Recent Developments in Appellate Advocacy

I. Introduction
II. Class Actions and Arbitration
III. Standing
IV. Preemption
V. Miscellaneous
VI. Amendments to Federal Rules of Appellate Procedure 28 and 28.1

I. Introduction

The U.S. Supreme Court's 2012 term was an exciting and important one, marked by eagerly awaited decisions in high-profile disputes as well as less publicized – but no less important –resolutions of crucial legal questions. A number of cases from the term have particular significance to tort and insurance law practitioners. In the area of class arbitration, for example, the Court gave and the Court took away. On the one hand, it strictly enforced a class action waiver in an arbitration agreement. On the other, it affirmed an arbitrator's construction of a contractual arbitration clause as authorizing classwide arbitration despite the contract's complete silence on the matter. Standing and preemption issues also figured prominently in several of the Court's decisions. The Court decided a number of cases that elude classification but that directly affect tort and insurance law. Finally, the Court approved amendments to the Federal Rules of Appellate Procedure that eliminate separate statements of the case and of the facts in appellate briefs and consolidate both sections into one statement of the case.

In American Express Co. v. Italian Colors Restaurant,[1] the Supreme Court enforced the arbitration clause and class action waiver in American Express's contracts with its merchants. The Court held that a class arbitration waiver is enforceable under the Federal Arbitration Act (FAA) even "when the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery."[2] Italian Colors was a putative class action brought by merchants who alleged that American Express violated the antitrust laws by using monopoly power to create an improper tying arrangement in the charge-card/credit-card industry.[3] The merchants submitted evidence that proving their claims would require expert analysis costing many times the maximum damages any individual merchant could recover.[4] The district court compelled arbitration, but the Second Circuit found that "prohibitive costs" rendered the arbitration clause unenforceable.[5] The Second Circuit relied on the judicially created principle of effective vindication,[6] which recognizes that arbitration may be used to enforce federal rights "so long as the prospective litigant effectively may vindicate its statutory cause of action" in arbitration.[7]

The Supreme Court reversed the Second Circuit and held that the FAA requires rigorous enforcement of contractual arbitration clauses, regardless of cost. In an opinion authored by Justice Scalia, the Court explained that "the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim."[8] The Court rejected the merchants' attempt to invoke the "effective vindication" rule, describing that concept as dictum from prior cases and observing that the Court has never used it to invalidate an arbitration clause.[9] The Court explained that its 2011 decision in AT&T Mobility LLC v. Concepcion[10] "all but resolve[d]" the case by establishing "that the FAA's command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims."[11] Thus, Italian Colors mandates judicial enforcement of contractual arbitration clauses in the absence of a common law ground for revoking an arbitration agreement or express statutory language prohibiting arbitration.[12]

In Oxford Health Plans v. Sutter,[13] the Court unanimously affirmed the Third Circuit's decision to uphold an arbitrator's construction of a contract as allowing for classwide arbitration.[14] Oxford Health Plans involved a putative class action filed by a physician who alleged he received untimely payments from Oxford, a health insurer. After Oxford moved to compel arbitration, the parties stipulated that the arbitrator should decide whether their contract authorized classwide arbitration.[15] The arbitrator concluded that the contractual arbitration clause, despite its complete silence with respect to class actions, expressed the parties' intent that "‘class arbitration can be maintained.' "[16] The district court denied a motion to vacate and the Third Circuit affirmed, creating a circuit split that the Supreme Court granted certiorari to resolve.[17] In affirming the Third Circuit, the Supreme Court held that an arbitrator does not exceed his or her powers under the FAA where the parties "‘bargained for the arbitrator's construction of their agreement'" and the arbitrator at least arguably construed or applied the contract's terms.[18] A contracting party who stipulates to allowing an arbitrator to decide a question of classwide arbitrability must accept the consequences of an adverse decision because the "arbitrator's construction holds, however good, bad, or ugly."[19]

