Defense Amici – Who Ya Gonna Call?

Back in 2008, when Blog was less than two years old, we wrote a practical post entitled “Defense Amici – One Stop Shopping.”  It arose from blogposts we wrote examining the arguments made by defense-side amici curiae in the Riegel, Kent, and Levine (twice) cases then pending in the United States Supreme Court (yes, it’s been that long).  Describing the various amici arguments started us thinking about how could we get in touch with these resources should we ever be in the situation should we become party to an ultra-high profile appeal.

We did that because defense-side amici in big cases put together arguments that the rest of mere mortal defense counsel can use to a client’s benefit.  But how do mere mortals get these amici, should we need them?

That’s what this (updated) post is about.

Suppose that defense counsel – representing, say, a small medical device company (which recently happened in Himes) or a non-target defendant in some multi-district litigation morass (as in Buckman) – ends up grabbing the tiger by the tail.  Counsel obtains a major win (yay!), or worse, takes a significant hit (boo! – but it does happen).  The case goes up on appeal raising a significant issue.  Maybe it even goes to the United States Supreme Court.

Boom!  Lightning strikes.

The Supreme Court takes the case.  It can happen – it did happen to Pamela Buckman.

All of a sudden, the case is a very big deal.  All of a sudden, so-so opposing counsel disappears, and the plaintiff is now represented by the Public Citizen Litigation Group or some similar appellate specialist.

The defense needs amicus curiae support.

Counsel doesn’t want to get slimed.  So….  Who ya gonna call?

In this business, it ain’t Ghostbusters.

That’s what this post is all about.  Just like in 2008, we’ve reached out to major national defense-side amicus groups to get the basic information that defense counsel in such a situation need to bring a case to their attention.  And these are just the national groups.  If you’re in a state appellate court, also consider state-specific defense-side groups.  Moreover, some of the groups listed below have state affiliates.

One piece of general advice – near and dear to Bexis’ heart particularly, since he writes briefs for some of these groups:  Don’t waste any time making contact.  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 persuasive brief written.  The timing for amicus briefs is (in most jurisdictions, but there are notable exceptions) tied to the due date for the principal brief filed the side being supported.  That means, especially when appealing a loss and having to go first as appellant, defense counsel needs to get the client on board, contact these groups, and submit the case to them as soon as possible after the matter has been accepted for further appellate review.

We can’t emphasis the importance of timing enough.  The likelihood of getting amicus support is very much inversely 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 what they need when considering whether to appear as amici in any given case.

AAM (Ass’n for Accessible Medicines):  AAM is the major trade association for manufacturers and marketers of generic drugs and biosimilars.  AAM’s primary focus is on patent, antitrust, and (most relevant to product liability) 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 AAM is Karin Hessler (karin.hessler@accessiblemeds.org).  Cases are submitted to AAM’s board of directors, and they have three weeks to decide whether AAM will appear as amicus.  Cases submitted with less than three weeks’ notice must be “extraordinary” to be considered, so act quickly.  AAM has no particular submission form to complete; a letter explaining the matter and the reasons why it should participate is sufficient.  Applicants are expected to submit whatever information they believe AAM’s board reasonably needs to evaluate the case.  Submitters are typically AAM members, but membership is not required.

AdvaMed – the medtech association (Advanced Medical Technology Ass’n):  AdvaMed is the world’s largest association of medical technology manufacturers, so medical technology cases are the primary focus of its amicus activity.  AdvaMed primarily appears in federal appellate courts, but will consider other courts (e.g., state high courts) if the case is important enough.  The contacts for submitting a case for AdvaMed’s consideration are Patrick Fogarty, Deputy General Counsel, (Pfogarty@advamed.org) and 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 a dedicated review committee  and prefers six weeks lead time to consider a case.  It will not consider a case submitted with a less than three weeks 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.

ALF (Atlantic Legal Foundation):  ALF’s relevant core issues are:  individual liberty, free enterprise, limited and responsible government, and sound science in judicial and regulatory proceedings.  Counsel seeking ALF amicus support in an appellate case need to complete this Amicus Support Request form and submit it to ALF Executive Vice President & General Counsel Larry Ebner (lawrence.ebner@atlanticlegal.org).  ALF can rarely file an amicus brief anywhere with less than 30 days advance notice, and at least 45 days in the Supreme Court.  ALF has no “members” and does not consider possible financial contributions in deciding whether to appear as amicus.

ATRA (American Tort Reform Ass’n):  ATRA’s signature issue is tort reform, however, it’s branched out lately and will file briefs on other important tort law issues.  You (or your client) must 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 (Lauren Sheets Jarrell at lsheetsjarrell@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.

BIO (Biotechnology Innovation Organization):  BIO will consider appearing as amicus curiae in any case with broad implications for the biotech industry, particularly where biotechnology is affected differently than the pharmaceutical or medical device industries.  BIO has two points of contact for amicus brief requests:  For health issues, including pharmaceutical reimbursement, FDA regulatory, antitrust (FTC, pharma M&A), and product liability contact John Delacourt (jdelacourt@bio.org).  For IP issues, including patentability standards, PTO and PTAB procedures, artificial intelligence, and FDA Orange Book listings, contact Hans Sauer (hsauer@bio.org).  The longer lead time BIO has to consider a case, the better.

DRI (Defense Research Institute)/DRI Center for Law and Public Policy (the Center):  At the recommendation of its Amicus Committee, the Center files amicus curiae briefs in cases presenting issues important to civil litigation defense lawyers, their clients, and the civil justice system.  The Center primarily participates in U.S. Supreme Court cases, at both the certiorari and merits stage, and occasionally in federal courts of appeals cases.  Amicus participation in state appellate courts requires consultation with relevant state or local defense organization (SLDO).  The Center usually files amicus briefs in its name only.  Criteria for participation are:  that the Center can add something new and meaningful to the arguments; the importance of the case or issues; and consistency with DRI’s overall mission and goals.  Requests to the Center must be made via its online Amicus Request Form at least 45 days before the requested amicus brief is due (except in extenuating circumstances).  Requests should be made by counsel for the party seeking amicus support.

