LCJ's AMICUS PROGRAM
FighTING FOR PROCEDURAL FAIRNESS IN TRIAL AND APPELLATE COURTS
For LCJ, amicus briefs are an opportunity to deploy our extensive knowledge about procedural fairness whenever and wherever it’s needed, regardless of the court.
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LCJ is the preeminent corporate and defense expert on the Federal Rules of Civil Procedure (FRCP). Since its founding in 1987, LCJ has advocated for rule reforms aimed at helping the FRCP achieve Rule 1’s objective of securing “the just, speedy, and inexpensive determination of every action and proceeding.” LCJ’s amicus program is integral to our mission because judicial interpretations can dramatically change a rule’s effectiveness. As amicus curiae, LCJ employs its deep experience and unique perspective to help ensure sensible interpretations of civil rules. The below cases are representative of LCJ’s amicus program.
If you would like for LCJ to consider a request for amicus support, please complete this form and email it to office@lfcj.com. |
Featured amicus victorIES
U.S. Court of Appeals for the Sixth Circuit declares federal rules of civil procedure have force of law
LCJ filed an amicus brief, authored by Mary Massaron (LCJ member and a partner at Plunkett Cooney), asking the Court to enforce the FRCP by issuing a writ of mandamus to correct three rulings of the district court that did not conform to the rules' requirements. This included the district court's disregard of Rule 16(b) in granting leave to amend a complaint 19 months after the deadline and well after the close of discovery. The district court also failed to consider the defendants' motion to dismiss the amended complaint.
This is an enormously important ruling not only for this high-stakes multi-district litigation, but also because it holds that MDLs must comply with the FRCP just like in any other case - a position LCJ has been advocating strongly as part of our Rules4MDLs project. The panel clearly stated that there is no "MDL exception" to the FRCP.
The Sixth Circuit ruled that “the district court’s decision to grant leave to amend was plainly incorrect as a matter of law...” and ordered that the counties’ November 2019 amendments to their complaints, adding dispensing claims against the pharmacies roughly 17 months after the deadline for such amendments, be stricken. You can read the opinion here.
The court continued: “What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases. The rules at issue here are the Federal Rules of Civil Procedure, which have the same force of law that any statute does.”
The ruling concludes: “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For neither § 1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in MDL ones.”
This is an enormously important ruling not only for this high-stakes multi-district litigation, but also because it holds that MDLs must comply with the FRCP just like in any other case - a position LCJ has been advocating strongly as part of our Rules4MDLs project. The panel clearly stated that there is no "MDL exception" to the FRCP.
The Sixth Circuit ruled that “the district court’s decision to grant leave to amend was plainly incorrect as a matter of law...” and ordered that the counties’ November 2019 amendments to their complaints, adding dispensing claims against the pharmacies roughly 17 months after the deadline for such amendments, be stricken. You can read the opinion here.
The court continued: “What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases. The rules at issue here are the Federal Rules of Civil Procedure, which have the same force of law that any statute does.”
The ruling concludes: “MDLs are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For neither § 1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in MDL ones.”
OUR MOST RECENT AMICUS BRIEFS
DANIELS-FEASEL v. FOREST LABS
Building on LCJ's success in advancing the amendment clarifying Federal Rule of Evidence 702, the newest brief in LCJ’s amicus program supports the affirmation of a federal district court decision properly utilizing the rule to exclude expert testimony.
In the amicus brief filed in the Second Circuit Court of Appeals, LCJ argues that the district court’s “rigorous examination” of expert testimony to “ensure reliability” is at the heart of the district court's "gatekeeper" role under Rule 702. The LCJ amicus brief urges the Second Circuit to affirm the order of the United States District Court for the Southern District of New York excluding plaintiffs’ expert testimony on general causation, concluding that the district court carefully and accurately applied the standard well established by the Second Circuit that requires a “hard look” at each expert’s methodology.
LCJ’s amicus brief in Daniels-Feasel v. Forest Labs is available here.
Building on LCJ's success in advancing the amendment clarifying Federal Rule of Evidence 702, the newest brief in LCJ’s amicus program supports the affirmation of a federal district court decision properly utilizing the rule to exclude expert testimony.