The Supreme Court also decided several important class action cases in the 2012 term that did not implicate arbitration issues. In Standard Fire Insurance Co. v. Knowles,[20] the Court held that a class representative cannot avoid federal jurisdiction by stipulating, before certification, that class-wide damages will not exceed the jurisdictional amount. The plaintiff in Knowles brought a proposed class action in Arkansas state court.[21] The Class Action Fairness Act (CAFA) authorizes removal to federal court when, among other things, the aggregated amount in controversy exceeds $5 million.[22] The complaint alleged, and plaintiff stipulated, that the proposed class would not seek to recover damages exceeding $5 million in the aggregate.[23] The defendant insurer removed the action to federal court under CAFA and presented evidence that the amount in controversy exceeded $5 million, but the district court granted plaintiff's motion to remand based on the stipulation.[24] After the Eighth Circuit declined to hear a discretionary appeal, the Supreme Court granted certiorari and unanimously reversed.[25] The Court held that a class action plaintiff "cannot legally bind members of the proposed class before the class is certified," and a precertification stipulation cannot reduce "the value of the putative class members' claims."[26] Any such result would "run directly counter to CAFA's primary objective: ensuring ‘Federal court consideration of interstate cases of national importance.' "[27]

In Amgen Inc. v. Connecticut Retirement Plans & Trust Funds,[28] the Court relieved securities fraud plaintiffs of their obligation to present evidence of materiality at the class certification stage where plaintiffs plausibly allege a fraud-on-the-market theory.[29] Connecticut Retirement Plans and Trust Funds filed a securities fraud class action against biotech company Amgen, Inc., alleging a fraud on the market.[30] Amgen opposed class certification on the ground that Connecticut Retirement could not establish predominance as required by Federal Rule of Civil Procedure 23(b)(3) unless it proved that Amgen's alleged misrepresentations materially affected the price of its stock.[31] After the district court certified a class, the Ninth Circuit accepted a discretionary appeal from the certification order and affirmed.[32]

The Supreme Court granted certiorari to resolve a circuit conflict.[33] In affirming, the Court deemphasized the "rigorous analysis" standard for class certification, cautioning that "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage."[34] The Court rejected Amgen's argument that materiality, as an element of fraud on the market, must be proven at the class certification stage.[35] According to the Court, this is a merits issue that has no impact on whether common questions of law and fact will predominate over individual questions.[36] Because the Court determined that a "failure of proof on the element of materiality would end the case for one and for all," it found "no claim would remain in which individual reliance issues could potentially predominate," and Amgen's arguments about materiality would be better addressed on summary judgment or at trial.[37]

The Court rejected Amgen's death-knell argument and the similar policy-based arguments Justice Scalia advanced in his dissent, holding that the Court has "no warrant to encumber securities fraud litigation by adopting an atextual requirement of precertification proof of materiality that Congress, despite its extensive involvement in the securities field, has not sanctioned."[38] With respect to Justice Scalia's contention that a securities fraud class action cannot be certified as a matter of law unless all of the elements of fraud on the market have been proven, the majority opined that this "purported rule is Justice Scalia's invention."[39] Disposing of Amgen's argument that the district court should have considered rebuttal evidence submitted to establish a lack of materiality, the Court held that if evidence of materiality is not relevant to the predominance question, then neither is evidence of immateriality.[40] Justice Alito suggested that it may be time for the Court to revisit the fraud-on-the-market rule, since "recent evidence suggests that the presumption [of reliance] may rest on a faulty economic premise."[41] Unless and until that happens, Amgen effectively streamlines the class certification process for plaintiffs in securities fraud cases.

The Supreme Court reinforced its Rule 23 "rigorous analysis" standard, however, in Comcast Corp. v. Behrend,[42] which reversed certification of a class of cable television subscribers seeking damages for alleged violations of the antitrust laws.[43] The subscribers alleged that Comcast and its affiliates engaged in "clustering" transactions with other television providers that increased market concentration and caused supra-competitive cable television prices in violation of the Sherman Act.[44] The subscribers sought damages on behalf of a class pursuant to Federal Rule of Civil Procedure 23(b)(3). They asserted four theories of liability and presented expert testimony to establish a damage model in support of certification.[45] The district court found that only one of their four theories of antitrust impact was suitable for class treatment.[46] The district court certified a class even though the expert's damage model "did not isolate damages resulting from any one theory of antitrust liability."[47] The Third Circuit affirmed the certification, holding that, at the class certification stage, the subscribers were not required to tie each of their theories to an exact calculation of damages.[48]

