CCL Opposes Dismissal of Willful and Wanton Counts in Illinois Nursing Home Case

November 17th, 2020

CCL Argues Imposing State Personal Jurisdiction Standards in Admiralty Case Renders Rule 4(k)(2) Unconstitutional

November 12th, 2020

     In a reply brief filed in the Fifth Circuit, CCL argued that treating Federal Rule of Civil Procedure 4(k)(2) as just another form of general jurisdiction renders it facially unconstitutional, stating that no court should casually render such a constitutional determination. 

     In Douglass v. NYK Line, the Fifth Circuit will decide whether the "at home" standard used for general jurisdiction in state courts applies to personal jurisdiction in a federal cause of action filed in federal court. Rule 4(k)(2) was written to fill a gap in federal personal jurisdiction and, by its terms, permits federal courts to exercise personal jurisdiction over companies with substantial national contacts but insufficient presence to be subject to jurisdiction in a state court. As the CCL brief points out, if a company has a sufficient presence to be at home in the U.S., then it is at home in one of the states -- and Rule 4(k)(2) cannot apply. As a result, imposing an "at-home" requirement on top of Rule 4(k)(2) as a matter of Fifth Amendment due process renders the rule null and void.

      The Douglass case arises from a collision between the U.S.S. Fitzgerald, a U.S. Navy destroyer, and a much heavier container ship. The collision killed seven American sailors and injured 40 others. The case was filed in the U.S. District Court for the Eastern District of Louisiana, which dismissed the matter for lack of jurisdiction over the Defendant, a Japanese corporation.


First Circuit Holds that Appeal from Denial of Federal Officer Removal Does Not Open the Door to Appealing Other Grounds for Removal

October 29th, 2020

     The federal First Circuit today held that denial of grounds for removal from state to federal court based on claiming to be a federal officer, while subject to appeal, does not open the door to appealing any other basis asserted in the removal. The decision in State of Rhode Island v. Shell Oil Company, a lawsuit over the oil companies' misrepresentations about the effects of oil use on climate change, is one of a number of cases in which federal courts have reached identical conclusions, with only some older cases in other appellate courts going the other way. In today's case, CCL represented the National League of Cities, the U.S. Conference of Mayors, and the International Municipal Lawyers Association as amicus curiae, or friends of the court.

     A similar decision from the Fourth Circuit in a case brought by Baltimore was accepted for review by the U.S. Supreme Court in September. Briefing is now underway in the Baltimore case.

CCL's Robert S. Peck Recognized with "High Honors" for Pro Bono Work

October 29th, 2020

     The District of Columbia Courts announced today Center for Constitutional Litigation President Robert S. Peck has made its 2019 Pro Bono Honor Roll with "High Honors," the highest recognition it gives. The program, which dates back to 2011, is a joint project of the courts, the D.C. Access to Justice Commission, and the D.C. Bar Pro Bono Center. In awarding high honors to Peck, the courts recognize that he has provided more than 100 hours of pro bono legal work.


CCL President Interviewed about Upcoming Supreme Court Term

October 27th, 2020

     CCL President Robert S. Peck said that advocates on a wide range of issues were looking at the Supreme Court's newest member in calculating the likelihood that they can get their issues reviewed in that court, in an interview with WUSA9, the Washington, DC CBS affiliate. He emphasized that, at this earliest stage of her tenure, people are making what may best be described as educated guesses at how she might view any particular issue

     As an example, he noted that the Mississippi Attorney General had just filed a supplemental brief that was plainly written with newly confirmed Justice Amy Coney Barrett in mind in seeking review of a state statute that eliminated any right to abortion after the 15th week of pregnancy. The case, Dobbs v. Jackson Women's Health Org., goes to conference on October 30, where the Supreme Court could decide whether to take the case for plenary review and, if it takes the case, could decide whether Roe v. Wade remain a viable precedent. The brief makes the calculation that Justice Barrett would provide the vote necessary to approve the restriction that otherwise could not be reconciled with existing abortion precedents.

CCL's Peck Interviewed on Supreme Court Jurisdiction Case

October 10th, 2020

     CCL President Robert S. Peck told TRIAL magazine that oral argument in a major personal jurisdiction case before the Supreme Court demonstrated unexpected dissatisfaction by members of the Court with their recent jurisprudence. Over the past decade, the Court has increasingly restricted the authority of state courts over out-of-state defendants.

