News

     Arguing that a Fourth Circuit panel ruled inconsistently with both Supreme Court and its own precedents, CCL President Robert S. Peck filed a petition asking that the case be reheard en banc. The panel's decision two weeks earlier overturned a district court ruling that a West Virginia statute restricting attorney advertising violated the First Amendment.

      In upholding the statute, the Fourth Circuit decision found not constitutional issue with a law that prohibited attorney's from truthfully stating that a drug or medical device had been recalled. To the panel, the word "recall" was inherently misleading and could cause "medically unsophisticated" consumers to think that it was recalled by the government, even though recalls are voluntary actions of a manufacturer under federal law. As the petition pointed out, only attorneys advertising about drug and medical device cases are prohibited from using the word "recall." The FDA and manufacturers are still permitted in the challenged statute to use them in press releases and on web sites to tell the public a product has been recalled. Precedent forbids government from reserving the truthful use of a word to only certain speakers.

      An additional flaw the brief pointed out to the Fourth Circuit is that the panel utterly ignored the unrebutted evidence that West Virginia required attorneys to add a long list of disclaimers to the advertisement, so long that it took up 30 seconds of a 30-second television advertisement. That type of burden violates the First Amendment under Supreme Court precedent.

      A petition for rehearing en banc is discretionary with the court. No response is required from the State of West Virginia until requested by the court.

      CCL President Robert S. Peck explained the process the justices follow in drafting opinions to explain why the draft decision in the Mississippi abortion case can be authentic but not final for WUSA-9, the CBS affiliate in Washington, DC.

      As Peck explained, the chief justice or the most senior justice in the majority assigns the opinion, which, once a draft is completed, is circulated to the other justices. Some justices will join immediately; others will agree with its thrust by ask for changes. Still, others who are planning to dissent will incorporate responses to some of the arguments in the draft opinion. This process of back and forth continues until final opinions, majority, concurring, and dissenting, are complete.

      CCL President Robert S. Peck discussed four key ingredients to "The Art of Rebuttal" in a post to the Appellate Advocacy Blog, sponsored by the Law Professor Blog Network, to which he contributes every two weeks. 

      Peck's essential advice was to answer your opponent's best argument, answer questions posed by the judges to your opponent, don't waste time reiterating a point the judge has already made for you, and don't feel the need to use all of your time. 

     CCL President Robert S. Peck finished two days of meetings of the American Bar Association's Tort Trial and Insurance Practice Section (TIPS) in Baltimore. The council is the section's governing body. Peck has served on the TIPS Council for 15 years and will be ending his tenure on it in August. During the meeting, Peck recounted his representation in the ABA House of Delegates during its February meeting and gave a preview of issues that will be raised at its August meeting.

     In Cummings v. Premier Rehab Keller, the U.S. Supreme Court ruled that emotional distress damages, the only damages available to the plaintiff, were unavailable because such damages are rare in contract cases. In the case, a legally blind and deaf person was refused an American Sign Language interpreter at a physical therapy facility that accepted federal funding under the Rehabilitation Act and the Affordable Care Act. In accepting the funds, the facility pledged not to discriminate against any potential clients.

      The Supreme Court's ruling did not deny that the plaintiff suffered from illegal discrimination, but held that damages to compensate for emotional distress were not available. CCL filed an amicus brief in support of the plaintiff, making two points. The first argued that discrimination inherently involves emotional distress because it belittles the person as being less acceptable than others. That point was taken up by Justice Stephen Breyer in a dissent joined by Justices Sonia Sotomayor and Elena Kagan. CCL's second point is that courts that have belittled juries' ability to assess proper emotional distress damages err, because empirical studies continuously demonstrate that juries are well-suited to assess such damages. This point apparently succeeded with the Court, as the opinions did not take the bait offered by some advocates on the uncertainty of emotional distress damages.

     In Recht v. Morissey, the Fourth Circuit held today that West Virginia could ban lawyer advertising about drug and medical devices from truthful use of the word "recall," calling it a "loaded," "troublesome," and "misleading," as well as other provisions previously invalidated in a CCL case by a federal district court. CCL president Robert S. Peck pledged to seek rehearing en banc, describing the decision as inconsistent with Fourth Circuit and U.S. Supreme Court precedent. 

