Amicus Curiae Briefs

Amicus Curiae

Guidelines for IADC Amicus Curiae Briefs

Requesting an IADC Amicus Curiae Brief

The Amicus Curiae Committee

Recent IADC Amicus Briefs

Amicus Curiae

The IADC Amicus Curiae program has been developed in an attempt to further improve the civil justice system. The IADC regularly files briefs in pending cases throughout the United States to support a wide variety of defense issues of broad application. The IADC supports a justice system in which plaintiffs are fairly compensated for genuine injuries, responsible defendants are held liable only for appropriate damages, and non-responsible defendants are exonerated without unreasonable cost.

The Amicus Curiae program is a valuable benefit to IADC members, as only IADC members can request amicus support from the organization. The Amicus Curiae Committee receives an annual budget for preparing briefs, and brief writers receive an honorarium for their work. Cases presented to the Amicus Curiae Committee are carefully screened and selected to reach a wide variety of jurisdictions, as well as a broad range of legal issues. Briefs are carefully prepared and reviewed before filing.

Although the IADC is an international organization, the Amicus Curiae program is presently limited to the United States. Most countries do not permit non-parties to file briefs in pending cases.

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Guidelines for IADC Amicus Curiae Briefs

The IADC adheres to certain guidelines in evaluating cases to determine whether IADC participation is appropriate. IADC members requesting IADC amicus curiae support are advised to review these guidelines before making a request.

IADC Member Request: An IADC member must make a request for amicus curiae support to warrant the IADC’s participation in the case. If an IADC member represents an adverse party in the case, the IADC will consider this in deciding whether to provide amicus curiae support.

As a general rule, the IADC will consider providing amicus curiae support in cases pending only in a state supreme court or the United States Supreme Court. In cases where the appellate court has discretionary jurisdiction, the Amicus Curiae Committee will recommend whether to participate at the initial stage of the appeal or only after review is granted. The IADC will consider providing amicus curiae support in the federal circuit courts of appeals and state intermediate appellate courts only in exceptional cases.

Issues Presented: The IADC will consider whether there is a clear and obvious defense position presented in the case under consideration. The issue(s) to be decided should also be of broad application. The Committee will also consider the facts of the case in making its recommendation to the Board of Directors. *Guidelines approved by the IADC Board of Directors April 2006

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Requesting an IADC Amicus Curiae Brief

The IADC Amicus Curiae Committee regularly reviews requests for amicus participation, making recommendations to the Board of Directors. If you have a case that you believe merits IADC participation, the form to request review and PDF is available on this Web site along with the requisite guidelines.

After completing the form, please send it to the IADC office, or e-mail it to aomaley@iadclaw.org. You may also contact IADC Amicus Curiae Committee chair Mary Christine Sungaila at mcsungaila@swlaw.com for further information. A member of the amicus curiae committee may contact you to obtain additional information about the case.

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The Amicus Curiae Committee

The Amicus Curiae Committee is one of the only few IADC Committees where members are appointed by the President of the organization. The Committee is comprised primarily of appellate practitioners and appellate specialists who regularly practice before state and federal appellate courts. Members of the Committee must agree to write one brief per year if requested to do so while serving on the Committee. If you are interested in being considered for appointment to the Committee, please contact the IADC office, or send an e-mail to aomaley@iadclaw.org.

Case Review Procedures: The Amicus Curiae Committee conducts the initial review of the case to determine whether IADC participation would be appropriate. If a majority of the Committee decides that the IADC should file an amicus brief in the case, the Committee will then present that recommendation to the Board of Directors. The Board of Directors will make the final determination as to whether an IADC amicus curiae brief is appropriate in the case.

Preparation of the Brief: If the IADC decides to participate as an amicus, the Committee chair will appoint counsel to draft the brief. As a general rule, members of the Committee prepare the amicus briefs on behalf of the IADC. However, lawyers who are not committee members may also be retained to prepare the IADC brief in an appropriate case, or to serve as local counsel. If you are interested in writing a brief in your jurisdiction, or serving as local counsel, please contact the Amicus Committee Chair, Mary Christine Sungaila at mcsungaila@swlaw.com.

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Recent IADC Amicus Briefs

United States Supreme Court - Hoosier Racing Tire v. Race Tires America

The International Association of Defense Counsel (IADC) recently filed a brief amicus curiae in the United States Supreme Court in the Hoosier Racing case (No. 11-1520). The Court was asked to resolve an emerging split among the circuits on the scope of recovery of e-discovery costs.