     However, in Ford v. Montana Eighth Jud. Dist. Ct., consolidated with another Ford case from Minnesota, the justices seemed to realize that it made little sense to say that there was some type of fundamental unfairness to making Ford appear in the Montana and Minnesota courts for injuries that occurred in those states from an allegation of product defect. In both instances, the vehicle was originally sold in another state, but the same model was sold and serviced in the forum states.

      Ford asked the Court to rule that it may only be sued in its place of incorporation, its headquarters state, the state where the car was manufactured, or, possibly, the place of first sale. Justices who had been part of the precedents that had restricted jurisdiction questioned the meaning of fair play under the Due Process Clause, that had led to a narrowing of personal jurisdiction. 

     The case, originally slated to be argued last April but postponed due to the pandemic, will be decided before the current Supreme Court term ends next June.

CCL Wins Discovery Limitation Battle for City of Sacramento against Wells Fargo

October 9th, 2020

     The U.S. District Court for the Eastern District of California denied a motion to limit the discovery the City of Sacramento could take in connection with its allegations that Wells Fargo & Co. had issued discriminatory mortgage loans in violation of the Fair Housing Act (FHA). CCL's Robert S. Peck argued the motion for the City on March 6. The court indicated that the coronavirus pandemic delayed resolution of the argued motion before today.

     The City alleged that, since 2004, the bank had issued loans that were either more expensive or riskier on the basis of race, resulting in a significant number of foreclosures to minority borrowers and reducing the City's property-tax revenue. Wells Fargo, which had used the same tactic in other similar cases, moved to bifurcate discovery, limiting the scope of discovery to the two-year period before the complaint was filed and then challenging the City to prove its entire case on that basis before being permitted to show a continuing violation.

     Peck argued, and the court agreed, that the information then obtained would not be statistically significant and would be inconsistent with U.S. Supreme Court FHA jurisprudence that treats continuing-violations, as defined in the statute, differently from isolated violations. The court held that limiting the period of discovery to the two-year period would unfairly handicap the City's case and denied Wells Fargo's motion.

     The case now moves into the discovery phase.

CCL Files Brief on Best Buy Warranty Issue

September 30th, 2020

     The Center for Constitutional Litigation, working with Paul A. Rothstein, P.A., told the U.S. Court of Appeals for the Seventh Circuit that Best Buy's Geek Squad Protection Plan is a warranty under the federal Magnuson-Moss Warranty Act and that it should reverse dismissal of this action by the district court in an opening brief filed today.

      Tawanna and Anthony Ware purchased a $3,000 Samsung plasma television from Best Buy after its sales people and store manager advised them that the warranty that comes with the television is generally worthless because the electronic will work fine for the warranty period. They advised purchasing the protection plan to extend the warranty, protect themselves from failures of materials and workmanship for a five-year period. They made the sale more attractive by giving the couple a $300 discount if the extended warranty was purchased. 

      When the television failed after Samsung stopped manufacturing plasma televisions and could not be fixed, Best Buy reneged on the promised to replace or refund the full purchase price, claiming that the plan was actually a service plan, not a warranty. The Wares brought suit in a putative class action under Magnuson-Moss, but the case was dismissed because the Court credited an Federal Trade Commission regulation that distinguished warranties from service contracts if extra consideration was paid. The fact that Best Buy called and promoted the plan as a warranty and treated the television and plan as a single transaction in a bundle did not move the district court. Meanwhile, Magnuson-Moss itself defines a warranty as part of the same transaction if it was part of the basis for the bargain. The conflict between the statutory language and the regulation is at the heart of this consumer action. Today's filing is the start of the briefing process.

CCL's Peck Explains Supreme Court Process on TV

September 29th, 2020

     CCL President Robert S. Peck explained to viewers of the Washington, DC CBS station how cases reach the United States Supreme Court and why various groups are focused on who will replace the late Justice Ruth Bade Ginsburg. 

     Peck's interview covered the Supreme Court's processes, including petitions for certiorari, as well as some of the cases now in the pipeline for possible decision by the Court for WUSA-9.

Peck Participates in Supreme Court OT20 Preview

September 25th, 2020

     CCL President Robert S. Peck spoke today in a preview of the upcoming U.S. Supreme Court term sponsored by the Law and Economic Center of the Antonin Scalia Law School at George Mason University. 

      During the hour-long online program, Peck and John Beisner, a defense counsel from the Skadden Arps law firm, discussed upcoming cases on personal jurisdiction, the authority of the Federal Trade Commission to seek consumer restitution for deceptive lending, mandatory arbitration, and the judgment bar in the Federal Tort Claims Act, as well as answered questions from the online audience.