Thursday, September 18, 2008

Defense Amici – One Stop Shopping

No law this time. This is a purely practical post.

We’ve done quite a few posts that have presented the legal arguments we’ve found in various defense-side amicus briefs – mostly in the “FDA Cubed” cases (Riegel, Kent, and twice in Levine) that have so serendipitously (for us) happened to coincide with our blog’s comparatively brief existence on the Web. Without the three Supreme Court cases, what would we have had to blog about?

And, more importantly, who would want to listen to us? (Don't answer that).

We’ve done those posts that because we think that defense-side amici in big cases put together arguments that the rest of us mere mortals can use to our clients' benefit in our own cases.

But how do we mere mortals get these guys when we need them?

That’s what this post is about.

Suppose one of us mere mortals – representing, say, a small medical device company or a bit player in some multidistrict litigation morass – ends up grabbing the tiger by the tail. We get a major win (yay!), or worse, take a significant hit (boo! – but it does happen). The case goes up on appeal and is affirmed (or reversed, it doesn’t really matter for purposes of this post) in an unpublished opinion.

Then lightning strikes.

The Supreme Court (state or federal) decides to take your case.

All of a sudden your case is a very big deal. All of a sudden, your opposing counsel disappears, and the plaintiff is now represented by the Public Citizen Litigation Group.

All of a sudden, you need amicus curiae help of your own. It can happen. Just ask Pamela Buckman (or her lawyer).

You don’t want to get slimed. So…. Who ya gonna call?

It ain’t ghostbusters in this business.

And that’s what this post is all about. We’ve reached out to the major defense-side amicus groups to get the basic information that defense counsel in such a situation need to bring a case to their attention. This post is still something of a work in progress at this point, and we’ll try to update as we get more information (assuming we do).

One general piece of advice: If you need them, don’t waste any time in contacting these folks. Any amicus group needs (and, as importantly, likes) sufficient time to consider the merits of a case, to make a decision, to engage a brief writer, and to get a brief written. In most jurisdictions (but there are notable exceptions) the timing for amicus briefs is tied to the due date for the principal brief filed by the side they are supporting. That means, especially if you’ve lost below and are going to be submitting your brief first as appellant, you need to get your client on board, contact these groups, and submit your case to them as soon as possible after your case has been accepted for further appellate review.

We can’t emphasize the importance of timing enough. The likelihood of getting an amicus is very much related to the time available to get a brief approved, written, and filed.

With that, here are the amicus players in the drug and device area that we know enough about to ask, and here’s how to ask them to appear as amici:

Advamed (Advanced Medical Technology Ass’n): Advamed is a major trade association for medical device manufacturers, so medical device cases are the primary focus of its amicus activity. Advamed primarily appears in the United States Supreme Court, but will consider other courts if the case is important enough. The contact person for submitting a case for Advamed’s consideration is Christopher White (cwhite@advamed.org). There are no particular forms to fill out. A detailed email with the opinion and relevant pleadings attached will suffice. Advamed has an amicus committee, and prefers six weeks lead time to consider a case. It will not consider a case submitted with a less than three week lead time. Advamed may join another amicus brief or file its own as the needs of the case require. It helps, but is not essential, for the client to be an Advamed member.

ATRA (American Tort Reform Ass’n): ATRA’s signature issue is tort reform, but it will file briefs on other important tort law issues. You (or your client) have to be an ATRA member for any request to be considered. Contact people for submitting a case for ATRA’s consideration are Tiger Joyce (ShermanJoyce@atra.org) or Matt Fullenbaum (mfullenbaum@atra.org). ATRA has no specific turnaround time requirements. There’s no set form to fill out, and ATRA will tell you what it needs in any given case.

DRI (Defense Research Institute): As “The Voice of the Defense Bar,” DRI will consider appearing as amicus in any case raising substantive or procedural issues important in the defense of personal injury cases. The contact person for submitting a case for DRI’s consideration is John Kouris (johnrkouris@dri.org). The case will then be submitted to a seven-person committee. DRI requests at least three weeks turnaround time for filing a brief, although it has “fast track” procedures for late, but particularly important matters. DRI has affiliates in every state, so if the case presents an issue involving a single state’s law, expect the case to be referred to one of those state affiliates. There are no particular forms to fill out, but the letter/email submitting the case should state the issue involved and include relevant briefs and opinions. DRI membership is not needed to submit a case.