The Supreme Court reversed. Justice Scalia, writing for a five-justice majority, started with the proposition that class actions are " ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.' "[49] Surveying its precedents, the Court held that "a party seeking to maintain a class action ‘must affirmatively demonstrate his compliance' with Rule 23" and provide evidentiary proof that the prerequisites for classwide treatment are met.[50] The required "‘rigorous analysis'" will often " ‘overlap with the merits of the plaintiff's underlying claim.' "[51] The Court found no class should have been certified because the subscribers' model could not "possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3)."[52] The Court criticized the Third Circuit's failure to consider deficiencies in the subscribers' damage model as "flatly contradict[ing] our cases requiring a determination that Rule 23 is satisfied, even when that requires inquiry into the merits of the claim."[53] The "rigorous analysis" standard, reinforced in Comcast, applies in all class action cases.

The Court's standing cases highlight the importance of understanding both jurisdictional (Article III) standing requirements as well as the Court's prudential standing doctrine. These cases also make clear that federal appellate courts must adhere strictly to Article III standing requirements and may deviate from prudential standing requirements only in extraordinary circumstances.

In Genesis Healthcare Corp. v. Symczyk,[54] the Court held that the plaintiff could not pursue a collective action on behalf of others after her claims had been rendered moot.[55] Symczyk pursued a collective action against Genesis under the Fair Labor Standards Act. Before any other individuals opted into the collective action, Genesis made an offer of judgment for the full amount of Symczyk's alleged damages plus attorney fees, which she did not accept. The district court, concluding that the offer of judgment rendered Symczyk's claims moot, dismissed the entire action.[56] The Third Circuit reversed.[57] It held that defendants should not be able to short-circuit collective actions by strategically "picking off" plaintiffs with offers of judgment before conditional certification.[58]

The Supreme Court disagreed. Article III, § 2 limits federal court jurisdiction to resolving "actual controversies" in which the litigants have a "personal stake."[59] If, during the pendency of a case, the parties lose their personal stake in the outcome of a case, the action may not proceed and must be dismissed as moot.[60] Unlike cases where the Court allowed Rule 23 class actions to proceed after a named plaintiff's claims were found moot, no other claimant with independent legal status had been added to the proceeding before Symczyk's claims became moot.[61] Symczyk did not have a continuing interest in shifting attorney fees and costs to the defendant.[62] Nor was Genesis's alleged conduct inherently transitory such that other plaintiffs would not have an opportunity to seek redress for their injuries.[63] Furthermore, distinctions between statutory collective actions and Rule 23 class actions precluded Symczyk's reliance on dicta from prior decisions that defendants should not be allowed to use litigation tactics to frustrate the purposes of Rule 23.[64] Thus, once offer of judgment mooted Symczyk's claims, she lacked standing to pursue a collective action.[65]

In Already, LLC v. Nike, Inc.,[66] the Court addressed whether a defendant's covenant not to assert its rights against a plaintiff moots the plaintiff's claim for declaratory relief. Nike sued Already, alleging that it had infringed Nike's trademark.[67] In response, Already filed a counterclaim seeking a declaration that Nike's trademark was invalid.[68] Nike then issued a "covenant not to sue," in which it "promised that Nike would not raise against Already or any affiliated entity any trademark or unfair competition claim based on any of Already's existing footwear designs, or any future Already designs that constituted a ‘colorable imitation' of Already's current products."[69] The district court consequently dismissed all claims in the action.[70] The issue presented on appeal was "whether a covenant not to enforce a trademark against a competitor's existing products and any future ‘colorable imitations' moots the competitor's action to have the trademark invalidated."[71]

Nike, as " ‘a defendant claiming that its voluntary compliance moots a case,'" bore " ‘the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.' "[72] The Court held that Nike's broad, unconditional, and irrevocable covenant met this burden.[73] Once Nike met that burden, "it was incumbent on Already to indicate that it engages in or has sufficiently concrete plans to engage in activities not covered by the covenant."[74] Because Already failed to present such evidence, instead offering speculation that would not have sufficed to support standing in the first instance, the case became moot.[75]

