News

      Congressional staff heard differing views about the Supreme Court's likely approach to cy pres next term in Frank v. Gaos. CCL President Robert S. Peck suggested that the Supreme Court is likely to take a very narrow view of the issue, based on the facts in the case. Peck presented, along with Adam Schulman, a lawyer with the group headed by Petition Ted Frank, who brought the challenge. The event was sponsored by the Congressional Civil Justice Academy, a part of the Law and Economics Center at the Antonin Scalia Law School at George Mason University.

      In Frank, the Ninth Circuit upheld a class action settlement that grew out of the information that Google acquired, used and distributed when Internet surfers use that search engine. Though the damage suffered by uninformed surfers was difficult to monetize and the case itself was three times challenged with motions to dismiss, a mediator suggested the settlement that both sides accepted. As part of the settlement, Google agreed to provide a permanent disclosure of what information it collects and how it uses it. In addition, Google agreed to pay compensatory damages of $8.5 million. After attorney fees, costs, and incentive compensation for the named class representatives, the court was left with $5.3 million to be distributed to 129 million class members, an average of 4.1 cents apiece. The court determined that distribution was infeasible given that a process for proof of claim and the process of sending checks would cost substantially more than the four cents each claimant was owed. Instead, the court entertained proposals for non-profit organizations that work in the area of Internet privacy as alternate recipients. 

     The organizations suggested provided the court with proposals about how the money would be spent to advance Internet privacy. After a seven-month process of examination, the court approved each of the organizations as highly qualified, even though it lamented that the groups were the "usual suspects" on this subject. Objector Frank proposed an alternative approach that would compensate only some members of the class at a $5 or $10 rate given the low claiming rate that might be accepted. While the Ninth Circuit held that that approach would have been acceptable, it found nothing wrong with the use of cy pres to send the money to the organizations, utilizing the deferential abuse of discretion standard of reviewing the trial court. 

      The Supreme Court will consider whether the approach approved by the Ninth Circuit comported with Rule 23's requirement that class action settlements be fair, reasonable and adequate.

      As part of a team of plaintiffs' lawyers, CCL participated in the writing and filing of briefs representing a proposed class of minority residents who were stopped-and-frisked by Chicago police without probable cause. The City of Chicago challenged class certification of the class, as well as the expert evidence in support of certification. Two briefs responded to Chicago's objections. 

    CCL President Robert S. Peck attended the 2018 Annual Meeting of the American Law Institute in Washington, DC on May 21-22. At the meeting, members debated and approved new Restatements of the Law on Liability Insurance and Intentional Torts to Persons. In addition, the ALI made further progress on the Restatement on tort liability for economic harm. THE ALI publishes the final restatements, which are very influential in the states in how the law might be modernized. ALI members are experienced lawyers, judges, and academics.

     In addition to the work of the ALI, Justice Ruth Bader Ginsburg was awarded the Henry J. Friendly Medal for her contributions to the law. Chief Justice John G. Roberts, Jr., a former law clerk to Judge Friendly, presented the medal to Justice Ginsburg. At an evening session, attendees were treated to a conversation between Justice Elena Kagan and former Solicitor General Paul Clement about the workings of the Solicitor General's office, moderated by Duke law dean David Levi.

     CCL's Robert S. Peck attended the Annual Leaders Forum Retreat held by the American Association for Justice in Einskerry, County Wicklow, Ireland. The retreat, at which Peck has served as a speaker in the past, featured prominent Irish legal figures speaking about their civil justice system. 

     Within a couple of hours of the filing of opposing counsel's brief, U.S. District Court Judge James Moody, Jr. issued an order staying discovery in Griffen v. The Supreme Court of Arkansas, pending a decision by the Eighth Circuit on CCL's petition for a writ of mandamus.

     Arkansas trial judge Wendell Griffen challenged his permanent recusal in death penalty cases after blogging and participating in two public protests on the issue and during part of which a case was pending before him. Upon an emergency petition filed by the state attorney general, the Arkansas Supreme Court issued the recusal order. The pending case was reassigned and the succeeding judge issued an order similar to the one Judge Griffen originally signed prior to his recusal.

    Judge Griffen filed a federal challenge to his recusal, naming the state supreme court and each of its justices as defendants. CCL represents the court, its chief justice, and two of the other justices. In response to motions to dismiss, federal judge Moody dismissed the Arkansas Supreme Court from the action, but permitted the case to continue against the individual justices. On behalf of all justices, CCL filed a petition for a writ of mandamus in the U.S. Court of Appeals for the Eighth Circuit. The Eighth Circuit ordered a response from Judge Griffen, and CCL filed a reply brief earlier this week.