LCJ:  (Lawyers for Civil Justice):  LCJ’s amicus program is focused on litigation involving amendments to federal rules.  This program is integral to LCJ’s overall mission of supporting reform of procedural rules to further the just, speedy, and inexpensive determination of every action and proceeding.  As amicus curiae, LCJ brings this experience and perspective to bear to support sensible interpretations of civil rules.  These include Fed. R. Evid. 702 (expert witness admissibility), Fed. R. Civ. P. 26(b) (scope and proportionality of discovery); and Fed. R. Civ. P. 37(e) (spoliation of electronic information).  Unlike many amicus organizations, LCJ will participate in important trial court briefing.  LCJ’s submission form is here.  The contact person for making a submission is Alex Dahl (alex@strategicpolicycounsel.com).  LCJ requires at least a month before any brief would be due to evaluate a case and arrange for a brief to be written.

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 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.

MIWG (Medical Information Working Group):  Since 2006, MIWG has sought clarity in the FDA regulatory scheme for dissemination of truthful and non-misleading information about prescription drugs, biological products and medical devices (that is, First Amendment protection), and to improve the federal regulatory framework and enforcement climate affecting manufacturer dissemination of information regarding those products (including products in development and new uses of marketed products (that is, off-label use)) .  On these issues, MIWG regularly files amicus briefs at all levels of litigation, including federal district, circuit, and Supreme Court levels, as well as making FDA regulatory submissions.  Prior MIWG filings may be viewed here.  Litigants interested in submitting a case for MIWG consideration may contact any of:  Kellie Combs (Kellie.Combs@ropesgray.com); Torrey Cope (tcope@sidley.com); Doug Hallward-Driemeier (Douglas.Hallward-Driemeier@ropesgray.com); and/or Jaime Jones (jaime.jones@sidley.com).  No particular format is necessary.

NAM (the National Ass’n of Manufacturers):  The NAM is interested in all issues of broad importance to product manufacturers, tort and product liability litigation among them.  To submit a case for the NAM’s consideration contact Erica Klenicki (eklenicki@nam.org) or Michael A. Tilghman II (mtilghman@nam.org).  The NAM prefers as much time as possible consider a case and 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 the NAM will tell you what documentation it wants.  Although not dispositive, the NAM typically limits amicus participation to cases that will have a significant impact on its members.

PhRMA (Pharmaceutical Research & Manufacturers of America):  PhRMA is the major trade association for the country’s leading innovative biopharmaceutical research companies (non-generic prescription drugs), so the primary focus of its amicus activity concerns cases involving product liability, fraud and abuse, civil justice fairness, antitrust, and intellectual property-related issues that may be of unique concern to the research-based pharmaceutical industry. The contact person for submitting a non-IP related case to PhRMA is Melissa Kimmel (mkimmel@phrma.org) and for IP-related matters is David Korn (dkorn@phrma.org).  There are no specific forms to fill out, however, PhRMA appreciates receiving a short memo or letter regarding the request for amicus support that explains the procedural posture of the case, the legal issues involved and the potential significance of the legal questions to PhRMA’s members.  PhRMA appreciates as much lead time as possible to send requests for amicus support through its member vetting process.  Any additional information needed would be  requested on an ad hoc basis.

PLAC (Product Liability Advisory Council):  PLAC’s range of interest extends to any issue that affects the litigation of cases against product producers and sellers.  The contact person for submitting a case to PLAC is Rita McConnell (rmcconnell@plac.net or amicus@plac.com).  Submitted cases are considered by a Case Selection Committee that meets the first Thursday of each month.  To be considered, requesting parties must complete PLAC’s Amicus Questionnaire and submit it, along with the documentation requested in the questionnaire, at least ten days before the monthly meeting, and ideally at least six weeks before a brief would be due.  Cases submitted with less than ten days lead time for committee consideration, or less than thirty days before a brief is due, are significantly less likely to be accepted.  PLAC considers requests from both members and non-members but priority is given to member requests. See PLAC’s Amicus FAQs.

United States Chamber of Commerce Litigation Center:  The Chamber’s Litigation Center fights for business and free enterprise in the courts.  It is interested in issues of broad importance to the business community – tort and product liability litigation among them.  To submit a case for the Chamber’s consideration, please fill out this form, and, once completed, email it to LitigationCenter@USChamber.com.  The Litigation Center prefers to receive the opinion being appealed and other relevant briefs. The Litigation Center has its own membership and frequently contacts members when considering whether to file an amicus brief.  As always, it is best to provide as much lead time as possible, ideally at least a month.  Consideration can be expedited if the circumstances demand it.

WLF (Washington Legal Foundation):  Founded in 1977, WLF promotes free enterprise, individual rights, limited government, and the rule of law.  WLF is an active amicus participant, especially at the U.S. Supreme Court and the federal courts of appeals.  To submit an amicus request, contact WLF’s General Counsel and Vice President of Litigation Cory Andrews (candrews@wlf.org).  WLF has a Litigation Review Board that approves all amicus work.  While there are no forms to complete, WLF is most receptive to amicus requests that are:  (1) accompanied by a concise amicus memo detailing the case and the legal issues WLF might cover, and (2) received, at minimum, four to six weeks prior to the amicus deadline.  WLF generally avoids participating in business-to-business litigation.  WLF welcomes requests that come with a pro bono offer by an expert attorney (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.