In the amicus brief filed in the Second Circuit Court of Appeals, LCJ argues that the district court’s “rigorous examination” of expert testimony to “ensure reliability” is at the heart of the district court's "gatekeeper" role under Rule 702. The LCJ amicus brief urges the Second Circuit to affirm the order of the United States District Court for the Southern District of New York excluding plaintiffs’ expert testimony on general causation, concluding that the district court carefully and accurately applied the standard well established by the Second Circuit that requires a “hard look” at each expert’s methodology.
LCJ’s amicus brief in Daniels-Feasel v. Forest Labs is available here.
3M COMPANY; ARIZANT HEALTHCARE v. GEORGE AMADOR
Lawyers for Civil Justice urges the Supreme Court to grant certiorari to address the Eighth Circuit’s application of a gatekeeping standard for the admission of expert evidence that differs from Federal Rule of Evidence 702. The rule, and not any other source of law, provides the test that district courts must use to assess whether a proffered expert’s opinions are admissible.
Gatekeeping practices that conflict with Rule 702, such as those applied by the Eighth Circuit, have become a widespread, recognized problem. The Judicial Conference Advisory Committee on Evidence Rules reported that it “has determined that in a fair number of cases, the courts have found expert testimony admissible even though the proponent has not satisfied the Rule 702 (b) and (d) requirements by a preponderance of the evidence.”
Read the entire brief here.
MONSANTO COMPANY v. EDWIN HARDEMAN
Lawyers for Civil Justice is urging the Supreme Court to grant certiorari to address the Ninth Circuit’s purposeful application of a gatekeeping standard that departs from Federal Rule of Evidence 702. It also argues that Rule 702, and not any other source of law, provides the test that district courts must use to assess whether a proffered expert’s opinions should be admitted. In Monsanto Company v. Edwin Hardeman, the court’s use of an alternative standard to Rule 702’s rigorous gatekeeping requirements for proffered opinion testimony allowed the inclusion of disputed “evidence.” The 9th Circuit decision, along with the patchwork of varied approaches that often overlook Rule 702’s role in expert evidence admissibility, has catalyzed the immediate need for a preponderance of the evidence standard to be codified within the text of the rule.
Read the entire brief here.
Lawyers for Civil Justice urges the Supreme Court to grant certiorari to address the Eighth Circuit’s application of a gatekeeping standard for the admission of expert evidence that differs from Federal Rule of Evidence 702. The rule, and not any other source of law, provides the test that district courts must use to assess whether a proffered expert’s opinions are admissible.
Gatekeeping practices that conflict with Rule 702, such as those applied by the Eighth Circuit, have become a widespread, recognized problem. The Judicial Conference Advisory Committee on Evidence Rules reported that it “has determined that in a fair number of cases, the courts have found expert testimony admissible even though the proponent has not satisfied the Rule 702 (b) and (d) requirements by a preponderance of the evidence.”
Read the entire brief here.
MONSANTO COMPANY v. EDWIN HARDEMAN
Lawyers for Civil Justice is urging the Supreme Court to grant certiorari to address the Ninth Circuit’s purposeful application of a gatekeeping standard that departs from Federal Rule of Evidence 702. It also argues that Rule 702, and not any other source of law, provides the test that district courts must use to assess whether a proffered expert’s opinions should be admitted. In Monsanto Company v. Edwin Hardeman, the court’s use of an alternative standard to Rule 702’s rigorous gatekeeping requirements for proffered opinion testimony allowed the inclusion of disputed “evidence.” The 9th Circuit decision, along with the patchwork of varied approaches that often overlook Rule 702’s role in expert evidence admissibility, has catalyzed the immediate need for a preponderance of the evidence standard to be codified within the text of the rule.
Read the entire brief here.
Thomas Krakauer V. Dish network, LLC
Lawyers for Civil Justice is asking the Fourth Circuit to reverse a decision awarding over $10 million in undistributed judgment funds to a dozen non-party organizations under the “cy pres” doctrine. LCJ’s amicus brief argues that neither Article III nor Rule 23 gives federal courts the power to order relief to any uninjured plaintiff or non-party, class action or not, over the objection of the party owing the judgment. The judiciary’s role in civil litigation is limited to adjudicating liability and providing relief to claimants who have suffered damages, so the doctrine of cy pres is inapt to class actions.
