be subject to regulation. Peck responded by describing instances where anti-racism demonstrations were the object of attempted censorship because of the discomfort it transmits to those in power who may not be combating it. Peck noted that today's controversies over critical race theory and LBGQT expressions arise because majorities believe that their communication constitutes an attack on traditional values.

     Peck also pointed out that free speech has a safety-valve function that allows the expression of disturbing thoughts so that it does not retreat to the underground, where it can fester unimpaired by counter-speech and emerge surprisingly and in more virulent form. 

CCL Files Supreme CourtAmicus Brief for Civil Procedure and Federal Court Scholars

February 28th, 2022

     In 2013, a freight train carrying crude oil derailed, destroying much of the downtown of a city in Quebec and killing 47 people, who subsequently sued. Their case was dismissed by the federal district court in Maine on jurisdictional grounds. They appealed the dismissal, but for the first time in the case, the U.S. Court of Appeals for the First Circuit held that the bankruptcy, rather than the general civil rules applied, meaning that their notice of appeal had to be filed within 14, rather than 30, days, and depriving the appellate court of subject-matter jurisdiction.

     The plaintiffs have now sought review in the U.S. Supreme Court. In an amicus brief filed by CCL, scholars who teach and write in the areas of civil procedure and federal courts urged the Court to take up the case because switching the applicable rules mid-stream is inconsistent with due process and has troubling and far-reaching consequences for civil litigation. By insisting that a non-party's bankruptcy petition was sufficiently related to this litigation and therefore warranted application of the bankruptcy rules, the First Circuit invited other litigants to search for a distantly related bankruptcy litigation to game the system and knock out cases against themselves, the brief argued.

      The case, Roy v. Canadian Pacific Railway, will be considered by the Supreme Court in conference in April after the defendant was granted a 30-day extension of time to respond to the plaintiffs' petition and the CCL amicus brief.

CCL Opposes Partial Dismissal in First Amendment Challenge

February 28th, 2022

     In a challenge to a Florida law enacted last year that limited marketing by roofing contractors, CCL filed a brief in opposition to partial dismissal filed by the State. 

     The State first argued that the facial challenge to the law be dismissed, as no separate set of facts were pleaded to support that portion of the challenge, only the as-applied challenge. CCL argued in response that precedent holds that the same facts were sufficient to support both types of challenges, as the consequences are the same.

     The State also argued that the challenge was based on a misreading of the statute, because it does not necessarily prohibit the communications that the plaintiffs, Restoration Association of Florida and Apex Roofing, claim it does. CCL's brief points out that the State did not disclaim seeking punishment if the plaintiffs engaged in the practices they believed violated the statute. In addition, CCL cited Supreme Court decisions that still found standing and ripeness satisfied based on the plaintiffs' view of the statute's prohibitions, even when the State denied it would apply that way.

     The State's last major argument posited that the case was not ripe because there was no imminent threat of prosecution, but again CCL cited precedent that supported ripeness because plausible prosecution had caused the plaintiffs to engage in self-censorship, which sufficed to meet the applicable standard.


CCL Argues PREP Act Does Not Preempt Nursing Home COVID Death Case

February 28th, 2022

     Asking the U.S. Court of Appeals for the Seventh Circuit to affirm a district court ruling that the Public Readiness and Preparedness (PREP) Act does not completely preempt or displace a cause of action under the Illinois Nursing Home Care Act, CCL argued that the 2005 federal statute attempted to encourage the use of pandemic countermeasures and created immunity from liability when used. Here, however, the nursing home failed to use the countermeasures and cannot claim liability protections from the PREP Act.

     The case arises from the death of a nursing home resident. The lawsuit alleges that the nursing home failed to take basic safety measures to protect the decedent from COVID and worked against the residents' health by instructing staff to come to work, even if they had COVID symptoms. Once exposed, the decedent passed away quickly. 

     The defendant first argued that the case belongs in federal court because it was acting as a federal agent in helping address the COVID-19 pandemic. However, as the CCL brief shows, the nursing home had no contract or other indicia that it was working with the federal government. Instead, it attempted to comply with federal regulations -- and regulatory compliance does not transform a private party into a federal agent.

     The defendant then argued the PREP Act completely preempted the state cause of action, transforming it into a federal one. However, to do so, CCL explained, the PREP Act had to apply to the case. It doesn't because it does not cover the non-use of countermeasures.

      Finally, the defendants cursorily argued that the state cause of action was based on a violation of federal law, making it federal in nature. Yet, where the federal law does not apply, CCL said, it cannot be based on federal law.

     The defendant next has an opportunity to file a reply brief. The case is Martin v. Petersen Health Operations.

U.S. Senator Benjamin Cardin References CCL Brief in Remarks on Climate Change

February 16th, 2022

     In remarks delivered on the Senate floor on climate change, Senator Benjamin Cardin (D-Md.), referred to several statistics in the amicus brief filed on behalf of the National League of Cities (NLC) nd the U.S. Conference of Mayors (USCOM) by CCL in Baltimore's lawsuit against major oil companies for the effects its misrepresentations on the effects of fossil fuels have had on the city's infrastructure. 

     CCL has filed amicus briefs in several city, county, and state lawsuits on the issue on behalf of the NLC, USCOM, and the International Municipal Lawyers Association. In support of Baltimore's position that their case belongs in state court, CCL filed briefs in both the U.S. Supreme Court, where the brief was referenced twice in oral argument, and in the U.S. Court of Appeals for the Fourth Circuit, where it was recently re-argued.

Peck Argues Cap Damage Challenge in Texas

February 9th, 2022

     Arguing that the Seventh Amendment qualifies for application to the States through the Fourteenth Amendment, CCL President Robert S. Peck, representing victims of medical malpractice, told a federal district court in Austin, Texas that the state's cap on noneconomic damages is inconsistent with the right to a jury trial. 