In Clapper v. Amnesty International USA,[76] the Court similarly held that a plaintiff may not seek injunctive relief based on speculative injury.[77] The Clapper plaintiffs sought a declaration that provisions of the Foreign Intelligence Surveillance Act (FISA)[78] allowing surveillance of certain communications are unconstitutional.[79] The plaintiffs argued that they had standing to pursue this claim because there was "an objectively reasonable likelihood" that they would be subject to surveillance under FISA, and because that risk forced them "to take costly and burdensome measures to protect the confidentiality of their international communications."[80] The Court held that this "theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending.[81] Fear of future adverse action by the defendant is insufficient to establish present injury in fact, even if that fear causes the plaintiffs to incur "self-inflicted" expense in an attempt to avoid potential injury.[82]

In Hollingsworth v. Perry,[83] the Court addressed the question of whether citizen proponents of California's Proposition 8 ballot initiative had standing to appeal a federal court declaration that the law was unconstitutional even though California's executive branch chose not to defend it. The Court held that although the intervenors had a "unique," "special," and "distinct" role in the enactment of Proposition 8, they had no post-enactment "‘personal stake' in defending its enforcement that is distinguishable from the general interest of every citizen of California."[84] The fact that California state courts would recognize the intervenors' right to defend the initiative in a state court action did not instill the intervenors with a "personal, particularized" interest sufficient to confer Article III standing.[85] The intervenors therefore could not pursue the appeal.[86]

In United States v. Windsor,[87] issued the same day as Hollingsworth, the Court considered circumstances under which standing to appeal may exist even though the principal parties do not contest the lower court's ruling. Windsor was the surviving spouse of a same-sex couple who were lawfully married in Ontario, Canada. When the spouse died, the couple resided in New York State, which considered their marriage valid. Following the death of her wife, Windsor paid federal taxes on her wife's estate. Windsor then filed for a refund, arguing that as a surviving spouse, she qualified for the marital exception to the estate tax.[88] The Internal Revenue Service concluded Windsor did not qualify for the marital exception to the federal estate tax because Section 3 of the Defense of Marriage Act (DOMA) defines "marriage" as the "legal union between one man and one woman as husband and wife" and "spouse" as "a person of the opposite sex who is a husband or a wife."[89] Windsor then sued on the basis that Section 3 of DOMA violates constitutional guarantees of equal protection.[90]

President Obama concluded that DOMA's Section 3 is unconstitutional and ordered the Department of Justice not to contest Windsor's claims.[91] The president also concluded that "the United States had an interest in providing Congress a full and fair opportunity to participate in litigation" questioning the constitutionality of the statute.[92] Consequently, in the absence of a judicial finding that DOMA's Section 3 is unconstitutional, the Executive Branch would enforce the statute.[93]

Because the Department of Justice did not participate in the action, the district court allowed the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives to intervene and defend DOMA. The district court determined that Section 3 was unconstitutional and ordered the government to issue a refund of the estate tax to Windsor. Instead of issuing the refund, the government appealed. The Second Circuit affirmed the judgment, and the government sought certiorari to the Supreme Court.[94]

Before considering the merits of Windsor's challenge to Section 3 of DOMA, the Court questioned whether the executive branch's decision not to participate in the litigation defeated Article III standing.[95] The Court quickly determined it did not. Both parties were injured—Windsor because she had not received the refund ordered by the district court, and the government because it had been ordered to pay the funds. There clearly was a controversy for the Court to address.[96]

Although the case satisfied Article III's standing requirements, the Court was concerned that it would be imprudent under the circumstances for it to determine the statute's validity.[97] The executive branch's policy of enforcing a statute it refused to defend raised the possibility that the action did not involve a "real, earnest and vital controversy,"[98] and the Court would not have the benefit of "that concrete adverseness upon which the court so largely depends for illumination of difficult constitutional questions."[99] BLAG's "sharp adversarial presentation of the issues," however, satisfied the Court's prudential concerns.[100] Furthermore, failing to address the validity of the statute would undermine the judiciary's constitutional primacy in determining whether an Act of Congress is unconstitutional.[101] Thus, the facts of the case warranted the Court's involvement in determining the validity of the statute.[102]

These cases make clear that an actual, particularized controversy between the parties remains the touchstone for federal court jurisdiction. Fear of future injury (even fear that is objectively reasonable and may adversely affect the plaintiff) is not sufficient to create an Article III controversy.[103]

The Court decided several cases involving federal preemption, a few of which are directly relevant to attorneys with tort or insurance practices.