Here, the district court appointed a special master to help it evaluate potential cy pres recipients by employing “principles of sound grantmaking.” As one court recognized, “[w]hile courts and the parties may act with the best intentions, the specter of judges and outside entities dealing in the distribution and solicitation of large sums of money creates an appearance of impropriety.” Moreover, because an award of unclaimed class action judgment funds is an award of “damages” to an uninjured non party, it is purely punitive and flouts Article III’s case or controversy requirement.
Mary Massaron of Plunkett Cooney wrote LCJ’s brief. The case is Thomas Krakauer v. Dish Network, LLC, pending in the U.S. Court of Appeals for the Fourth Circuit.
RONNIE FISCHER V. BMW OF NORTH AMERICA, LLC
LCJ has taken its message that courts’ expert witness gatekeeping mission needs clarification to the courts. On May 4, LCJ filed an amicus brief with the Tenth Circuit in Fischer v. BMW, a case that involves the exclusion of the plaintiff’s mechanical engineering expert. The district court held the plaintiff to his burden of production under Rule 702 and ruled that, because the expert’s factual basis and methodology were inadequate, the opinions were inadmissible. On appeal, Plaintiff argued that the expert’s factual basis constitutes a matter of weight for the jury to decide, and not an admissibility consideration for the court to determine. Further, Plaintiff contended that the district court applied a burden of production that set too high a hurdle, because the opportunity for “vigorous cross-examination” will provide sufficient protection against any dubious opinions.
LCJ’s amicus brief urges the Tenth Circuit not just to affirm the expert’s exclusion, but also the seize the opportunity to instruct district courts about Rule 702 misunderstandings that have arisen in recent cases. LCJ’s brief highlighted numerous Rule 702 decisions that, like the plaintiff, improperly identified Rule 702(b) issues as credibility and not admissibility concerns. It also pointed out widespread misapplications of the burden of production by district courts within the Tenth Circuit. Drawing on Advisory Committee agenda books materials and the recent action to recommend amendments to Rule 702, LCJ’s brief shows that these practices misapply Rule 702 and represent the very problem that the proposed amendment is intended to correct.
The Fischer amicus brief is envisioned as a model for similar efforts in other federal circuits. Because the “weight v. admissibility” and “presumption of admissibility” problems have appeared in rulings from every circuit, there is an opportunity to use LCJ’s core arguments and materials to shine a light on these confused approaches and encourage clarification of the admissibility standard nationwide.
LCJ has taken its message that courts’ expert witness gatekeeping mission needs clarification to the courts. On May 4, LCJ filed an amicus brief with the Tenth Circuit in Fischer v. BMW, a case that involves the exclusion of the plaintiff’s mechanical engineering expert. The district court held the plaintiff to his burden of production under Rule 702 and ruled that, because the expert’s factual basis and methodology were inadequate, the opinions were inadmissible. On appeal, Plaintiff argued that the expert’s factual basis constitutes a matter of weight for the jury to decide, and not an admissibility consideration for the court to determine. Further, Plaintiff contended that the district court applied a burden of production that set too high a hurdle, because the opportunity for “vigorous cross-examination” will provide sufficient protection against any dubious opinions.
LCJ’s amicus brief urges the Tenth Circuit not just to affirm the expert’s exclusion, but also the seize the opportunity to instruct district courts about Rule 702 misunderstandings that have arisen in recent cases. LCJ’s brief highlighted numerous Rule 702 decisions that, like the plaintiff, improperly identified Rule 702(b) issues as credibility and not admissibility concerns. It also pointed out widespread misapplications of the burden of production by district courts within the Tenth Circuit. Drawing on Advisory Committee agenda books materials and the recent action to recommend amendments to Rule 702, LCJ’s brief shows that these practices misapply Rule 702 and represent the very problem that the proposed amendment is intended to correct.