      The case, Winnett v. Frank, asks the Court to apply the modern incorporation doctrine to the Seventh Amendment, making it applicable to the States in the same manner that the Supreme Court has recently applied the Second Amendment, the Excessive Fines Clause of the Eighth Amendment, and the unanimous criminal jury trial requirement of the Sixth Amendment. Using that criteria, he said, the Seventh Amendment's Preservation Clause, which maintains the historic common-law authority of the jury as a constitutional right, exceeds the necessary qualifications of the amendments previously "incorporated." Following Fifth Circuit precedent, Peck urged the Court to apply the modern test, rather than rely on more than century-old decisions that used a test the Court has held obsolete.

     Applying that test, Peck said that the cap interferes with the right to jury-assessed damages by replacing the jury's factfinding specific to the individual case with one developed by the legislature that overrides that jury's determination of facts and renders its verdict only advisory. In response to the defendant's argument that a panel of 12 jurors should not be allowed to displace the policies of an elected legislature, Peck pointed out that the purpose of a bill of rights is to remove certain policies from vicissitudes of political debate, as Justice Robert Jackson wrote in a 1943 decision in the second of the Flag-Salute cases. As an example, Peck explained that even if everyone but one person in the country disliked a single dissenter's advocacy, the First Amendment prevents laws that would burden or punish that single person's point of view.

     Defendant-Intervenor Texas Hospital Association claimed that studies supported the effectiveness of the cap, but Peck said that the vast majority of studies, including Texas-specific studies, undermined that claim. Nonetheless, Peck said none of that mattered because the jury-trial right was a categorical right, measured by historical usage and not by a balancing test. Even if it were subject to a balancing test, Peck added, less restrictive means, such as insurance regulation or tax incentives were available to accomplish the goals Texas had without trampling on peoples' rights.

     The Texas Attorney General also defended the statute, choosing to argue that neither standing nor ripeness permitted the court to address the constitutional question. Peck, citing a 1978 U.S. Supreme Court case, explained that the cap had immediate effects on both the trial and potential settlement of the case, providing an adequate basis for standing and ripeness. He also submitted that, under the Attorney General's formulation, no plaintiff would ever have a right to vindicate federal rights in federal court, as the Supreme Court has repeatedly acknowledged must be the case.

     The case is now under advisement before U.S. District Court Judge Lee Yeakel.

SCOTUS Denies Certiorari, Lets Win Stand

January 18th, 2022

     The Supreme Court denied a petition for a writ of certiorari today on an issue of preemption, where CCL represented the plaintiffs in opposing review. 

     In Edward D. Jones & Co., L.P. v. Anderson, No. 21-552, the financial management firm sought Supreme Court review of a Ninth Circuit decision that the plaintiffs' claims were not preempted by the federal Securities Litigation Uniform Standards Act (SLUSA), which was enacted to cover lawsuits based on the purchase or sale of a covered security. The Ninth Circuit had held that, when Edward D. Jones switched the plaintiffs from commissioned-based fees on their investments to an annual management fee arrangement, the complaint about the higher fees was unrelated to purchases or sales. The plaintiffs were "buy and hold" investors, which means that after making their original purchases they largely rode the market, rather than engage in frequent trading. As a result, their accounts generated very few commissions. The annual management fee, on the other hand, taxed clients a percentage of their investment, guaranteeing income to the firm.

     Lawyers for Edward D. Jones argued that the federal appellate circuits had split on whether the litigated issue had to "coincide with" or be "material to" a purchase or sale and asked the Supreme Court to settle that issue through this case. CCL's brief in opposition to certiorari argued that the issue in the case was utterly unrelated to a purchase or sale and thus provided no occasion for the Supreme Court to take up the issue. In representing the plaintiffs, CCL joined Franklin D. Azar & Associates, who had won the case in the Ninth Circuit. 

Peck Blogs about Arguing in the Age of COVID

January 16th, 2022

  In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about the uncertainty counsel often faces about whether arguments will be in-person or remote during the COVID-19 pandemic. While preparation remains largely the same, the dynamics vary between the two, which he demonstrates through several anecdotes. The post is Arguing in the Age of COVID

CCL Assists on Judicial Funding Brief in Washington State

January 14th, 2022

     In an opening brief filed today, plaintiffs in a number of pending civil cases facing unreasonable delays asked the Washington Supreme Court to hold that they have standing to bring an action against the State over inadequate funding of the state courts. Their case about judicial funding was filed last year, but was dismissed by a trial court with an opinion or explanation. The plaintiffs, represented by Stritmatter Kessler Koehler Moore and CCL, sought direct review in the state supreme court.

     The brief notes that Washington's chief justices have long pleaded with the Legislature for more funding, noting that the state's trial courts ranked 50th out of 50 in per capita funding. The brief invoked the state constitutional guarantees of access to the courts "without unnecessary delay" and jury trials to argue that systemic issues prevent courts from hearing cases in a timely manner. They further argued that the system of separation of powers empowers the courts to assure adequate funding. 

      In Washington, half of judicial salaries at the trial level are paid by the state, while counties are responsible for the other half. By statute, the state legislature imposed half of all other costs on the counties as well. A popular referendum, however, required the state to pay all costs of additional judges added by the state. Nonetheless, the lawsuit argues that the provision of justice is ultimately a state responsibility and cannot be dependent on the ability of counties of uneven wealth to finance it. In this respect, the lawsuit is similar to school finance cases that have succeeded in Washington and other states. 

      A response brief, arguing in favor of affirming the dismissal, will be filed by the State February 25.