In Wos v. E.M.A.,[104] the Court addressed a question left open by its decision in Arkansas Department of Health & Human Services v. Ahlborn.[105] In Ahlborn, the Court held that the anti-lien provision of the federal Medicaid law preempted a state's effort to recover anything more than the portion of a Medicaid beneficiary's tort settlement "designated as payments for medical care."[106] In that case, the parties stipulated that 6 percent of the Medicaid beneficiary's tort settlement was for "medical care,"[107] and federal law did not permit the state to recover more.[108] The Court did not need to decide how courts should determine what amount of the Medicaid beneficiary's tort judgment or settlement was attributable to "payments for medical care," and thus what states are entitled to recover from tort judgments and settlements.[109] In Ahlborn, the Court left open the possibility that the states could adopt or employ special rules and procedures to allocate tort settlements to determine the amount to allocate to medical expenses.[110]

The North Carolina law at issue in Wos imposed an irrebuttable presumption that the state was entitled to recover the lesser of its medical expenditures on behalf of the Medicaid beneficiary or one-third of the beneficiary's tort recovery.[111] This was true regardless of the amount of the tort recovery that was actually or fairly attributable to medical care.[112] The law allowed the state to recover one-third of a Medicaid beneficiary's tort recovery even if a proper judgment or stipulation attributed a smaller percentage to medical expenses.[113] Justice Kennedy, writing for the Court, observed that there was no evidence North Carolina's law was "reasonable in the mine run of cases," and that the law provided no "mechanism for determining whether it is a reasonable approximation in any particular case."[114] The Court held that North Carolina's "irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act's clear mandate that a State may not demand any portion of a beneficiary's tort recovery except the share that is attributable to medical expenses."[115] The Court again left it to the states to craft rules and procedures to fairly allocate a Medicaid beneficiary's tort recovery to medical expenses and other types of damages.[116] At the same time, the Court made clear that the states' procedures must comply with federal law and not permit recovery of more than the amount fairly attributable to medical expenses.[117]

The Court noted that sixteen states and the District of Columbia al-ready have hearing procedures in place to determine the amount of a tort recovery that is fairly attributable to medical expenses, as well as rebuttable presumptions and adjusted burdens of proof.[118]

The Court expanded the "impossibility preemption" doctrine in Mutual Pharmaceutical Co. v. Bartlett.[119] Two years earlier, the Court had expanded the application of "impossibility preemption" in PLIVA, Inc. v. Mensing,[120] when it held that federal law preempts state failure-to-warn claims against the manufacturers of generic prescription drugs.[121] In Bartlett, the Court held that federal law also preempts certain state design-defect claims against the manufacturers of generic prescription drugs.[122]

After suffering devastating injuries from using the generic drug sulindac, Karen Bartlett sued the drug's manufacturer in New Hampshire alleging failure-to-warn and design-defect claims.[123] Her failure-to-warn claim was dismissed, and she proceeded on her design-defect claim under state law.[124] After a two-week trial, a jury awarded her $21 million in damages.[125] The First Circuit affirmed, but the Supreme Court reversed, holding that it was impossible for the manufacturer to comply with its state tort-law duty not to sell an unreasonably dangerous product and its duties under federal law not to change its label.[126] Rejecting Bartlett's argument that the manufacturer could have withdrawn its product from the market, the Court said that the "stop-selling" rationale was "incompatible with our pre-emption jurisprudence" and would render impossibility preemption " ‘all but meaningless.' "[127]

Bartlett closed another door on the claims of plaintiffs who are injured by generic prescription drugs. In a footnote, the Court left open the possibility of state-law design-defect claims that parallel federal misbranding law. Thus, if new, scientifically significant information becomes available after a drug is approved by the FDA showing that the drug is dangerous when used in the manner prescribed or suggested in its FDA-approved label, those injured by the drug may have a state-law claim that is not preempted by federal law.[128]

Finally, in Hillman v. Maretta,[129] the Court held that federal law pre-empts a provision of Virginia law regarding the designation of beneficiaries of an insurance policy after a divorce or annulment.[130] The decedent married and divorced Judy Maretta before marrying Jacqueline Hillman, the plaintiff widow.[131] While he was married to Maretta, the decedent designated her as the beneficiary of his Federal Employees' Group Life Insurance (FEGLI) policy and never changed that designation before his death.[132] Under the Federal Employees' Group Life Insurance Act of 1954 (FEGLIA),[133] Maretta, as the designated beneficiary, received the death benefits. Hillman sued Maretta for the proceeds of the FEGLI policy pursuant to a Virginia state law that effectively revoked a beneficiary designation of a former spouse in the case of a divorce or an annulment.[134]

