Defense Counsel Journal

IADC Amicus Briefs - Volume 91, Number 1

Volume 91, No. 1

March 05, 2024

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The IADC amicus curiae program has been active. The following briefs were filed by the IADC and updates have been made since the last Defense Counsel Journal issue: 

Motion and Brief Filed in Diane Owens v. Firstenergy Corporation (2/16/2024)

The IADC filed an amicus brief in the Sixth Circuit in Diane Owens v. FirstEnergy Corporation in an appeal of class certification granted under FRCP 23(b)(3) for defendants’ alleged violations of the Securities Act of 1933 and the Securities Exchange Act of 1934. The IADC’s brief argues that in granting plaintiffs’ Rule 23(b)(3) motion for class certification, the district court fundamentally erred in applying the law and failed to apply properly two significant protections from liability provided to defendants.

First, in certifying a class on plaintiffs’ claims brought under the Securities Exchange Act, the district court failed to undertake the required rigorous analysis, which serves as a protection for defendants under Rule 23(b)(3)’s predominance requirement. The lack of the required rigorous analysis led the district court to the wrong result, when it held in a conclusory fashion that plaintiffs had satisfied the predominance requirement on their claims brought under the Securities Exchange Act for the same reasons they had met the predominance requirement on their claims under the Securities Act—despite the fact that the latter contains a damages formula while the former does not, rendering the analogy inapt. 

Second, the district court improperly applied the Affiliated Ute presumption of reliance, which was created for cases that primarily dealt with a failure to disclose. IADC’s brief argues its application in this case was improper as plaintiffs’ claims were based on affirmative alleged misrepresentations, not omissions.  Plaintiffs attempted expansion of Affiliated Ute represents a dangerous precedent in the erosion of the protections associated with securities fraud claims as it allows a plaintiff to skirt having to prove actual reliance, an essential element of a fraud claim, and potentially allows for class treatment of fraud claims. IADC’s brief urges the Sixth Circuit to recognize that expanding Affiliated Ute to cases involving affirmative alleged misrepresentations will render the reliance requirement meaningless in securities fraud cases.  The U.S. Chamber of Commerce and former U.S. Securities and Exchange Commission officials also filed amicus briefs urging the Sixth Circuit to reverse class certification in this case. 

Mike Risley, Marjorie Farris, Chad McTighe, and Beth Breetz of Stites & Harbison in Louisville, Kentucky prepared and filed the IADC’s brief.

Read the amicus motion.

Read the amicus brief.

IADC Files Brief in United States Court of Appeals for the Fifth Circuit in Jennifer Harris v. FedEx Corporate Services, Inc. (02/01/2024; 5/3/2023)

The IADC filed a motion in support of FedEx in Jennifer Harris v. FedEx Corporate Services, Inc. on May 3, 2023. 

The Court issued a ruling on February 1, 2024.

Read the ruling

Read the amicus brief.

Update on Amicus Brief Filed in Sullivan v. Werner Company and Lowe's Companies, Inc. (1/9/2024)

This update refers to the amicus brief the IADC filed in "Michael and Melissa Sullivan v. Werner Company and Lowe's Companies, Inc." For details on the brief and the original filing, please view the 7/18/2022 update below, which includes a copy of the original brief.

The Pennsylvania Supreme Court’s decision is a loss, but with room for hope in future cases. The question before the court was whether evidence that the product complied with industry or government standards is admissible in a strict product liability lawsuit. Six justices participated in the decision, and the court split 3-1-2. An opinion for three justices, announcing the court’s judgment, concluded that such evidence is never admissible in Pennsylvania. A fourth justice (Donohue) agreed that on the facts of this particular case the trial court had properly excluded the evidence. But her opinion left open the possibility that such evidence might be admissible in a future case. Her opinion would require, at a minimum, that the defendant present evidence of what the standard says and its development, and the defendant would also have to explain how the evidence was relevant to at least one of the factors that that the jury must use in deciding whether the product is unreasonably dangerous. An opinion for two other justices, dissenting, concluded that such evidence is normally admissible (as long as normal rules of evidence are met). 

Importantly, no opinion got a majority. It normally takes a majority of justices to create a holding that binds lower courts. In some future case, the manufacturer would want to offer the evidence and explanation required by Justice Donohue’s opinion. If that evidence were offered in a future case, the lineup is that it would be inadmissible under opinions representing three justices, and might be admissible under opinions representing three other justices. Since neither position commanded a majority, Sullivan does not require the trial court to exclude such evidence. The trial court has to decide whether to follow the three justices in the plurality or the three justices in the concurrence plus dissent.

The Pennsylvania Supreme Court has a seventh justice who was not on the court in time to participate in the Sullivan decision. The defendant’s counsel has offered reargument so that the seventh justice can participate. If there is a reargument, the resulting opinion would presumably have seven justices and one side might command a majority. We must wait and see what happens.

Read the justice opinion here.

Read the concurring opinion here.

Read the dissenting opinion here.

IADC Files Amicus Brief in the Supreme Court of Louisiana on the Issue of Negligent Infliction of Emotional Distress Claims in Louisiana - Brittany Lynn Spencer v. Valero Refining Meraux, LLC (3/13/2023)

The Louisiana Supreme Court is hearing the appeal of a decision from the Fourth Circuit Court of Appeals which greatly expands the scope of who may be awarded emotional distress damages in the absence of any physical injury, illness, or other physical consequences. In Spencer, the Fourth Circuit Court of Appeals allowed a plaintiff to recover for pure emotional distress when she had only heard an explosion and observed emergency vehicles traveling to the facility where the fire occurred. In doing so, the Fourth Circuit Court of Appeals opened the door to exposing defendants to infinite and unpredictable liability claims for negligent infliction of emotional distress.

The IADC filed an amicus brief urging the Court that the limited approach to recovery for negligent infliction of emotional distress advocated by industry amici, which is consistent with the Louisiana Supreme Court’s historical practice of placing stringent criteria on the recovery of emotional distress damages. In its brief, the IADC asserted that this limited approach would further provide the Louisiana courts with the clear framework for determining as a matter of law, for instance on summary judgment, whether a defendant owes the plaintiff an independent duty sufficient to support a negligent infliction of emotional distress claim. The IADC further asserted in its amicus brief that allowing the Fourth Circuit Court of Appeals’ decision to stand leaves industries with little to no predictability regarding the scope of the duty to protect against emotional distress. The IADC further argued that the Louisiana Supreme Court’s guidance is needed, and that negligent infliction of emotional distress claims should be limited to those situations where defendant undertakes a special duty implicating the plaintiff’s emotional wellbeing.

We thank Kelly Becker at Liskow & Lewis for writing the 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.