Defense Counsel Journal

IADC Amicus Briefs - Volume 89, Number 4

Volume 89, No. 4

March 15, 2023

Amicus Curiae

0244f9fe24eb4afe8af85ea6252be9301 IADC


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: 

Third Circuit Agrees with IADC Amicus Brief in Requiring Personal Jurisdiction in FLSA Cases (7/26/2022)

The IADC filed an amicus brief in the Third Circuit in Fischer v. Federal Express Corp., a Federal Labor Standards Act case dealing with the issue of personal jurisdiction. A Pennsylvania resident had filed the FLSA action in the Eastern District of Pennsylvania and individuals in New York and Maryland sought to join the case. The District Court did not allow the two opt-in plaintiffs to join, reasoning that under the U.S. Supreme Court ruling in Bristol-Myers Squibb Co. v. Sup. Ct., the district court lacked personal jurisdiction over FedEx with respect to the out-of-state claims. The opt-in plaintiffs appealed, arguing that the Bristol-Myers Squibb ruling applies only to state claims, not the FLSA.

The IADC’s amicus brief explained that the Supreme Court’s decision in Bristol-Myers Squibb applies to mass actions, regardless of whether filed in state or federal court. Bristol-Myers Squibb was a mass tort action filed in California state court. Some of the plaintiffs were California residents; most were from elsewhere. The Court concluded that because BMS was not subject to general jurisdiction in California, and the non-resident plaintiffs’ claims had no tie to California, BMS could not be subjected to specific jurisdiction in California for those claims.

The brief continued that there is no meaningful difference between a mass tort action and a collective action for purposes of this analysis. Like a mass tort action, the plaintiffs in a collective action are parties as soon as they file their written consent to become a party with the court. To this end, if plaintiffs-appellants and their counsel wish to have a nationwide collective action against FedEx, they can do so, either in Delaware (FedEx’s state of incorporation) or Tennessee (FedEx’s principal place of business). They have no right to bring such an action in Pennsylvania, where the courts do not have general jurisdiction over FedEx or specific jurisdiction over FedEx with respect to these claims.

The Third Circuit agreed with this reasoning, concluding that “the specific jurisdiction analysis for an FLSA collection action in federal court operates the same as it would for an FLSA collection action, or any other traditional in personam suit, in state court.” It then affirmed the district court ruling “because out-of-state opt-in plaintiffs here cannot demonstrate their claims arise out of or relate to FedEx’s contacts with Pennsylvania.” This holding is in concert with similar holdings in the Sixth and Eighth Circuits, but splits with the First Circuit. 

We thank Trea Southerland and his colleague Terrence Reed for bringing the case to our attention, Kendall Harrison of Godfrey & Kahn in Madison, Wisconsin for drafting an excellent brief, and Phil Goldberg of Shook Hardy & Bacon in Washington, D.C. for filing the brief.

Click here to read the FLSA ruling.

IADC Files Amicus Brief in Consequential Pennsylvania Supreme Court Product Liability Case (7/18/2022)

IADC filed an amicus brief in the Pennsylvania Supreme Court on a recurrent products-liability issue: when can the defendant introduce evidence that the challenged design is widely used or complies with government safety standards. The state Supreme Court agreed to hear this issue because a 35-year-old case says such evidence is categorically inadmissible. However, about a decade ago the state Supreme Court changed the law of design defect and included factors for juries to consider where industry custom and government safety standards will often be relevant and probative. The IADC’s brief points out the value that such evidence would have to the administration of justice in the state and that juries can be trusted to weigh this information in deciding whether a product is defective. The brief explains that such evidence is normally admissible under the rules of evidence, and that arguments against admissibility are matters for individual cases rather than an across-the-board rule. 

This is a high-visibility case in Pennsylvania and many leading defense organizations filed amici briefs. We thank Amicus Committee member Robert Brundage of Bowman and Brooke, who also has served as Chair of IADC’s Appellate Practice Committee, for an excellent brief. Outgoing Amicus Committee Chair Phil Goldberg of Shook, Hardy & Bacon and his colleague Joe Blum in Shook’s Philadelphia office filed the brief for the IADC.

Click here to read the amicus brief.

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