GPhA (Generic Pharmaceutical Ass'n):  GPhA is the major trade association for manufacturers and marketers of generic prescription drugs.  GPhA's primary focus is on patent and preemption issues related to generic drugs and regulatory issues involving approval of generic drugs and generic exclusivity.  The contact person for submitting a case to GPhA is Bob Billings (bbillings@gphaonline.org).  Cases are submitted to GPhA's board of directors, and they have three weeks to decide whether GPhA will appear as amicus.  Cases submitted with less than three weeks notice must be "extraordinary" to be considered, so act quickly.  GPhA has no particular submission form to complete; a letter explaining the matter and the reasons why it should intervene is sufficient.  Applicants are expected to submit whatever information they believe GPhA's board reaonably needs to evaluate the case.  Submitters are typically GPhA members, but membership is not required.

MDMA (Medical Device Manufacturers Ass’n): MDMA is a major trade association for medical device manufacturers, so medical device litigation is the primary focus of its amicus activity. To submit a case for MDMA's consideration, contact Mark Leahey (mleahey@medicaldevices.org). MDMA prefers a month's notice for any case submission. There are no forms to fill out; an email with a description of the issue will suffice as an initial submission. If MDMA needs additional information or documentation, it will so inform the submitter. MDMA has no separate amicus committee, and where necessary uses its board for that function. MDMA frequently joins other organizations' amicus briefs. It helps: (1) if the client is a MDMA member, and/or (2) the submission includes an offer by an outside lawyer (not, of course, retained by a party) to do the actual writing.

NAM (National Ass’n of Manufacturers). NAM is interested in all issues of broad importance to product manufacturers – tort and product liability litigation among them. To submit a case for NAM’s consideration, contact Quentin Riegel (qriegel@nam.org) or Jan Amundson (jamundson@nam.org). NAM prefers as much time as possible to consider a case and to prepare a brief, but has no amicus committee and is capable of responding quickly if the case warrants it. There are no forms to fill out, and NAM will tell you what documentation it wants. On a marginal case, it helps to be a NAM member.

PhRMA (Pharmaceutical Research & Manufacturers of America): PhRMA is the major trade association for producers of non-generic prescription drugs, so the primary focus of its amicus activity concerns cases involving product liability, antitrust, and patent issues that are of unique concern to the research-based pharmaceutical industry. The contact person for submitting a case to PhRMA is Melissa Kimmel (mkimmel@phrma.org) or 202-835-3559. There are no specific forms to fill out, and information is requested on an ad hoc basis. PhRMA has an active amicus committee that decides not only whether to take a case, but what arguments to present, thus PhRMA prefers two weeks to make a decision, although it can move faster in an emergency. It usually takes another two to three weeks to prepare the brief, so lead times of less than a month will decrease the likelihood that PhRMA will participate. PhRMA membership does not influence its decision to appear as amicus.

PLAC (Product Liability Advisory Council): PLAC’s range of interest extends to any issue that affects the litigation of product liability cases. The contact person for submitting a case to PLAC is Jonathan Harrison (jharrison@plac.net). Submitted cases are considered by a committee that meets regularly every two weeks. Cases submitted with less than three weeks lead time are significantly less likely to be accepted. PLAC requires the completion of a case submission form. The documentation PLAC requires is stated in the form. Except where the case involves a writ, PLAC considers cases involving members and non-members on an equal basis. PLAC only briefs writs for members. Members have more influence over what PLAC says in its briefs than non-members.

United States Chamber of Commerce: The Chamber is interested in is all issues of broad importance to the business community – tort and product liability litigation among them. To submit a case for the Chamber’s consideration contact Robin Conrad (rconrad@uschamber.com) or Amar Sarwal (asarwal@USChamber.com). The Chamber requires no particular form to submit a case. It will almost certainly want the opinion being appealed from and usually the briefs. To get the Chamber’s help, it definitely helps to be a member of the Chamber and, better yet, the Chamber’s Litigation Center. The Chamber does have a case selection committee, so it is best to provide as much lead time as possible, ideally a month. Cases can be expedited if the circumstances demand it.

WLF (Washington Legal Foundation): WLF is most receptive to amicus requests where the theme of the brief would be: (1) avoiding excessive government regulation; or (2) avoiding unwarranted tort liability. To submit a case, contact Rich Samp (RSamp@WLF.org). There is no standard procedure for soliciting WLF amicus support and no forms to fill out. WLF will tell you what it needs in any given case. WLF has a Litigation Review Board that approves all amicus work, so it usually takes about a week to process any request. WLF then prefers at least an additional two weeks to get the brief written. WLF favors requests that come with an offer by an outside lawyer (not, of course, retained by a party) to do the actual writing. WLF has no “members” and does not consider possible financial contributions in deciding whether to appear as amicus.

Finally, if any of our readers either has more (or better) information about the entities we’ve listed, or has information about other defense-oriented amicus groups that should be listed here, don’t be shy about contacting us.

1 comment:

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