United States Supreme Court - Hoosier Racing Tire v. Race Tires America

United States Supreme Court - Comcast Corporation, Et Al., v. Caroline Behrend, Et Al.,

The International Association of Defense Counsel (IADC) recently filed a brief amicus curiae in the United States Supreme Court in the Comcast Corporation, Et. Al., case (No. 11-864). The Court will decide the amount of scrutiny that must be given to expert testimony at the class certification. This is a follow-on case to last Term's decision in Wal-Mart v. Dukes, in which the Court noted in dicta that a full Daubert analysis of expert testimony may be appropriate at the time of class certification.

United States Supreme Court - Comcast Corporation, Et Al., v. Caroline Behrend, Et Al.,

United States Supreme Court - Standard Fire Insurance v. Knowles

The International Association of Defense Counsel (IADC) recently filed a brief amicus curiae in the United States Supreme Court in The Standard Fire Insurance Company case (No. 11-1450). The Court will decide whether purported class representatives can "stipulate" that they will not seek more than $5 million on behalf of the class (event if class members may otherwise be entitled to recover more money) in order to avoid the "amount in controversy" requirement under the Class Action Fairness Act and thereby avoid removal to federal court.

United States Supreme Court - Standard Fire Insurance v. Knowles

United States of Appeals for the Ninth Circurt -
Toyota Motor Corporation and Toyota Motor Sales USA, INC. v. Certain Economic Loss Plaintiffs

The International Association of Defense Counsel (IADC) recently filed a brief amicus curiae in the United States Court of Appeals for the Ninth Circuit in the Toyota Motor Corporation Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation (No. 11-57006), asking the Court in an interlocutory appeal to reverse the district court's order that granted Plaintiffs both Article III and statutory standing to assert various "unfair competition" claims under California law.

United States of Appeals for the Ninth Circurt -  Toyota Motor Corporation and Toyota Motor Sales USA, INC. v. Certain Economic Loss Plaintiffs


Supreme Court of Illinois - Center Partners, Ltd. v. Growth Head GP, LLC

The International Association of Defense Counsel (IADC) and Illinois Association of Defense Trial Counsel (IDC) filed a brief amici curiae in the Illinois Supreme Court in Center Partners, Ltd. v. Growth Head GP, LLC (Nos. 113107 and 113128), asking the Court to reject extension of the subject-matter waiver doctrine of the attorney-client privilege to the context of extrajudicial disclosures, and reverse the ruling by the Illinois Appellate Court, First District (No. 1-11-0381).

Supreme Court of Illinois - Center Partners, Ltd. v. Growth Head GP, LLC


Supreme Court of Texas - Centocor, Inc. v. Hamilton

The International Association of Defense Counsel (IADC) filed an amicus brief in the Supreme Court of Texas in Centocor, Inc. v. Patricia Hamilton, Thomas Hamilton and Michael G. Bullen, M.D. (No. 10-0223), requesting that the Court reject any direct-to-consumer advertising exception to the learned intermediary doctrine in Texas and reverse the ruling by the Thirteenth Court of Appeals, Corpus Christi, Texas (No. 13-07-00301-CV).

Supreme Court of Texas - Centocor, Inc. v. Hamilton


U.S. Supreme Court - First American v. Edwards

IADC submitted a U.S. Supreme Court amicus brief on the merits in support of petitioner First American Financial in a case that raises fundamental questions about Article III constitutional standing and the limits of Congressional power. The amicus brief, prepared by Amicus Curiae Committee Chair M.C. Sungaila and Amicus Curiae Committee Member Mitch Smith.

U.S. Supreme Court - First America v. Edwards

California Supreme Court- Bullock v. Philip Morris

The IADC and the American Chemistry Council submitted a letter brief in support of a petition for review filed by Philip Morris in a punitive damages case, in which the California Court of Appeal for the first time justified a substantial punitive damages award based on the wealth of the defendant. Click here to read the amicus letter brief prepared by Amicus Curiae Committee Chair M.C. Sungaila.

