West Virginia Advertising Restrictions Declared Unconstitutional

May 7th, 2021

     Granting CCL's motion for summary judgment, a federal district court declared the challenged portions of a one-year-old West Virginia advertising law unconstitutional as a violation of the First Amendment and ordered it permanently enjoined. 

      The statute, called the Prevention of Deceptive Lawsuit Advertising and Solicitations Practices Regarding the Use of Medications Act, was enacted last year supposedly to prevent consumers from hearing potential liability resulting from injuries related to drugs and medical devices. Attorneys advertising for clients in drug and medical device litigation, the legislation contended, could cause some consumers to stop taking prescription medication without consulting their doctors. To prevent that possible consequence, the legislation banned the use of the word "recall" to describe voluntary recalls of the products by manufacturers, the use of "consumer alert" in the lawyers' advertising, and the use of a government logo that might suggest affiliation with official agencies. In addition, it imposed a wide range of disclaimers that could take up to 23 seconds from a 30-second advertisement. One disclaimer required the lawyer to tell consumers that they should not stop taking medication without consulting a doctor.

     CCL, working with the Segal Law Firm, challenged the law and obtained a preliminary injunction last June, so the law never went into effect. The new order makes that injunction permanent and declares the law unconstitutional, finding that it, without justification, bars truthful, nonmisleading advertising, compels a lawyer to provide medical advice unrelated to the legal services being offered, and imposes burdensome disclaimers.

     CCL President Robert S. Peck was lead counsel in the case. There is no word yet on whether the State of West Virginia plans to appeal the ruling.

CCL's Peck Testifies Against Attorney Advertising Bill in Louisiana Senate Committee

May 5th, 2021

    CCL President Robert S. Peck told members of the Louisiana Senate Commerce and Consumer Protection Committee that S. 43, which would attempt to regulate attorney advertising was unconstitutional and should not be enacted.

     The legislation, nearly identical to a law enacted in West Virginia that Peck had successfully won an injunction against, was inconsistent with the First Amendment and unlikely to ever go into law. Moreover, Peck said, it does not accomplish what the sponsor had just testified it would. Before Peck spoke, bill sponsor Senator Barrow Peacock told committee members that the bill would prohibit advertisers from using the FDA or a Louisiana government logo and showed a video of an advertisement he said would be barred. The ad used the FDA logo to report what the FDA said about the drug.

     Peck said that the advertisement shown was completely legal, truthfully reporting about an FDA statement. The bill, however, only prohibited use of a logo if the use suggested that the lawyer was affiliated with the FDA, so it would have no application to the ad shown. In addition, he told the committee that the bill was nearly identical to one enacted in West Virginia over which he had brought a lawsuit that had been granted a preliminary injunction, indicating that he was likely to prevail in his constitutional challenge. He urged the committee no to pass a law that would never go into effect, just as the West Virginia law never did. Moreover, he warned that if someone like him brought a successful lawsuit challenging it, the State would end up paying the plaintiff's attorney fees.

    Peck also gave a detailed rendition of the bill's unconstitutional provisions. Nonetheless, by a 4-3 vote, the bill now moves to the Senate floor.

CCL Files Reply Brief to Support Declaration of Unconstitutionality in West Virginia Attorney Advertising Case

May 3rd, 2021

    CCL told a West Virginia district court that the state attorney general failed to meet his burden in justifying a state law regulating attorney advertising related to drug and medical device cases that prohibits the use of certain words and adds a long list of disclaimers, in a reply brief in support of summary judgment.

    The law was enacted last year, based on the idea that consumers who see the advertisements soliciting business from those harmed by certain drug or medical devices would stop taking their medication or mistake the advertisements for medical advice. Representing two lawyers and one of their clients, along with the Segal Law Firm of West Virginia, CCL President Robert Peck obtained a preliminary injunction last June so that the law never went into effect. Earlier this year, plaintiffs sought summary judgment to turn the preliminary injunction into a permanent one, arguing that categorical bans against truthful, non-misleading advertising could not withstand constitutional scrutiny, such as a ban on telling consumers that the drug had been voluntarily recalled by the manufacturer.

     In addition, the disclaimers were burdensome, dominating the advertising and included a requirement that the lawyer provide medical advice by telling consumers not to stop taking a drug until consulting their doctors.

    In response, the West Virginia Attorney General, who was the defendant in the case, insisted that this was an ordinary consumer measure, justified by some polls and incidents in other states.

    Today's brief explained that the justification was a hollow one because it adopted precisely the paternalistic view that the Supreme Court has held cannot justify limits on protected commercial speech that is truthful and non-misleading. A ruling on the summary judgment motion is expected soon.

CCL Files Two Briefs Opposing Dismissal in Fair Housing Act Cases

May 3rd, 2021

     Today, CCL filed briefs opposing motions to dismiss in two cases filed by the City of Miami Gardens, Fla. against Bank of America and Chase that accused the banks of discriminatory mortgage lending practices under the Fair Housing Act.