     CCL also moved for a stay of discovery during the pendency of the mandamus petition. It was that motion Judge Moody granted Wednesday.

      Today, CCL filed a reply brief on behalf of all justices of the Arkansas Supreme Court in support of their petition for a writ of mandamus in Griffen v. The Supreme Court of Arkansas. The case asserts that a trial judge's civil rights were violated by an order of recusal issued by the Supreme Court. CCL represents the Court and three of its justices.

      The U.S. District Court dismissed the Arkansas Supreme Court from the action on CCL's motion, but maintained the lawsuit against the justices in their official capacity. A petition for a writ of mandamus was filed in the U.S. Court of Appeals for the Eighth Circuit, arguing that the case should not be permitted to go forward. In reply, the state trial judge argued that the recusal order amounted to an administrative personnel action against him, but today's brief demonstrated that the Supreme Court order had all the earmarkings of a judicial decision, immune from collateral attack in federal court and that recusal does not diminish or otherwise adversely affect a judge's office.

     One day after the Eighth Circuit indicated interest in the Petition for a Writ of Mandamus on behalf of justices of the Arkansas Supreme Court, CCL, on behalf of the seven justice of that court, filed a motion to stay discovery pending resolution of the justices' petition. 

     The federal judge presiding in the case had previously granted a temporary stay while the justices' motion to dismiss was pending. The current motion seeks the same treatment.

     A week after CCL filed a Petition for a Writ of Mandamus, the U.S. Court of Appeals for the Eighth Circuit ordered opposing counsel to file a response in the ongoing litigation between a state trial judge and members of the Arkansas Supreme Court. 

     The judge had sued the state's highest court and its justices, challenging a recusal order issued by the Supreme Court after the judge had participated in two public protests and commented in a personal blog on matters that came before him. The Arkansas Attorney General moved for the judge's recusal, and the Court granted it, making the reassignment from the cases a permanent one. The judge then sued in federal court, arguing that his rights were violated by the recusal order.

     In response to a motion to dismiss filed by CCL, the federal court dismissed the Arkansas Supreme Court from the action, holding that it was ineligible to be sued due to sovereign immunity. The judge, however, allowed the case to continue with the justices as defendants, which prompted a joint petition for mandamus. Mandamus is considered an extraordinary remedy, and opposing counsel does not need to respond to it unless requested by the appeals court. Here, the court did just that, requiring a response as soon as was convenient. That order is considered a good sign that the Eighth Circuit could take up the request for mandamus.

  As a member of the committee, CCL President Robert S. Peck attended a rare meeting of the ABA Amicus Curiae Committee in Washington, DC, where the Committee discussed plans to streamline its process and continue to assure quality briefing. ABA President Hillary Bass attended the meeting and was joined at the committee dinner by ABA President-elect Robert Carlson.

     CCL argued that a but-for standard is the appropriate requirement for proximate cause under the Fair Housing Act (FHA) in a brief filed in the Eleventh Circuit in the consolidated cases of City of Miami v. Bank of America Corp. and City of Miami v. Wells Fargo & Co. CCL represents Miami in this remand from the U.S. Supreme Court in a case argued by CCL President Robert S. Peck and decided a year ago.

     The Supreme Court held, 5-3, that Miami had standing to bring a private enforcement action under the Fair Housing Act, affirming the Eleventh Circuit's unanimous decision. However, it held that the Eleventh Circuit had relied upon too lenient a standard -- foreseeability alone -- in deciding whether Miami's injuries were legally caused by the Banks' discriminatory lending practices. It sent that issue back to the lower courts for a determination of the "contours" of the proximate cause requirement and what side of the line the City's injuries fell.

      The Eleventh Circuit ordered simultaneous briefing by the parties. CCL's brief on behalf of Miami argued that an Eleventh Circuit decision, as well as decisions under other federal statutes, supported the but-for approach, which holds causation to exist as long as the violation is a substantial or significant contributor to the injuries. It further argued that Congress had ratified the types of injuries that Miami claimed in its 1988 amendments to the FHA by endorsing the "broad holdings" of two cases that claimed damages indistinguishable from Miami's.

      The Eleventh Circuit will now decide whether to entertain oral argument on the issue.