Update: Former Attorney General of the U.S. and Fellow Former Federal Judges Urge SCOTUS to Deny Review in Argentine Debt Case

ArgentinaWe’ve been keeping tabs on Argentina’s appeal to the U.S. Supreme Court of an appeals court decision that upheld the right of bondholders to enforce their contractual rights against foreign states that have defaulted on their commercial debt (Republic of Argentina v. NML Capital). WLF filed a successful amicus brief supporting the bondholders’ rights in this case when it was before the U.S. Court of Appeals for the Second Circuit.

The latest development in the case is a rather intriguing one, considering the stature of the individuals involved. Former Attorney General of the United States Michael Mukasey (who also previously served as a federal district court judge) has filed an amicus brief joined by five other former federal district or circuit court judges encouraging the Supreme Court to deny review in the Second Circuit case. Appellees, i.e. parties who prevailed in a case being appealed to a higher court, normally discourage amicus briefs supporting their opposition to certiorari, as such briefs may draw unwelcome attention to the appellant’s case. Given the high stakes in this appeal, and the high-profile decisions by certain nations to support Argentina (or, in the case of the United States, a decision not to support), however, it’s doubtful that the brief from General Mukasey and his fellow former judges is unwelcome.

The five other former federal judges are: Alfred J. Lechner, Jr. (District of New Jersey); Michael J. McConnell (Tenth Circuit); Paul G. Cassell (District of Utah); Michael Chertoff (Third Circuit, also former Secretary, Department of Homeland Security); and Mark Filip (Northern District of Illinois, also former Deputy Attorney General of the U.S.).

On May 7, WLF Chief Counsel Richard Samp participated in a teleconference where he discussed the former judges’ amicus brief and other matters related to Argentina’s pending cert petition.  Below are several of the stories Rich’s comments at the teleconference generated:

 

Third Circuit’s Denial of Rehearing in Class Action Strengthens “Ascertainability” Criterion

Third Circuit_LS_option1_1In a February 21, 2014 post we discussed a U.S. Court of Appeals for the Third Circuit decision, Carrera v. Bayer Corp. The court denied certification to a class of multivitamin purchasers because the plaintiffs offered no reliable and administratively feasible way to prove they had purchased the targeted product (and were thus members of the class). 

On May 2, the Third Circuit denied rehearing en banc in Carrera. The written opinions accompanying the court’s denial of rehearing reflect the rancor this issue can inspire among federal judges.

Denial of Rehearing Opinion. Nine judges voted to deny rehearing. Judges Smith, Chargares, and Scirica, all of whom sat on the panel that decided Carrera last August, signed an “Opinion Sur Denial of Panel Rehearing.” The opinion reiterated that Carrera failed to meet his ascertainability burden. The judges also noted that the panel remanded the case to the district court where Carrera would have an opportunity to “submit a screening model specific to this case that can reliably distinguish between accurate affidavits and fraudulent or inaccurate ones.”

Dissent from Denial of Rehearing. Judges Ambro, Rendell, Fuentes, and Chief Judge McKee voted to rehear Carrera. Judge Ambro penned an “Opinion Dissenting Sur Denial.” Judge Ambro was the author of a 2012 opinion, Marcus v. BMW of NA, on which Carerra relied. In his dissent from rehearing denial, Judge Ambro stated that “Carerra goes too far” in applying the principles laid out in Marcus. He contrasted the “prolix” parameters of the Marcus class with the “simple” class definition in Carerra, implying that simplicity eases the ascertainability burden.

Judge Ambro was also troubled that because Bayer did not sell its multivitamins directly to consumers (which he termed “a fortuity”), it would not have sales records. He explained that in situations where “the defendant’s actions—a defendant’s lack of records and business practices,” as the judge put it—”cause the difficulty, we should be flexible with our application” of ascertainability requirements. This is quite at odds with the Third Circuit’s rationale in another August 2013 class-action decision, Hayes v. Wal-Mart. Judges Ambro, Fuentes, and Scirica presided over that appeal. In remanding the case back to the district court to determine ascertainability, Judge Scirica wrote, “the nature or thoroughness of a defendant’s recordkeeping does not alter the plaintiff’s burden to fulfill Rule 23’s requirements.” Judge Ambro did not dissent in Hayes.

Call for Judicial Conference Review. In addition to calling for rehearing en banc in Carrera, Judge Ambro urged the Judicial Conference’s Committee on Rules of Practice and Procedure to “look into . . . how easy (or hard) must this identification [i.e. if class members can be reasonably ascertained] be?” Continue reading “Third Circuit’s Denial of Rehearing in Class Action Strengthens “Ascertainability” Criterion”