News

     CCL President Robert S. Peck attended and contributed to discussions of the American Law Institute's Concluding Provisions draft in Philadelphia as part of its decades-long effort to update its Restatement of Torts.

      During the meeting, discussants probed and suggested changes to sections on medical malpractice, vicarious liability, spoliation, and miscellaneous issues in tort law. The small-group effort will result in further revisions that will be the subject of future discussions.

     CCL filed a Fourth Amended Complaint challenging a 2021 Florida law that restricted advertising and marketing by roofing contractors in order to discourage property insurance claims by homeowners. Among other things, the law prohibits advertisers from directly or indirectly encouraging or inducing an insurance claim. To avoid the prohibition under an amendment enacted in special session in 2022, the roofing contractor must add lengthy disclaimers that warn homeowners against filing fraudulent claims. According to the State, a small minority of claims, on the order of ten percent, are fraudulent, though, to date, the State has not explained how it arrived at that figure.

     The case is pending in the U.S. District Court for the Northern District of Florida. The plaintiffs are a large roofing contractor and a trade association whose members include roofing contractors. The defendants are the state officials who run the agencies charged with regulating and licensing contractors.

     The Illinois Appellate Court will consider whether a gubernatorial executive order provides blanket immunity to a nursing home sued over five COVID-related deaths in late April-early May 2020. In an executive order issued at the beginning of April and reissued in May of that year, Illinois Governor J.B. Pritzker extended the State's own immunity from suit to health-care providers who rendered assistance to the State in its battle against the coronavirus.

       In the five wrongful-death cases filed during that period, the trial court denied the nursing home's motion to dismiss based on the executive order. However, it did not rule on the dispute between the parties on whether the nursing home actually rendered any assistance. As the brief for the plaintiffs filed today argued, discovery established that the nursing home did nothing that it did not normally do in response to COVID, other than to re-use procedural masks made for one-time use by staff who dealt with residents with COVID symptoms, but not with those who died and sued in these cases. As a result, the brief argued that the nursing home did not render assistance to the State that qualified for immunity, particularly since its meager effort was unrelated to its treatment of the decedents. Moreover, the brief argued any other reading of the executive order would render it unconstitutional as exceeding the Governor's authority.

      In addition, the brief urged the court to dismiss the appeal as improvidently granted because this type of interim appeal is not available where a factual dispute continues to exist but is instead reserved for pure legal questions likely to resolve the litigation. 

      The nursing home will now have an opportunity to file a reply brief in response.

    In a reply brief filed in the Seventh Circuit, CCL joined the legal team for Cook County in arguing that the federal district court erroneously excluded the county's expert witnesses, held that the county could not meet the Fair Housing Act's proximate cause requirement for its injuries, and that Bank of America should receive summary judgment in its favor in this nearly decade-long case.

     Cook County filed this case in 2014, alleging that the Bank intentionally and with a disparate impact provided minority neighborhoods with toxic mortgages that were likely to lead to foreclosure even when the borrowers qualified for better mortgages so that the Bank stripped the borrowers of the equity they had in their homes and foreclosed on them in violation of the FHA's anti-discrimination requirements. 

      Cook County appealed the ruling against them, arguing that the judge made fundamental errors in her decision. Bank of America's brief then signaled its agreement with the judge. CCL President Robert Peck was added to the legal team representing the county and contributed to the reply brief filed today. In it, CCL's contribution concentrated on the history and text of the FHA to demonstrate that the County fit within its protective purposes, as the Supreme Court had recognized, and that the expert evidence proffered met the standard the Supreme Court had set out, demonstrating an acceptable methodology used the federal government itself.

      The case now awaits an oral argument date, where Peck will make the argument. Previously, Peck prevailed on similar issues on behalf of the City of Miami in a 2017 Supreme Court case against both Bank of America and Wells Fargo.

     As a member of the American Law Institute consultative group for the Restatement of Consumer Contracts, CCL President Robert S. Peck filed comments suggesting that the latest draft underplayed consumer expectations as a metric for determining the validity of contract provisions imposed by businesses on their customers. 

