CCL President Helps Kick Off Judicial Conference on Civil Justice Issues

October 10th, 2022

     Speaking on the opening panel for the 16th Annual Judicial Symposium on Civil Justice Issues, CCL President Robert S. Peck highlighted upcoming U.S. Supreme Court cases and other issues coming down the road that will likely affect how judges look at key issues. More than 100 judges from around the country attended the event held at George Mason University's Antonin Scalia Law School.

     The opening panel, moderated by Justice William Mims of the Virginia Supreme Court, also featured Geoffrey Wyatt, a partner at the Skadden Arps law firm. Video of the panel, as well as the other panels, is available at 16th Annual Judicial Conference on Civil Justice Issues.

Expert Rebuttal Report Demonstrates Multiple Flaws in Florida's Purported Justifications for Restricting Roofing Contractor Marketing

October 10th, 2022

     CCL President Robert S. Peck served expert rebuttal reports on opposing counsel in the Florida Attorney General's office as part of a challenge in federal court to restrictions the state legislature enacted on marketing efforts by roofing contractors. The State, however, filed no rebuttal to the Plaintiffs' expert reports. 

     The case involves a state statute that prohibits roofing contractors from advertising in a manner that encourages or induces a homeowner to make an insurance claim for property damage, along with other restrictions on paid referrals or offering a "thing of value" as an incentive to hire the contractor. Plaintiffs Restoration Association of Florida, a trade association of contractors who repair and remediate homes after damages, such as due to a hurricane, and Apex Roofing, the largest roofing contractor in the Southeast United States, challenged the law. Their supporting experts have explained that the restrictions on the Plaintiffs' marketing efforts target commonplace advertising and marketing strategies across industries while yielding nothing to advance the State's alleged anti-fraud efforts.

      The State produced expert reports by a fraud investigator for the state-operated insurance company and the Office of Insurance Regulation's consumer advocate. Both testified that in their opinions, fraud exists, and the statute's restrictions would prevent fraud. As the Plaintiffs' experts stated in rebuttal, neither State expert provided any data or facts that would support their opinions, that the sources that could be identified for the facts asserted did not support the anti-fraud claims of the State's experts, and that empirical studies also undermine the conclusory assertions of the State's experts.

      The case continues in the discovery period.

CCL Opposes Trial Continuance

October 4th, 2022

     In a brief filed opposing the Defendants' motion to continue the upcoming trial date in In re Behr Thermal Products, CCL told the trial judge that it should not credit the Defendants' eleventh-hour claim that they are baffled about what common issues would be tried to the jury and which withheld for individual trials before different juries.

     CCL explained that the Defendants had litigated those issues repeatedly in the federal district court and in the Sixth Circuit. CCL reemphasized its oral argument earlier in the week, demonstrating that no Seventh Amendment issues remain and that the trial date set long ago should not pose sudden issues about preparing in time that the Defendants now raise. 

     CCL was brought into the case by Plaintiffs' counsel for the Seventh Amendment issue. CCL President Robert S. Peck wrote the brief filed today and made the earlier oral argument.

Wall Street Journal Supreme Court Preview Features CCL President

October 3rd, 2022

     CCL President Robert Peck told the Wall Street Journal that more precedents were endangered and a bold Supreme Court seemed prepared to tackle a wide range of social and cultural issues, in the newspaper's preview of the new  term.

      The article can be found at Supreme Court Term Preview.

Peck Argues Bifurcation of Class Action Comports with Seventh Amendment

October 3rd, 2022

     Arguing that the Sixth Circuit had already settled the question in this case, that sister circuits were in agreement, and that the leading treatise on class actions also concurred, CCL President told Judge Walter H. Rice that the defendants in a class action were mistaken when they argued that bifurcation of a toxic tort case necessarily violated the Reexamination Clause of the Seventh Amendment.

     In the now 14-year-old case, In re Behr Dayton Thermal Prods. LLC, homeowners had brought property damage claims based on chemicals dumped from nearby plants. Just weeks before trial of class-wide issues, the defendants again raised Seventh Amendment issues with the procedure, arguing that the danger that a second jury would reexamine issues determined by a first jury was too great to permit the case to go forward as a class action. The judge had determined that the case would be split into two phases. The first phase would try principles of negligence to establish defendant responsibility and general causation, establishing that the dumped chemicals were capable of the alleged damage. If the plaintiffs prevailed, then individual trials would take place in which each class member would have to show that their homes were damaged by one or more defendants and what compensation would be appropriate. 

     On behalf of the plaintiff class, Peck explained that first jury's findings were binding on the second jury in a jury instruction would prevent any Reexamination Clause issue. In a 2018 decision, the Sixth Circuit, in the very case before the district court, had said as much. Peck argued that the defendants' issue was with that appellate decision, which was mandatory precedent under the law of the case and mandate rules so that the district court had no choice but to follow it. Moreover, Peck said, the defendants' issue is not really a Seventh Amendment issue but an objection to the court's case management choices, which is tested by whether the court abused its discretion. 

      The judge chose to take the issue under advisement.

CCL Opposes Dismissal of First Amendment Action

September 30th, 2022

     CCL told a federal court in Florida that the State's motion to dismiss a challenge to a 2021 law that prohibits contractors to advertise that they provide insurers with everything they need when a homeowner needs a roofing repair or replacement lacks merit. The case, RAF v. Griffin, in the Northern District of Florida, seeks to invalidate a variety of provisions in the new law that the State claims is needed to prevent insurance fraud.