California Supreme Court - Bullock v. Phillip Morris

Southern District of New York - Pippins v. KPMG

The IADC joined an amicus brief prepared by the Washington Legal Foundation in a Southern District of New York case, in which KPMG is challenging a broad electronic record preservation order in a purported class action. Click here to read the amicus brief prepared by the Washington Legal Foundation

United States District Court Southern District of New York: Kyle Pippins vs. KPMG LLP


California IADC Amicus Update: Toyota Motor Corporation, et al., v. Superior Court of the State of California, County of Los Angeles

In a case where the IADC filed an amicus brief on behalf of Toyota, the California Court of Appeal published an opinion on July 27 confirming that California statutes do not currently allow for a California court to compel a foreign witness -- whether from out of state or out of the country -- to come to California for a deposition. Plaintiffs filed in California a product liability action arising from an accident that took place in Idaho, and sought to depose in California five employees of Toyota who were Japanese residents. Toyota responded that the depositions could take place in Japan, but not California, citing a California statute that limits the power of California trial courts to compel the attendance of only California residents at deposition and trial. The trial court granted the motion to compel, but the Court of Appeal granted Toyota's writ petition. The appellate court unanimously concluded that "[t]he plain language of the statutory scheme and the legislative history of that language fully support the conclusion that a trial court cannot order a non-resident to appear at a California deposition. This conclusion is not limited to individual witnesses, but also applies to a court order directing that a party produce for deposition a non-resident witness (e.g., a employee, office, or director of a corporation)." The concurring justice noted, however, that it may be time for the Legislature to revisit the statutory scheme.

The IADC answered the Court of Appeal's invitation for amicus briefing, and filed an amicus brief in support of Toyota, together with the National Association of Manufacturers. The brief, prepared by Amicus Curiae Chair M.C. Sungaila, argued that (1) in the absence of a statutory scheme, the California courts had no inherent equitable authority to compel attendance here and (2) international comity concerns should play a role in the statutory analysis.

Case Opinion


IADC Files Amicus Brief in Important Discovery Case, in response to Invitation by California Court of Appeal

Individuals injured in a car accident in Idaho sued Toyota Motor Corporation, Toyota Motor North America, and Toyota Motor Sales in California state court. The plaintiffs sought to compel Toyota Motor Corporation, the Japanese parent, to produce individual employees (and Japanese residents) for deposition in California. The trial court granted plaintiffs' request. Toyota filed a writ petition with the California Court of Appeal challenging the ruling. Toyota argued that California Code of Civil Procedure section 1989 barred the order; instead, a party who wants to depose non-resident witnesses must take their depositions in their state or nation of residence. The appellate court decided to hear the writ petition on the merits.

The main issue – whether the court can order a corporation to bring out-of-state employees to California for deposition –could impact any litigation in California state court involving an out-of-state or foreign corporation. At oral argument on the writ, the appellate court seemed to recognize that the court's opinion could impact numerous other cases, and that this matter could proceed to the California Supreme Court. After oral argument, the appellate court invited amicus participation. The Court of Appeal extended an invitation directly to a number of potentially interested organizations, including the IADC.

On April 1, 2011, IADC and the National Association of Manufacturers jointly filed an amicus brief in the case. Prepared by IADC Amicus Curiae Committee Chair M.C. Sungaila of Snell & Wilmer LLP, the amicus brief showed that (1) California courts lack inherent authority to compel nonresidents to attend depositions within state borders because English courts of equity, from which California courts' inherent powers are drawn, ordered depositions to be taken abroad rather than force a foreign deponent to come to England and (2) even if the trial court did have discretionary authority under Code of Civil Procedure section 2025.260 to order Toyota's individual Japanese employees to attend depositions in California, that discretion must be exercised consistent with principles of international comity as well as the factors enumerated in section 2025.260 itself.

Toyota Motor Corporation, et al., v. Superior Court of the State of California, County of Los Angeles

Case Summary


IADC files amicus brief in Wal-Mart v. Dukes

The IADC has filed a merits-stage amicus brief in the closely-watched Wal-Mart v. Dukes Title VII class action case before the U.S. Supreme Court.

A divided Ninth Circuit, sitting en banc, affirmed the district court's certification of a nationwide class of female workers at Wal-Mart who made Title VII disparate impact pay and promotion gender discrimination claims. As Judge Kozinski, dissenting from the en banc determination, pointed out, the class posed a number of concerns about class representation and commonality of issues. The class included members who "held a multitude of jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member's job, location, and period of employment."

The U.S. Supreme Court granted certiorari to determine two issues: (1) whether class certification was consistent with the requirements of Federal Rule of Civil Procedure rule 23(a) and (2) whether claims for monetary relief, as opposed to injunctive relief, can be certified at all under Federal Rule of Civil Procedure rule 23(b)(2).

