Amicus Briefing

An amicus curiae (“friend of the court”) brief is filed by a person or entity who is not a party to the action but who is interested in the legal principle to be developed because of the importance of that principle to their own interests or later litigation. An amicus brief can be important to the outcome of an appeal because it brings to the court’s attention legal arguments and perspectives that are different from those advanced by the parties.

The Supreme Court and Appellate Practice Group provides pro bono representation of amicus curiae on matters of significance to the Firm’s clients. Because the Firm’s clients have varied interests, the Supreme Court and Appellate Practice Group has filed amici briefs in a variety of cases in the United States Supreme Court and Courts of Appeal involving issues relating to many of the areas in which the Firm practices.

The securities cases in which the Firm has filed important amicus curiae briefs include: Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., No. 06-43, and Tellabs, Inc. v. Makor Issues & Rights, Ltd., No. 06-484, both before the United States Supreme Court, and In re Dynex Capital Securities Litigation, No. 06-2902-cv, before the United States Court of Appeals for the Second Circuit. These briefs were filed on behalf of states and public pension funds in three cases concerning critical issues of investor protection and securities litigation. These states and public pension funds collectively manage approximately $568 billion of pension funds, represent millions of pensioners, and have an acute interest in ensuring that investor rights are protected.

The Firm also filed an amicus curiae brief in the Supreme Court on behalf of Professor Arthur R. Miller, co-author of the authoritative Federal Practice and Procedure, in Exxon Shipping Company v. Baker, No. 07-219. The appeal, arising from the protracted litigation following the 1989 Exxon Valdez oil spill, addressed complex issues of procedural law, including the proper application of Federal Rule of Civil Procedure 50.

In August 2008, the Firm’s Supreme Court and Appellate Practice Group filed a brief with the U.S. Supreme Court in Wyeth v. Levine, No. 06-1249. The Court issued its ruling in a landmark decision in March 2009. Ruling in favor of the plaintiffs and siding with Bernstein Liebhard’s clients, the Court concluded that FDA-approved labeling of pharmaceutical drugs does not preempt state law product liability claims for injuries caused by the drugs. The Firm’s Supreme Court and Appellate Practice Group prepared the amicus brief on behalf of various doctors and third-party payer union health and welfare funds.

On July 1, 2009, the Supreme Court and Appellate Practice Group filed an amicus curiae brief with the United States Court of Appeals for the Second Circuit in UCFW Local 1776 v. Eli Lilly and Co., 09-0222-CV, on behalf of the AARP and Prescription Access Litigation LLC (“PAL”) in support of plaintiff-appellees. The AARP is a nonpartisan, nonprofit organization of nearly forty million members that is dedicated to addressing the needs and interests of people 50 and over, including advocating for access to affordable health care. PAL is a national coalition of more than 130 organizations in 36 states and the District of Columbia that seeks to make prescription drugs affordable for consumers by challenging illegal pricing tactics and deceptive marketing by pharmaceutical companies and others.

In October 2009, the Supreme Court and Appellate Practice Group filed an amicus curiae brief in the United States Supreme Court in Merck & Co. v. Richard Reynolds, No. 08-905 (U.S.), which the Court decided in April 2010. The Court resolved the standard to be applied by lower courts ruling on the deadline for filing a securities fraud lawsuit under federal law. While there had been broad agreement among lower courts that the law’s two-year filing period for such lawsuits begins to run once an investor becomes aware that fraud may have occurred, those courts were widely split on how to apply that standard. At issue in the Merck case was the view adopted by the Third Circuit Court of Appeals, which was that the investor has no duty to investigate suspicion of fraud, and the two-year filing period does not begin to run until the investor comes upon evidence of scienter, i.e., that the fraud was intentional. Affirming the Third Circuit and adopting the position Bernstein Liebhard LLP advocated for our clients, the Court held that a plain reading of the statute of limitations – “two years after discovery of the facts constituting the violation” – can only mean that the clock starts running when the plaintiff actually discovers facts sufficient to state a claim.

If you would like additional information about the Supreme Court and Appellate Practice Group’s amicus curiae briefing, please contact Stanley D. Bernstein.