      The State argued that the complaint alleged insufficient information for a facial challenge and, in many respects, had misinterpreted what the law permits and forbids. However, in its response, CCL showed that the State's Consumer Insurance Advocate, who the State proffered as an expert, interpreted the law the same way in defending the statute. The case is deep into the discovery process, even as the State seeks its dismissal. 

       In alleging widespread insurance fraud, the State told the Legislature that approximately ten percent of insurance claims are fraudulent, though it cited no source for that estimate. Even if taken at face value, CCL's brief said that the State's claims provided no justification for restricting advertising that does not seek to induce fraud but to win over customers worried about whether the insurance claims they legitimately have will be paid on a timely basis. It is particularly ironic that Florida seeks to prevent insurance claiming by homeowners who pay some of the highest premiums in the nation at the same time that Florida was hit by Hurricane Ian and suffered widespread devastation. Florida is especially vulnerable to extreme weather due to being surrounded on three sides by water.

Peck Argues Plaintiffs Seeking Increased Funding for the Courts Deserve their Day in Court

September 27th, 2022

     CCL President Robert S. Peck urged the Washington Court of Appeals to reverse the dismissal of an action by plaintiffs whose cases were delayed due to systemic underfunding of the courts, arguing that the State's arguments in favor of dismissal lack support.

      In Ralston v. Washington, the plaintiffs argued that decades of pleas by state supreme court chief justices had fallen on deaf ears in the Legislature and has systematically starved the courts of resources. The trial court dismissed the action without an opinion explaining the decision. Peck argued the state's arguments miscontrued precedent. 

      The State relied heavily on an argument that only the judiciary itself could sue for increased funding, but Peck pointed out that the judiciary does not exist for its own benefit but to serve the people through the fair and timely administration of justice. He pointed to decisions where the judiciary was not the plaintiff but that the cases were decided against those seeking increased funding because of a failure of evidence, rather than a lack of standing. 

       Peck also pointed to the state constitution's guarantee of access to the courts "without unnecessary delay," as well as its guarantee of an inviolate right of trial by jury. He countered the State's claim that the former applied only to the judiciary and only guaranteed public trials with a decision that invalidated a legislative obstacle to filing a case in court, a decision he himself won in the Washington Supreme Court. He also pointed to a federal decision from the Ninth Circuit that found delays of jury trials because of budgetary constraints to violate the federal Constitution.

     The case is under advisement.

Peck Participates in CJRI Board Meeting

September 24th, 2022

     CCL President Robert S. Peck participated in the biennial meeting of the Civil Justice Research Institute's board of advisers on September 24. The CJRI is a program of the University of California-Berkeley School of Law. 

     During the course of the meeting, Peck presented an upcoming white paper he co-wrote with two Berkeley students on gun-violence litigation.

CCL President Writes Blog Post about SCOTUS

September 18th, 2022

     Writing in his biweekly blog post for the Appellate Advocacy Blog, CCL President Robert S. Peck critiqued the North Carolina legislature's use of misleading history to argue that it should have unfettered discretion to set the federal voting rules in the state.

     The case, Moore v. Harper, forces the Supreme Court to consider the "independent legislature theory" that the federal Constitution designates state legislatures to make federal election rules without scrutiny from the state courts or any limitations imposed by the state constitution.

     The post, History Rewritten to Serve Selfish Ends – and Serve an Argument, explains that North Carolina's reliance on a draft of portions of the Constitution by Charles Pinckney Jr. is misplaced. The so-called draft Pinckney Plan that the state claims demonstrates the Framers' intent that state legislative decisions be unreviewable in the states was debunked by historians and no lesser an authority than James Madison, rightfully called the Father of the Constitution. Instead, as the authors of an article on the issue in Politico explained, the Pinckney Plan was an after-the-fact attempt by Pinckney to claim greater credit than he deserved for participating in the Constitutional Convention. In fact, the "plan" contains language from the Constitution that was only developed late in the Convention and that was at odds with positions Pinckney took during the assemblage. 

     Peck argues that use of such fractured history can generate judicial errors that will perpetuate revisionism that ill serves constitutional government.

Peck Presents on Civil Justice Issues in Upcoming Supreme Court Term

September 16th, 2022

      CCL President Robert S. Peck reviewed upcoming U.S. Supreme Court cases that involve civil justice issues at the annual preview hosted by the Law and Economics Center at George Mason University Antonin Scalia School of Law, along with John Beisner of the Skadden Arps law firm.

      The conversation started with Mallory v. Norfolk Southern Railway, a case involving personal jurisdiction under Pennsylvania's corporate registration statute, which has treated registration as consent to general jurisdiction for more than a century and was upheld by the Supreme Court in 1917. Modern caselaw and the Court's new heavy emphasis on originalism, the interpretative theory that treats the objective of those who framed and ratified the Constitution as determinative of its meaning, brings new questions into play on the state statute's validity. 

      Peck explained that, with Justice Gorsuch's recent concurrence suggesting a new look at fundamental concepts of personal jurisdiction, the case could provide a launching point for a new jurisprudence. He distinguished what was at issue in the Pennsylvania case, where the injury took place out of state, with a Georgia case also on the Supreme Court's docket, where there were more substantial connections to the state that justified the assertion of personal jurisdiction, indicating the Court could provide guidance.

      Other cases discussed included National Pork Production Council v. Ross (Dormant Commerce Clause), Axon Enterprise, Inc. v. FTC (whether a corporation under investigation by an independent federal agency could bypass the Administrative Procedures Act and challenge the agency's constitutionality in federal district court), and Health and Hospital Corporation v. Televsky (private right of action under statutes passed pursuant to the Spending Clause).

      Peck also highlighted two petitions from CCL's docket: Recht v. Morrisey (commercial speech) and Douglass v. NYK Line (personal jurisdiction).