The brief explains why, given the level of organizational and cultural change plaintiffs claim is needed, a class action is unlikely to provide the kind of sustained, structural change plaintiffs seek. The brief introduces organizational development theory, which teaches that organization-wide change in a company's culture is more likely to take root when the organization's members participate in the change, rather than having it imposed on them from the outside. A "one-size-fits-all" approach to change at Wal-Mart, the brief argues, is further complicated by the various regions and stores, each of which is subject to substantial individual managerial discretion and therefore may be at different stages of inclusiveness. The brief also describes a series of store-level classes which may serve as an alternative to the nationwide class that was certified.

In The Supreme Court of the United States: WAL-MART STORES, INC., v. Betty Dukes


IADC Offers Letter Brief to Supreme Court of California Seeking Clarity on the Applicability of the “Consumer Expectations” Test in Design Defect Cases

On October 27, 2010 the IADC submitted a letter brief supporting defendant’s petition for review to the Supreme Court of California of the Court of Appeals decision in Saller v. Crown Cork & Seal Co., Inc. At issue is when the “consumer expectations” test should be applied in a design defect case. Courts of appeal are split on this issue and the IADC has asked the Supreme Court for review to give the lower courts guidance in order to secure uniformity of decision. The IADC maintains that further clarification of the consumer expectations test is necessary, particularly in those cases where the “product’s failure” involves exposure to a substance that produces complex biological effects.

The IADC letter brief was authored by IADC members David M. Axelrad and Mary-Christine Sungaila, and Dean A. Bochner all of Horvitz & Levy LLP.

In the Supreme Court of California:  Sailer v. Crown Cork & Seal Co., Inc.

NAM Urges Review of Punitive Damages Case

The NAM and the International Association of Defense Counsel filed an amicus brief this week asking the Supreme Court to review an Oklahoma state court decision that imposed a $53 million punitive damage award on top of an award of $750,000 in a breach of contract dispute. The punitive damages portion is far greater than the Court has found acceptable in other rulings that compare the ratio of the punitive damages to the actual damages in the case. The NAM urged the Court to provide guidance on the definition of compensatory damages, since some states that add statutory penalties to actual damages improperly skew punitive damage awards. Shell Oil Co. v. Hebble (S. Ct.).

In the Supreme Court of the United States:  Shell Western E & P, Inc. v. Nancy Fuller Hebble

South Carolina Supreme Court Follows IADC Recommendation

In an opinion issued September 21, 2009, the South Carolina Supreme Court in Jamison v. Morris held that a franchisor-franchisee relationship alone does not create agency liability. Plaintiffs had obtained a jury verdict against Texaco on an agency theory based on the acts of an independently owned and operated Texaco franchise. The IADC urged the South Carolina Supreme Court to reverse the judgment based on the correct legal relationship of the parties rather than the branding of the store.

The South Carolina Supreme Court followed the IADC's recommendation, directing a verdict in favor of Texaco based on a lack of evidence of actual agency. The IADC brief was authored by IADC member Randy Roach of Roach & Newton, L.L.P. in Houston, Texas.

In the Supreme Court of South Carolina:  Jamison v. Morris

IADC Successfully Weighs In On Forum Non Conveniens Issue Pending In the Supreme Court of Rhode Island

 

On May 9, 2008, the Rhode Island Supreme Court issued an opinion in Kedy v. A.W. Chesterton, a case involving the application of the doctrine offorum non conveniens. Plaintiffs, thirty-nine residents of Canada, filed suit in Rhode Island based on alleged asbestos exposure. None of the plaintiffs ever worked in Rhode Island, were exposed to asbestos there, or received medical care there. None of the defendants were located in that state either. However, the defendants’ motions to dismiss were denied because Rhode Island law has never recognized the doctrine of forum non conveniens. The IADC urged the Rhode Island Supreme Court to adopt the doctrine of forum non conveniens.

The Rhode Island Supreme Court followed that recommendation, and formally recognized the doctrine of forum non conveniens and delineated its standards. Because the factors relevant to the forum non conveniens inquiry weighed so heavily in favor of dismissal, the Court also directed the Superior Court to enter an order dismissing the plaintiff’s complaint. The IADC brief was authored and filed by amicus curiae committee member Thomas Riley with Chadbourne & Parke LLP.

In the Supreme Court of Rhode Island: Kedy v. A.W.Chesterton Co.

