News

     In a post on the Appellate Advocacy Blog, CCL President welcomed readers to 2022 with some predictions about high-profile cases likely to be resolved in 2022. The post is available here: Welcome to 2022.

     The U.S. Conference of Mayors and the National League of Cities emphasized federalism considerations in an amicus brief filed in the Third Circuit in support of the City of Hoboken, New Jersey's climate-change lawsuit, seeking damages for infrastructure injuries due to oil companies' false claims about gasoline emissions. CCL filed the amicus brief along with Janet, Janet & Suggs.

      The defendant oil companies moved the case from state court to federal court and resisted the return of the case to New Jersey state court on claims that it constituted a federal cause of action. The amicus brief filed today explained that municipalities, like all other plaintiffs, are masters of their complaint and have a right to choose the court in which their state-based claims are heard. 

    In his latest post on the Appellate Advocacy Blog, CCL President provides some suggestions when it appears an appeal was derailed by a new decision that somehow fails to account for a contrary precedent because neither the court nor the advocates apparently found the earlier case. What Do You Do When a Superior Court Misses a Conflicting Precedent.

      Representing investors who sued Edward D. Jones (EDJ), the financial management company, a CCL brief urged the Supreme Court to deny certiorari after the Ninth Circuit held that the case could move forward. 

      As co-counsel with Franklin D. Azar and Associates, CCL represents a putative class of passive investors, who purchase stock and then hold it while its value appreciates. They held their investments at EDJ, which only charged commissions when the stocks held were traded. Because these investors rarely traded, EDJ did not make any profit on the funds held. To make these investments generate money, EDJ convinced the investors to switch to annual management-fee accounts that charged them for "advice" on maintaining or increasing their investments. Although no advice was ever given, the cost to investors was substantially greater.

     The investors then sued under state law, arguing that EDJ's failure to conduct a suitability analysis before pushing for the change in the accounts. EDJ countered by arguing that federal Securities Litigation Uniform Standards Act (SLUSA) preemptively barred any lawsuits. A federal district court sided with EDJ and dismissed all claims with prejudice. The Ninth Circuit, however, unanimously reversed, finding that the claims were not premised on the sale or purchase of a security, a requirement for application of SLUSA, but instead on fees charged for passive accounts.

      EDJ argues that the federal circuit courts are in disagreement about what constitutes a qualifying sale or purchase, with some relying on Supreme Court precedent that the basis of the lawsuit must merely "coincide" with a sale or purchase, while others rely on subsequent Supreme Court precedent that requires the complaint topic be "material" to a purchase or sale. In its opposing brief, CCL argues that the dispute between "coincide" or "material" is irrelevant to this case because the gravamen of the complaint has no connection at all with a sale or purchase. 

     An EDJ reply brief is expected in early January. Afterwards, the Supreme Court will review the case in conference to determine whether to take up the matter.

     CCL joined with the Fitch Law Firm on a reply brief that argued that a state statutory limit on damages should not apply to a young teenager's case against a man who raped her 34 times.

      The case, Brandt v. Pompa, involves a defendant convicted of repeated rapes of young girls, where his own daughter would invite them for a sleepover during which they would be drugged and raped. A jury hearing the civil case returned a verdict of $20 million in compensatory damages for the now-26-year-old plaintiff, who was traumatized and went homeless for a period while trying to recover from the emotional toll she suffered. Under a state law, however, that $20 million verdict was reduced to $250,000 under a state tort reform law. The plaintiff challenged the law's constitutionality, both as applied and on its face.

      Represented by a large law firm, the defendant argued that the case was moot because the defendant could never pay the verdict and that the law serves compelling state interests identified by the Ohio General Assembly that should receive deference from the state Supreme Court. Those arguments were echoed in briefs filed by the U.S. Chamber of Commerce and other business interests. The Ohio Attorney General also filed an amicus brief in support of the law, indicating that a change, which he supported, should be enacted by the legislature to assure that the law does not reach this situation, but that the courts have no business making that determination.

      In reply, the plaintiff's brief explained that collectibility is not a consideration in determining mootness, which could have been raised at the trial level, if it were a valid basis for avoiding a decision. It further explained that applying the damage limit to this case served no valid state purpose, as there is no interest in protecting rapists from valid judgments, no economic interest that serves the State in applying the cap here, and no basis for claiming that stability in the justice system is enhanced by capping these damages.

       Oral argument in the case is likely to be scheduled in the Spring.

