Defense Counsel Journal

IADC Amicus Briefs - Volume 88, Number 2

Volume 88, No. 2

July 23, 2021

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The IADC amicus curiae program has been active in recent months. The following brief was filed by the IADC since the last Defense Counsel Journal issue: 

IADC US Supreme Court Amicus Brief -- Johnson & Johnson v. Gail L. Ingham (4/1/2021)

IADC member Eric Lasker and his team at Hollingsworth filed an amicus on behalf of IADC in the U.S. Supreme Court. The amicus brief supported the petition for certiorari in J&J v. Ingham, making the argument that a state should not be able to assert specific personal jurisdiction over an out of state claim merely because an in-state company was used at some point in the chain of commerce (designing, assembling, and/or manufacturing the product in question). Here, Missouri asserted jurisdiction over an out of state company in J&J for plaintiffs who did not reside in Missouri and alleged harm from a J&J product they did not buy in Missouri. 

To read the amicus brief, click here.

IADC US Supreme Court Amicus Brief -- TransUnion LLC v Ramirez (2/8/2021)

The IADC filed an amicus brief, joined by the National Association of Manufacturers, Auto Innovators, and American Tort Reform Association. A Shook Hardy team led by Amicus Chair Phil Goldberg and his colleague Andy Trask worked on the brief. Tim Fielden, who brought the case to the IADC Amicus Committee, provided important guidance.

The plaintiff here was atypical of the class, which was largely uninjured. Ramirez alleged actual harm as he claimed to have been denied credit at a car dealership when the credit report from TransUnion said he matched a name on the Office of Foreign Assets Control (OFAC) list of Specially Designated Nationals (SDNs) with whom business in the United States is prohibited. Ramirez’s lawyers pursued the matter as a class action, seeking to represent all 8,185 people to whom TransUnion sent a letter between January and July of 2011 informing them that their name was a “potential match” to the name of an SDN. More than 75 percent of the class had no third-party inquiries that could have resulted in anyone beside the class members themselves seeing the potential match alert. Ramirez also offered no evidence that any of these absent class members suffered any injury at all, let alone one like his. Yet, the trial focused entirely on Ramirez’s idiosyncratic injury, and the jury awarded significant damages to the entire class.

The IADC amicus brief focused on the Rule 23(a)(3) requirement that the plaintiff must be “typical” of the absent class members, including with respect to the injury alleged. Had the lower courts properly examined typicality at the certification stage, it would have been obvious that Ramirez’s experience was atypical.

The brief points out that the lack of any rigorous or evidence-based analysis of typicality has become a problem in class litigation, particularly as creative plaintiffs’ counsel seek to turn product defects and other statutory claims into class actions based on a single or even handful of named plaintiffs who were injured by the alleged defect or violation. Class actions should not be so divorced from real world impacts or actual injuries.

To read the amicus brief, click here.

For information on the IADC's amicus brief program and to view past briefs, please visit the Amicus Briefs page on the IADC website.