FEGLIA specifies an "order of precedence" in which life insurance benefits are to be paid when an employee dies.[135] The employee's designated beneficiary receives the benefits, and if the employee did not designate a beneficiary, the law provides that the widow or widower, if any, will receive the benefits.[136] Absent a widow or widower, the benefits accrue to the employee's child or children, the employee's parents, the executor of the estate, and other next of kin.[137] If a decree, order, or agreement upon divorce, annulment, or legal separation is received by the employing agency or the Office of Personnel Management before the employee's death, then the terms of that document will determine the distribution of the benefits.[138] Virginia law provided a cause of action to a widow or widower against a former spouse who received the payment of any death benefit that the former spouse was not entitled to under Virginia State law.[139] The Court held that FEGLIA preempts the Virginia law "because it interferes with Congress' objective that insurance proceeds belong to the named beneficiary."[140] Pursuant to the Court's ruling in Hillman, other state laws or state common law rules directing that FEGLI policy benefits belong to someone other than the person or persons entitled to the benefits under FEGLIA would also be preempted.

The Court decided a few notable cases that defy easy categorization. Among the most anticipated decisions of the term, Kiobel v. Royal Dutch Petroleum Co.[141]presented the question of "whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute [ATS], for violations of the law of nations occurring within the territory of a sovereign other than the United States."[142] The Court unanimously held that the plaintiffs, Nigerian nationals, could not state a claim under the ATS against two foreign corporations with minimal American presence for allegedly assisting in perpetuating acts of torture or genocide.[143] But the Court could not agree on a rationale. Chief Justice Roberts, writing for a five-Justice majority, found that neither the text, history, nor purpose of the ATS rebutted the presumption against extraterritorial application of the law.[144] Justice Kennedy, in a brief concurrence, agreed with what he called a narrow ruling. In his view, the decision allowed for future consideration of whether suits alleging "serious violations of international law principles protecting persons" are also foreclosed by the presumption against extraterritoriality.[145] Justice Alito, in a concurrence joined by Justice Thomas, explained that "a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality— and will therefore be barred—unless the domestic conduct is sufficient to violate an international law norm" that civilized nations accept.[146] Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, in an opinion concurring in the judgment, rejected the application of the presumption against extraterritoriality and instead would have found jurisdiction under the ATS "where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest."[147] The third category, according to Justice Breyer, "includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind," a showing that the plaintiffs failed to make.[148]

Another notable case, Levin v. United States,[149] addressed whether the Medical Malpractice Immunity Act (better known as the Gonzales Act) authorizes battery claims against the United States when an armed forces physician operates without a plaintiff's consent.[150] Writing for a unanimous Court, Justice Ginsburg began by explaining that the Federal Tort Claims Act waives governmental immunity from tort suits with the exception of battery claims from this waiver.[151] The Gonzales Act, however, provides that, "for purposes of" the act, the FTCA's intentional tort exception " ‘shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical.. . functions.' "[152] Based on this plain language, the Court ruled that the Gonzales Act abrogates the FTCA's intentional tort exception and thus permits suit against the United States alleging medical battery by a member of the armed forces.[153]

A decidedly more contentious issue of statutory interpretation sharply divided the Court in Maracich v. Spears.[154] In this case, lawyers serving as counsel in a representative action against South Carolina car dealers alleged that the dealers had unlawfully charged car buyers certain administrative fees. Seeking to identify those buyers, as well as dealers who may have collected the fees, the lawyers obtained personal information from the South Carolina Department of Motor Vehicles. The lawyers then contacted these buyers in writing, inviting them to join the suit as plaintiffs.[155] Subsequently, several individuals whose personal information was released by the state DMV, and who were solicited by mail without permission, filed suit against the lawyers alleging violations of the Driver's Privacy Protection Act of 1994 (DPPA).[156]