      The cases, pending for seven years, recently were reactivated after similar cases' appeals had run their course. The banks filed motions to dismiss, claiming the city lacks Article III standing, failed to meet the statute of limitations, failed to sufficiently allege proximate cause because the city's lost property tax revenue was too remote from the discriminatory mortgages to be actionable.

      In response the city's brief, largely written by CCL, argued that the city met the criteria for constitutional standing, alleged a continuing violation that allows relation back to earlier discriminatory loans because it identified more than one similar loan within the two-year period before the original complaint was filed, and met the standard for proximate cause because of the regression analysis it alleged, which every court to date has found sufficient.

     The banks will now have an opportunity to reply to the brief.

Peck Speaks at Seminar, Receives Award at Conference

April 24th, 2021

     CCL President Robert S. Peck spoke April 23 on bringing constitutional challenges at a seminar for the Workers' Injury Law and Advocacy Group (WILG) and then joined a reception at a conference of the International Municipal Lawyers Association (IMLA), where he received its Amicus Award.

     The WILG seminar introduced its lawyer-members to a new constitutional challenge resource developed by the organization. Members have grown concerned that states are passing laws that limit the eligibility and scope of benefits available through workers compensation to those injured in the workplace. Peck's remarks about the art and pitfalls of constitutional challenges covered different approaches and difficulties that the litigation often involves.

     The IMLA awards reception recognized Peck for his pro bono amicus brief in BP pllc v. Mayor and City Council of Baltimore, filed in the U.S. Supreme Court. The case was initiated by Baltimore in state court against major oil companies for their contributions to climate change and its impact on the city. The oil companies removed the case to federal court, but the federal court ordered the case remanded to state court when it found none of the grounds for removal were valid. Under a federal statute, an immediate appeal of that order was permissible because one of the grounds asserted for removal was that the oil companies' alleged liability was for work it did at the direction of the federal government. The U.S. Court of Appeals for the Fourth Circuit held that the federal government did not direct the oil companies and refused to consider alternative grounds for removal because the federal law giving a right of appeal was limited to "federal-officer" grounds.

      The scope of the authorized appeal was the issue before the Supreme Court. At oral argument, the IMLA brief written by Peck was mentioned twice, a testament to the importance of issues only raised by that brief. A decision in the case is still forthcoming.

Amicus Brief Asks Missouri Supreme Court to Strike Medical Malpractice Damage Cap

April 14th, 2021

     A CCL-authored amicus brief asks the Missouri Supreme Court to strike damage limitations enacted by the state legislature as a violation of the right to trial by jury. The brief was filed on behalf of the Missouri Association of Trial Attorneys and the American Association for Justice.

    In 2011, CCL won a decision that struck the previous damage cap on jury-trial grounds. In the decision, Watts v. Lester E. Cox Med. Cntrs., the state supreme court held that a cap on a common-law cause of action invades the jury's province as the trier of facts, which includes the determination of compensatory damages. In response to that ruling, the Missouri General Assembly seized on the common-law cause of action analysis and enacted a "statutory cause of action" for medical malpractice. The new action, however, was identical to the old one, except for the institution of caps. 

     In the underlying action, the plaintiff alleged her physicians were negligent during childbirth and in post-partum care, requiring the mother to undergo multiple surgeries and suffer permanent injuries. The jury rendered a verdict for the plaintiff, but its assessment of $1 million in noneconomic damages was lowered by the trial court due to the cap.

     The amicus brief filed by CCL argues that Watts was correctly decided, that respected studies by independent academics demonstrate that the rationales behind damage caps are invalid, that merely codifying the common law does not transform a common-law cause of action into a statutory one, and that the jury-trial right applies to statutory causes of action that are analogous to ones that existed at common law. For those reasons, the Court should strike the new damages caps for the same reasons it struck the earlier version, the brief concludes.

Plaintiffs Prevail against Motions to Dismiss in COVID-19 Nursing Home Cases

April 9th, 2021

    Two different federal district court judges denied motions to dismiss in three cases where an Illinois nursing home was sued over injuries and deaths due to COVID-19 and the nursing home's failure to take appropriate measures to stop the virus's spread in its facility.

    In the three cases filed against Westchester Operating Company, the nursing home operator, Judges Thomas Durkin and Manish Shah held that the separate claims for negligence and willful and wanton misconduct survive the motions to dismiss because the pleaded complaints allege that either Winchester was not eligible for the immunity that the Illinois Governor granted health care providers by executive order or that the pleading of willful and wanton misconduct satisfied an exception to the executive orders.

    The plaintiffs alleged that Westchester failed to take steps to protect its residents from the pandemic, affirmatively punished residents who complained, ordered staff who contracted COVID-19 to continue to work, and rendered no assistance to the State of Illinois that would qualify it for immunity under the Governor's orders. In moving to dismiss Westchester argued that the immunity order abrogated the Illinois Nursing Home Act's negligence standard and that the Act provided no liability for willful and wanton misconduct. Both judges found the arguments without merit. The three cases, filed in the U.S. District Court for the Northern District of Illinois will now proceed.

    The plaintiffs are represented by Levin and Perconti, as well as the Center for Constitutional Litigation, whose Robert S. Peck wrote the briefs opposing the motions to dismiss.