     Highlighting some of its achievements of the past six months, the Civil Justice Research Initiative (CJRI) at Berkeley Law School began its biennial advisory board meeting with a discussion of key findings in a paper on civil juries, co-authored by CCL President Robert S. Peck, along with law professors Richard Jolly and Valerie Hans. The paper, published in November, provided a history of civil juries, a review of key precedents on the use of juries, and empirical data on the negligible number of jury trials being held, while studies uniformly confirm that jurors do a good job. It also contains recommendations on how to revive this necessary institution.

    All three authors are members of the advisory board at CJRI, an initiative started by Berkeley Law Dean Erwin Chemerinsky.

      Highlighting excellent appellate advocacy in the Supreme Court argument over Mississippi's abortion case, CCL's Robert S. Peck highlighted some of the best advocacy moments during the argument in a post on the Appellate Advocacy Blog. The post discusses Can an Oral Advocate Learn Anything from Last Week's Supreme Court Hearing on Abortion? 

     CCL filed its reply brief in support of its challenge to the Texas medical-malpractice noneconomic damage cap, arguing that the Seventh Amendment qualifies for application to the States and its preservation of the jury trial as known at common law prevents artificial, one-size-fits-all damage caps on common-law causes of action. The case, Winnett v. Frank, is pending in the U.S. District Court in the Western District of Texas. 

     CCL's brief responds to substantive arguments against application of the Seventh Amendment and the jury-trial right as an obstacle to legislated revision of verdicts made largely by the defendants and the Texas Hospital Association, which intervened in the lawsuit. In addition, CCL responded to procedural objections filed by the Texas Attorney General, who also intervened.

     The attorney general argued that the case should be dismissed because it isn't ripe and because no plaintiff had yet had the legislative cap applied in their underlying medical malpractice case. CCL responded by asserting that its lawsuit is a well-recognized form of preenforcement challenge to a statute, that the defendants had asserted the cap as an affirmative defense in medical malpractice cases, and that the imminent enforcement of the cap affected trial strategy, evaluation of settlement offers, and the type of evidence that would be offered at trial, even if the cap is never applied.

     CCL also argued that the Supreme Court had authoritatively held that juries are the "judges of damages" in a 1998 decision, Feltner v. Columbia Pictures Television, Inc., and that replacing their factfinding, even under the guise of "applying the law," denied the full meaning of a jury trial as guaranteed by the Constitution.

     In the case, CCL represents the plaintiffs along with the Houston law firm of Hampton & King. Oral argument in the case is scheduled for January 7.

     In a California medical-malpractice case, CCL joined trial counsel in filing an opposition to the defendant's attempt to reduce the jury's verdict to $250,000 in noneconomic damages and to pay the damages to be incurred in the future over time. 

    In Merlo v. Pristine Surgery Center, a jury found an ambulance company and its paramedics liable for putting the patient in a permanent vegetative state by misplacing a breathing tube and assessed $50 million in damages. Of that amount, $20 million comprised noneconomic damages, which state law requires be reduced to $250,000. The defendant had turned down a pre-verdict settlement offer of $5 million for the entire matter.

    The newly filed brief challenges the constitutionality of the damage-cap law and its provision allowing periodic payments of future damages. The cap, the brief argues, violates the right to a jury trial, among other things. The periodic payments provision, it further contends, creates a windfall for defendants because the jury first is instructed to reduce the verdict to present value, discounting the future damages as a result on the assumption that the future damage money could be invested and grow over time. A periodic payments plan then discounts it again, because it withholds that money so it cannot be invested and grow, violating equal protection and due process, the CCL filing argues.

     In a challenge to the Texas statute that limits damages in medical malpractice cases brought in federal court, CCL filed its opposition to a motion to dismiss made by the Texas Attorney General on behalf of the state judicial defendants. The opposition also questioned the propriety of the Texas Attorney General filing a response in support of his own motion as both an attempt to evade the page limits on motions and improper because court rules only permit a response from those opposing the motion.

     The opposition noted that Section 1983 permits injunctions against enforcing state laws against state judges after a declaratory judgment was obtained. The current motions before the court seeks that declaratory judgment. The U.S. Supreme Court had previously permitted actions against judges who enforce unconstitutional laws.

     Subsequent to CCL's filing, the U.S. Supreme Court held that Texas judges could not be defendants in a Section 1983 preenforcement challenge to a statute in the high-profile S.B. 8 case, in which abortion providers sued over a new state vigilante bill that put a bounty on those who perform or assist in obtaining abortions. As a result, CCL will dismiss the judges in its case and proceed against the other defendants.