The Court in Maracich divided five-to-four on "whether the solicitation of clients is a permissible purpose for obtaining personal information from a state DMV" under the DPPA.[157] Writing for the majority, Justice Kennedy explained that the DPPA, which generally bans the disclosure of personal information collected by state DMVs, contains fourteen exceptions.[158] One such exception allows disclosure " ‘[f]or use in connection with any civil, criminal, administrative, or arbitral proceeding in any Federal, State or local court or agency[.]' "[159] But another allows "solicitation" only if a driver affirmatively consents.[160] Reading the two exceptions together, Justice Kennedy concluded that an attorney's "[s]olicitation of prospective clients is not a permissible use ‘in connection with' litigation, or ‘investigation in anticipation of litigation.' "[161] In dissent, Justice Ginsburg, joined by Justices Scalia, Sotomayor, and Kagan, lamented that the Court's ruling exposed the lawyers to massive civil liability and criminal fines. This "is scarcely what Congress ordered in enacting the DPPA," she argued.[162] In Justice Ginsburg's view, the DPPA's exception permitting the disclosure and use of DMV information in anticipation of, and in connection with, litigation authorized the lawyers' conduct in this case.

In U.S. Airways, Inc. v. McCutchen,[163] the Court considered whether an employee participating in a health benefits plan that his employer established under the Employee Retirement Income Security Act of 1974 (ERISA)[164] was required to reimburse the employer for medical expenses he had incurred as a result of a car accident and then recouped in a tort suit against the negligent driver.[165] The Court unanimously agreed that in determining "how to apportion, as between an insurer and a beneficiary, a third party's payment to recompense an injury," the ERISA plan's terms would govern if clear.[166] The plan plainly required reimbursement under the circumstances.[167] But because the plan was silent about allocating the costs of recovery, including attorney fees, Justice Kagan, writing for the Court, concluded that the equitable "common-fund" doctrine controlled that allocation.[168] Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, dissented, arguing that the employee had failed to preserve, and had effectively conceded, the question of attorney fees.[169]

Every appellate brief writer who has chafed at having to separate the procedural and factual histories of the litigation can take heart. The Supreme Court issued an order in 2013 adopting amendments to the Federal Rules of Appellate Procedure that consolidate the statement of facts with the statement of the case.[170] The amendments took effect on December 1, 2013, and govern all proceedings begun after that date as well as all proceedings then pending "insofar as just and practicable."[171]

The prior Federal Rule of Appellate Procedure 28(a)(6) required that the appellant's brief contain "a statement of the case briefly indicating the nature of the case, the course of proceedings, and the disposition below."[172] The prior Rule 28(a)(7) required a separate "statement of facts" following the statement of the case.[173] The amendments to Rule 28(a) consolidate these subdivisions into a new subdivision (a)(6) that calls for one "concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record."[174] This amendment brings Rule 28(a) into line with Supreme Court Rule 24.1(g),[175] upon which the amendments are loosely modeled.[176] The revised rule "allows a lawyer to present the factual and procedural history of a case chronologically, but also provides flexibility to depart from chronological ordering."[177]

Most appellate lawyers will likely embrace the change. According to the Advisory Committee Note, "experience has shown that [separate statements of the case and of the facts] have generated confusion and redundancy."[178] The Advisory Committee on Appellate Rules elaborated in its report that "[i]t seems intuitively more sensible to permit the appellant to weave those two statements together and present the relevant events in chronological order."[179]

Not everyone welcomed the amendments as published. One concerned commenter observed that judges and clerks reading a brief need a way to quickly locate a description of the rulings presented for review.[180] The Committee responded by adding language to the Advisory Committee Note describing the contents of the statement of the case and indicating that subheadings are permitted, "particularly for the purpose of highlighting the rulings presented for review."[181]

Lawyers should continue to omit extraneous procedural details and un-important dates from the statement of the case.[182] Indeed, the Committee's express aim in amending the rule to refer to "the relevant procedural history" rather than to "the course of proceedings" was to "discourage the unnecessary detail with which some briefs currently describe the procedural history of the case."[183] Appellate attorneys can now weave together the factual and procedural aspects of the case in a streamlined and compelling way, creating a solid foundation for a persuasive brief.

See Footnotes

Republished with permission by the American Bar Association Tort Trial & Insurance Practice Law Journal, Volume 49, Number 1, Fall 2013. © 2013 by the American Bar Association.

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