     Peck's comments recalled the discussion at the ALI Annual Meeting, where consumer expectations were discussed. He also provided caselaw and examples to bolster his position.

     The Consumer Contracts Restatement was approved, subject to final adjustments at the May meeting. The new draft and Peck's comments are part of those final adjustments.

     In a brief filed in federal court in Florida, CCL argued that the multiple grounds asserted by the State to dismiss a challenge to restrictions on advertising and solicitation by roofing contractors should be denied. The State asked the Court to dismiss the case with prejudice, but CCL's brief shows why the case is both viable and should succeed on the merits.

      The case involves a Florida statute that, among other things, requires roofing contractor advertising to avoid any direct or indirect suggestion that the homeowner should file a claim with its insurer to cover damage or loss under a property insurance policy. The State claims that the provision is part of an anti-fraud measure, but CCL's points out that the advertising does not seek to encourage fraudulent claiming, only legitimate claims. Moreover, the State has conceded that only a small percentage of claims are fraudulent, though it has also failed to explain how it obtained that figure.

     The case is pending in the U.S. District Court for the Northern District of Florida. It is captioned Restoration Association of Florida v. Griffin. 

     Members of the ABA House of Delegates approved two resolutions as ABA policy in which CCL's Robert S. Peck played a key role. The first enacted new model rules for the governance and operation of legal referral programs, and the second reaffirmed existing ABA policy limiting the payment of legal fees to non-lawyers. 

      The first resolution, originally proposed but withdrawn in February, updated decades-old rules concerning legal referral projects. However, as proposed, the new rules would have permitted for-profit, non-lawyer legal referral programs to share contingency fees earned by the lawyers who received the referral, while imposing none of the client confidentiality or conflict of interest rules applicable to lawyers. In addition, the proposed rules had a weak transparency provision for the algorithms used by online legal platforms. Based on an amendment drafted and moved by Peck, the model rules now have a prohibition against fee-sharing with non-lawyer legal referral programs and a more demanding transparency requirement. 

       Peck was also one of the leaders of a group that proposed a reaffirmation of a 2000 policy adopted by the ABA in the face of efforts to expand fee-sharing with non-lawyers. That policy passed unanimously after opponents of the resolution agreed to an amendment that also reaffirmed a policy encouraging innovation in building greater access to justice. Peck explained that the resolution he supported did not threaten innovation or access to justice, a key part of his practice, but that permitting large corporations to practice law or take over legal practices would not benefit people in need of legal help. With agreement on the amendment, opposition evaporated, and the resolution passed. 

     In its pending challenge to a Florida statute that limits marketing strrategies by roofing contractors, CCL President filed his brief in opposition to the State's motion to dismiss. The motion claims that the complaint should be dismissed with prejudice because it fails to state a viable claim.

      CCL's opposition, filed by President Robert S. Peck, lays out the claims and why it remains not just viable but meritorious. To the extent that the State's motion focuses on formatting issues, the opposition asserts that the complaint could be easily renumbered to satisfy the State's concerns.

      The Hastings Law Journal has published CCL President Robert S. Peck's article, The Coming-Products Liability Revolution, originally presented as a paper at a symposium sponsored by the Pound Civil Justice Institute and the UC Hastings Center for Litigation and the Courts last November in San Francisco.

      Peck's article discusses how connected products, sometimes referred to as "smart" products, remain connected to manufacturers, who provide updates and maintain extensive control over the products even while in the consumer's possession. Old notions that products must be fit for use at the time they leave the manufacturer's or retailer's hands no longer make sense. Instead, Peck suggests that a form of strict liability must attach to injuries caused by products and relies on a long history of tort law to demonstrate why evolving concepts of liability accompany innovative technological advances.  

     In his latest post on the Appellate Advocacy Blog, CCL President Robert S. Peck discusses a court's rejection of a brief for violating its rule against excessive footnoting. Many courts and judges look askance at footnotes, but some of the practice's harshest critics used them in opinions regularly. Peck's advice and description of the problem can be read at Too Many (Foot)notes.