The Fischer amicus brief is envisioned as a model for similar efforts in other federal circuits. Because the “weight v. admissibility” and “presumption of admissibility” problems have appeared in rulings from every circuit, there is an opportunity to use LCJ’s core arguments and materials to shine a light on these confused approaches and encourage clarification of the admissibility standard nationwide.
ATTORNEY GENERAL MAURA HEALEY V. FACEBOOK, INC.
Lawyers for Civil Justice has submitted a brief as amicus curiae in the case of Attorney General Maura Healey v. Facebook, Inc., currently pending on Direct Appellate Review in the Supreme Judicial Court of Massachusetts. Facebook’s appeal raises the proper scope and application of the Massachusetts attorney-client and attorney work product privileges, when invoked in response to the state Attorney General’s Civil Investigative Demand. The Suffolk County Superior Court denied Facebook’s claims of privilege, ordering Facebook to produce materials created as part of its internal, attorney-led App Developer Investigation initiated in response to the highly public news of Facebook user data misappropriation by Cambridge Analytica.
On behalf of LCJ, Campbell Conroy & O’Neil argued that information and material resulting from Facebook’s full-scale, attorney-driven, retrospective investigation fall squarely within the scope of the work product doctrine. That protection is lessened neither by Facebook’s separate ongoing commitment to conduct routine monitoring and enforcement over the Facebook Platform, nor by the investigation’s dual purpose in benefitting Facebook’s business interests. As argued by LCJ, a contrary holding would erode the attorney-client relationship and work to the detriment of sound business practices that should encourage internal investigations.
In late March, the Supreme Judicial Court (SJC) noted LCJ's amicus brief in its opinion holding that an internal investigation was conducted "in anticipation of litigation" and therefore constitutes work-product. LCJ's amicus brief argued that companies' internal investigations - and specifically the one at issue - are performed "in anticipation of litigation" regardless of routine reporting or enforcement procedures, even if the investigation also may serve a business-related purpose. The Court disagreed with the trial judge's ruling that the large-scale, counsel-led investigation into Facebook conducted was not done "in anticipation of litigation" for purposes of the work product doctrine. The Court, however, also concluded that the Attorney General demonstrated substantial need for production of documents that constitute "fact work product." You can read the decision, here.
Other LCJ amicus briefs:
In re Albany County v McKesson
Court: Sixth Circuit
Issue: In opposition to the federal district court’s order that would result in the certification of a “negotiating class.”
Outcome: The court held: “we do not see how the negotiation class can be squared with Rule 23,” and courts “are not free to amend a rule outside the process Congress ordered.” Read the full decision from the Sixth Circuit, here.
Court: Sixth Circuit
Issue: In opposition to the federal district court’s order that would result in the certification of a “negotiating class.”
Outcome: The court held: “we do not see how the negotiation class can be squared with Rule 23,” and courts “are not free to amend a rule outside the process Congress ordered.” Read the full decision from the Sixth Circuit, here.
In re Suzuki Motor Corporation
Court: Florida Supreme Court
Issue: Whether high-level officials should be deposed where: (1) they have no personal or unique knowledge about the relevant facts, or (2) there is an adequate, less intrusive discovery option—such as deposing lower-level personnel with more direct knowledge about relevant facts.
Outcome: The Florida Supreme Court adopted a new rule of procedure formally codifying the apex doctrine.
In re Toyota Motor Sales, U.S.A., Inc. and Toyota Motor Corporation
Court: Texas Supreme Court
Issue: Whether the trial court’s refusal to treat information about the security of a company’s information-technology systems as confidential under the court’s protective order, information that could subject parties to cybersecurity intrusions, establishes a dangerous precedent
Outcome: Protective order honored by Plaintiff's counsel within two weeks of amicus filing
Frank v. Gaos
Court: U.S. Supreme Court
Issue: Whether Rule 23’s requirement that a settlement binding on class members be “fair, reasonable, and adequate,” cannot be satisfied by a cy pres award, especially when there is no direct relief to class members
Outcome: Remanded for the courts below to address the plaintiffs’ standing
In re Qualcomm Antitrust Litigation
Court: Northern District of California
Issue: Whether capricious discovery sanctions order issued to a non-party litigant (Apple) were narrowly tailored to remedy the prejudice
Outcome: Discovery sanctions lifted by Judge Koh, who referred to the LCJ brief in her ruling. Read the order here and a Corporate Counsel article about the case here.