     The decision accorded significant discretion to the state legislature, even though First Amendment precedent required the state to demonstrate that the problems it addressed were real, would be materially advanced by the chosen methods, and that no less extensive approach would suffice. The decision also upheld disclosure requirements that took up 30 seconds in a 30-second advertisement without providing any rationale for doing so. It also treated a requirement that lawyers tell viewers to consult their physician before discontinuing use of any medication, even when the advertising had nothing to do with medication. Such a requirement has no justification in such a case. It further treated that disclaimer as factual and uncontroversial, even though the district court termed it "medical advice."

     The petition for rehearing en banc is due May 11.

     CCL President Robert S. Peck participated in the Spring 2022 meeting of the Legal Affairs Committee of the American Association for Justice, where he spoke about his recent argument in the Ohio Supreme Court in Brandt v. Pompa, a constitutional challenge to the damage cap applicable to personal-injury lawsuits.

      In Brandt, under a state statute, the trial court reduced a $20 million jury verdict to $250,000 where the plaintiff had been the victim, as an eleven- and twelve-year-old, of more than 30 sexual assaults by a friend's father, who had drugged her during sleepovers. Peck argued that the statute violated the state constitutional right to trial by jury, but also was unconstitutional as applied to Brandt because the legislature had no justification for treating her differently from those suffering permanent physical injuries, whose damages are not capped.

      The case, argued in late March, is currently under advisement, with a decision expected before the end of the year.

     In another case of government seeking compensation for Big Oil's misrepresentations about the impact of fossil fuels and its impact on sea levels and crumbling infrastructure, this time brought by the State of Delaware, the Third Circuit will determine whether the case belongs in state or federal court. CCL filed an amicus brief in support of the state's position on behalf of the National League of Cities and the U.S. Conference of Mayors.

     The briefing follows two decisions within the past week by the Fourth and Ninth Circuits, respectively, supporting Delaware's position. In its amicus brief, CCL argued that states and local government, just like any other plaintiff, have a right to choose the causes of action they seek to pursue and keep a case in state court by virtue of those choices. It further argued that federalism principles support the right of state and local governments to pursue compensation for injuries suffered from large, multinational corporations.

       The oil company defendants will have an opportunity to reply to the state's arguments, as well as its supporting amici, before setting the case for oral argument.

     Ruling just days after the Fourth Circuit held that Baltimore's lawsuit against Big Oil should return to state court, the Ninth Circuit similarly held that lawsuits brought by three California counties and one city belong in state court. CCL filed an amicus brief in the case supporting that result on behalf of U.S. Senator Sheldon Whitehouse.

      The ruling rejected various claims the oil companies' made that the lawsuit, framed in state law terms, actually asserted various federal causes of action that should be heard in federal court. In joining the Fourth Circuit and a prior similar ruling by the Tenth Circuit, the federal appellate court based in California agreed with its sister circuits that none of the claimed federal causes of action applied. 

       The amicus brief filed by CCL argued that the defendants' claims of federal jurisdiction were invalid, in part, because they had heavily and successfully lobbied against federal laws that might apply to climate change.

        The Baltimore case had returned to the Fourth Circuit after the U.S. Supreme Court had ruled that the court had failed to address all the bases for federal jurisdiction asserted by Big Oil, based on its faulty understanding of a law that permitted interlocutory appeals of all bases for a remand order. The defendants are expected to seek further review in the Supreme Court of the new orders from various federal courts of appeals.

      CCL President Robert S. Peck bemoaned the theater and lack of substance in the Senate Judiciary Committee's hearing on the nomination of Judge Ketanji Brown Jackson to the Supreme Court in an Appellate Advocacy blogpost.

       Reviewing some of the questions asked, Peck gave alternative "tongue-in-cheek" answers in place of the more appropriate ones given by Judge Jackson, who demonstrated an unflappable temperament in the face of exceedingly silly and posturing questions. The post can be found at "Tongue-in-Cheek Answers to Bizarre Questions."