Plaintiff Seeks Rehearing in Seventh Circuit Case about Off-Duty Police Shooting

March 31st, 2021

     As a member of the legal team representing the victim of a shooting by an off-duty Chicago police officer, CCL filed a petition for rehearing and rehearing en banc in the U.S. Court of Appeals for the Seventh Circuit. 

     In the underlying case, Michael LaPorta was shot in the head by an off-duty officer, using his service revolver, during an argument the two were having at the officer's home. LaPorta survived, but suffered devastating injuries that will require lifetime care. The officer, who was the subject of 19 different complaints about his use of violence both on and off the job, but never disciplined, believed himself above the law. Even after this shooting, for which he was never disciplined, fellow officers attempted to cover up his crime and the City of Chicago attempted to defend its liability by claiming that the shooting was a suicide attempt.

     A jury found the city liable for its policies, customs, and practices of not disciplining police officers so that they could act outside the law with impunity because of their status. The Seventh Circuit reversed the verdict, holding that the city had no obligation to protect anyone from private violence from an off-duty police officer. 

    The new petition asks the court for reconsideration because precedent holds that a municipality can be liable for injuries where the city's policies, customs, and practices are the "moving force" behind the injury. By requiring that the injury be carried out by a state actor, as the opinion did, the brief argues that the panel improperly overruled existing precedent.

    The petition was primarily written by Chicago-Kent law professor Carolyn Shapiro. Others on the case besides CCL include the Romanucci & Blandin law firm of Chicago, Michael Rathsack of Chicago, and David Rudovsky of Philadelphia.

CCL Opposes Stay of Discovery in FHA Cases

March 29th, 2021

     CCL filed separate oppositions to motions to stay discovery filed by Bank of America and Chase in Fair Housing Act cases brought by the City of Miami Gardens, Florida. The banks, defendants in separate cases before the same judge, filed motions to dismiss the city's lawsuits against them, claiming that the city lacks standing, that the city cannot satisfy the statute of limitations, and that the city does not adequately plead that the banks are the proximate cause of the city's loss of property tax revenue as a result of discriminatory mortgage lending. Shortly after filing the motions to dismiss, the banks asked the court to stay discovery until their motions are decided.

    In its opposition to the stays, CCL's brief argues that precedent rejects stays unless two conditions are met. First, the motion to dismiss must be so strong that the city has no real defense to it. Second, that the motion to dismiss has been pending for an unseemly length of time, making a stay proper. Neither condition is met, CCL told the court. A slew of judicial decisions in related or similar cases supports the validity of the city's complaint, plus the motion to dismiss is so recent that the City has not yet filed its response.

     CCL represents Miami Gardens along with the City Attorney's office, Trial and Appellate Resources in California, and the Peretz law firm in Oakland, California.

CCL File Petition for Writ of Mandamus in Fourth Circuit

March 26th, 2021

     CCL asked the Fourth Circuit to take supervisory authority over a case challenging the constitutionality of the Virginia cap on medical malpractice damages because the federal trial court has postponed ruling on the cap's validity and insisted on moving forward with a trial in which it cannot award any damages. The petition for a writ of mandamus and prohibition invokes the higher court's authority to confine the lower court to its legitimate jurisdiction.

     In the petition filed March 26, CCL explains that J.S., a minor, filed this declaratory judgment action and medical malpractice case against the defendant to seek compensation for debilitating injuries that were caused by a failure to diagnose the injury following an automobile collision. A joint tortfeasor settled the case against it for $2 million before the current suit was filed. Virginia law limits damages in medical malpractice actions to a total of $2 million, even though, in this case, J.S.'s medical expenses are estimated to be $3.3 million. CCL had argued that because the federal district court cannot award any damages, the liability claims fail the test for standing under Article III of the Constitution, which require the court to be able to provide a remedy, among other things. However, CCL pointed out the court can provide a remedy in the constitutional challenge because it could find the statute unconstitutional and enjoin its operation. Doing so, then, would open the door to trying the underlying malpractice action.

    However, in early March, the district court determined that reaching the constitutional question would constitute an improper advisory opinion because there is no entitlement to additional damages until there is a jury verdict above the $2 million damage cap. It set the case for trial. The petition to the U.S. Court of Appeals for the Fourth Circuit, however, argues that the trial court got it backwards. A trial of a case in which it can award no damages would be the advisory opinion that the Constitution forbids, because Virginia does not authorize medical malpractice cases to be brought when $2 million in damages have already been paid. The CCL petition directs the court to a 2021 U.S. Supreme Court ruling, where the issue was whether nominal damages of $1 were sufficient to find Article III standing and held that it was because even nominal damages provide concrete vindication to a plaintiff. Yet, in J.S.'s case, CCL points out, not even one penny of damages could be awarded, so the parties would be invoking federal judicial resources for a case that cannot vindicate the plaintiff's complaint.

     Under the procedure for petitions for mandamus, the parties must await a decision from the Fourth Circuit that invites the other parties and possibly the lower court to file a brief in opposition. If no such invitation issues, the petition is denied. CCL is cocounsel in the case with the MichieHamlett law firm in Charlottesville, Virginia.