In re State Farm Lloyds, Inc.
Court: Texas Supreme Court
Issue: Whether costly and unnecessary requirement to produce ESI in particular format was unnecessary
Outcome: The Texas Supreme Court held that "Under our discovery rules, neither party may dictate the form of electronic discovery. The requesting party must specify the desired form of production, but all discovery is subject to the proportionality overlay embedded in our discovery rules . . ." Unless ordered otherwise, however, “the responding party need only produce the data reasonably available in the ordinary course of business in reasonably usable form.” You may read the entire opinion here.
In re State Farm Fire and Casualty Company
LaBrier v. State Farm Fire and Casualty Company
Court: 8th Circuit
Issue: Whether the district court’s discovery order failed to incorporate proportionality as a core, guiding principle in a class action post-2015 amendments
Outcome: The appellate court reversed the trial court's certification of the class and vacated the order upholding premature class wide discovery. You may read the entire opinion here.
Campbell-Ewald Company v. Jose Gomez
Court: U. S. Supreme Court
Issue: Whether the question of allowing an offer of relief to the named plaintiff to moot a class action complaint is more appropriately addressed by the Court or by the rule making process.
Outcome: An unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the district court retains jurisdiction to adjudicate the plaintiff’s complaint.
Court: Florida Supreme Court
Issue: Whether high-level officials should be deposed where: (1) they have no personal or unique knowledge about the relevant facts, or (2) there is an adequate, less intrusive discovery option—such as deposing lower-level personnel with more direct knowledge about relevant facts.
Outcome: The Florida Supreme Court adopted a new rule of procedure formally codifying the apex doctrine.
In re Toyota Motor Sales, U.S.A., Inc. and Toyota Motor Corporation
Court: Texas Supreme Court
Issue: Whether the trial court’s refusal to treat information about the security of a company’s information-technology systems as confidential under the court’s protective order, information that could subject parties to cybersecurity intrusions, establishes a dangerous precedent
Outcome: Protective order honored by Plaintiff's counsel within two weeks of amicus filing
Frank v. Gaos
Court: U.S. Supreme Court
Issue: Whether Rule 23’s requirement that a settlement binding on class members be “fair, reasonable, and adequate,” cannot be satisfied by a cy pres award, especially when there is no direct relief to class members
Outcome: Remanded for the courts below to address the plaintiffs’ standing
In re Qualcomm Antitrust Litigation
Court: Northern District of California
Issue: Whether capricious discovery sanctions order issued to a non-party litigant (Apple) were narrowly tailored to remedy the prejudice
Outcome: Discovery sanctions lifted by Judge Koh, who referred to the LCJ brief in her ruling. Read the order here and a Corporate Counsel article about the case here.
In re State Farm Lloyds, Inc.
Court: Texas Supreme Court
Issue: Whether costly and unnecessary requirement to produce ESI in particular format was unnecessary
Outcome: The Texas Supreme Court held that "Under our discovery rules, neither party may dictate the form of electronic discovery. The requesting party must specify the desired form of production, but all discovery is subject to the proportionality overlay embedded in our discovery rules . . ." Unless ordered otherwise, however, “the responding party need only produce the data reasonably available in the ordinary course of business in reasonably usable form.” You may read the entire opinion here.
In re State Farm Fire and Casualty Company
LaBrier v. State Farm Fire and Casualty Company
Court: 8th Circuit
Issue: Whether the district court’s discovery order failed to incorporate proportionality as a core, guiding principle in a class action post-2015 amendments
Outcome: The appellate court reversed the trial court's certification of the class and vacated the order upholding premature class wide discovery. You may read the entire opinion here.
Campbell-Ewald Company v. Jose Gomez
Court: U. S. Supreme Court
Issue: Whether the question of allowing an offer of relief to the named plaintiff to moot a class action complaint is more appropriately addressed by the Court or by the rule making process.
Outcome: An unaccepted settlement offer or offer of judgment does not moot a plaintiff's case, so the district court retains jurisdiction to adjudicate the plaintiff’s complaint.