Supreme Court of Ohio Upholds Two Tort Reform Statutes

In an opinion issued December 27, 2007, the Supreme Court of Ohio in Arbino v. Johnson & Johnson held that two recent tort reform statutes enacted by the General Assembly do not violate the constitutional rights of plaintiffs in personal injury lawsuits. The IADC had previously filed an amicus brief in the case urging the appellate court to uphold the constitutionality of these statutes. The IADC brief, available on the IADC website, was authored by IADC Board member Joseph W. Ryan, and Colleen L. Marshall of Porter, Wright, Morris & Arthur, L.L.P.

One of the challenged statutes caps the amount of noneconomic damages that may be awarded to a plaintiff in a personal injury suit to the greater of $250,000, or three times the amount of “economic damages” awarded to the same plaintiff based on the same injuries, up to a maximum of $350,000. The other provision prohibits Ohio courts from awarding a plaintiff punitive damages that exceed two times the amount of his or her compensatory damages from the same defendant. The Court in Arbino ruled that legislation capping the amount of noneconomic damages and punitive damages does not violate the constitutional rights of injured parties to trial by jury, to a remedy at law for their injuries, or to due process and equal protection of the laws. The Court also held that the challenged statutes do not violate provisions of the Ohio Constitution that guarantee open courts and the separation of powers between the legislative and judicial branches of government.

In the Supreme Court of Ohio: Arbino v. Johnson & Johnson

First Circuit Certifies Questions Relating to Post-Sale Duty to Warn to Maine Supreme Court

The IADC recently joined in a challenge to a district court’s finding that there is a post-sale duty to warn customers regarding a product that was not defective when made, and that such a duty extends to remote purchasers. The case in which this determination was made, Brown v. Crown Equip. Corp., is pending in the United States Court of Appeals for the First Circuit. The jury in that case specifically found that the product in question was not defective when made and first sold. However, the jury was instructed that it could impose a duty on a manufacturer to warn even remote purchasers about products that were not defective when first sold, and in fact, the jury imposed such a duty.

On September 4, 2007, the First Circuit certified the issue to the Maine Supreme Court. The IADC has once again joined in the effort to now persuade the Maine Supreme Court to hold that no such duty exists by filing yet a second brief in that Court. The IADC’s brief urges that any post-sale duty to warn should be limited to products that were defective when first sold, consistent with the overwhelming weight of authority throughout the nation. Additionally, the IADC argues that if the Court were to recognize such a duty, it should not extend to remote purchasers. The IADC briefs filed in the First Circuit and in the Maine Supreme Court were prepared by Amicus Curiae Committee member Jonathan Franklin and Kimberly Walker with Fulbright & Jaworski, L.L.P.

In the United States Court of Appeals for the First Circuit: Brown v. Crown Equipment Corp.

IADC Files Amicus Brief in California Supreme Court

In September 2007, the IADC filed a letter brief in a case pending in the California Supreme Court, Starrh and Starrh Cotton Growers v. Aera Energy LLC. The letter urged the Court to grant the petition for review brought by Aera Energy. Aera is a joint venture of Shell and Exxon, and operates oil and gas exploration and production activities in California. Aera owned property containing state-authorized collection ponds for disposal of water brought to the surface as part of normal field operations. This water migrated to the Starrh aquifer, which in its natural state already could not be put to agricultural use because of excessive salinity. The encroachment began in the 1980’s, and will continue regardless of abatement efforts. The appellate court held that the trespass that began fifty years ago is “continuing” in nature, rather than permanent, and thus not subject to a three year statute of limitations for trespass claims.

The IADC joined in Aera’s challenge to the court of appeals’ decision. The IADC urged the Supreme Court to clarify California law regarding whether a nuisance or trespass may be found to be continuing for the purpose of applying the statute of limitations, but permanent for purposes of calculating damages. The petition for review was denied by the California Supreme Court in October 2007. The IADC brief was authored by Frederick Baker of Sedgwick, Detert, Moran & Arnold, LLP.

In the Supreme Court of California: Starrh and Starrh Cotton Growers v. Aera Energy LLC

Big Decision in Supreme Court Case for Which IADC Offered Amicus Brief

for the case of Shell Oil Company v. United States of America. At issue was the Ninth Circuit's sanctioning what is argued as an improper expansion of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

The amicus brief offered support for granting the petition for certiorari, and we are pleased to report that the Supreme Court granted cert on both Shell and Burlington Northern's petitions in this appeal of the 9th Circuit's CERCLA decision.

The IADC brief was authored by IADC member Mary-Christine Sungaila and Jeremy B. Rosen and Bradley S. Pauley of Horvitz & Levy LLP.

In the Supreme Court of the United States: Shell Oil Company v. United States of America

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