When corporations go to SCOTUS, class counsel turn to this man

December 9, 2014

(Reuters) – A Reuters special report Monday pinpointed eight lawyers who made a whopping 20 percent of the oral arguments at the U.S. Supreme Court in the last decade. One of them, David Frederick of Kellogg Huber Hansen Todd Evans & Figel, frequently appears on behalf of plaintiffs in business cases, most recently in a 2013 securities case, Amgen v. Connecticut Retirement Plans. (Frederick would have argued for investors in Public Employees’ Retirement System of Mississippi v. IndyMac but the justices dismissed the case.) Paul Clement of Bancroft argued for a class of small businesses suing American Express in the 2013 case Amex v. Italian Colors.

Thomas Goldstein of Goldstein & Russell and Jeffrey Fisher of Stanford Law School often represent individuals, including in criminal cases. But as a group, Reuters found, the elite eight – Ted Olson of Gibson, Dunn & Crutcher, Seth Waxman of Wilmer Cutler Pickering Hale & Dorr, Gregory Garre of Latham & Watkins and Carter Phillips of Sidley Austin, in addition to the aforementioned four – primarily represent corporations. Half of the Supreme Court arguments by these eight lawyers, according to the special report, were for businesses.

Samuel Issacharoff, a law professor at New York University, isn’t on the Reuters list. He has made only one argument before the Supreme Court, arguing for asbestos claimants in an incredibly complicated, multiparty insurance dispute between Travelers and Chubb. But in the past few years, Issacharoff has acted as a firebreak at the high court for plaintiffs suing big corporations – not because he argues on their behalf before the justices but because he’s fended off certiorari petitions by big businesses bent on restricting class actions. And he’s beaten some of the most successful big-firm Supreme Court practice groups to do it.

On Monday, the justices refused to take BP’s appeal of its own class action settlement with claimants from the 2010 Deepwater Horizon oil spill, despite arguments by BP’s lawyers at Gibson Dunn that the settlement, as interpreted by the trial judge overseeing it, violated Constitutional standing provisions. Issacharoff was counsel of record for the plaintiffs’ lawyers on the BP steering committee, who hired him even before the settlement was signed to advise on potential pitfalls under the federal class action rules.

BP had powerful friends to back its cert petition – including the British government and foreign business associations, as well as the usual array of U.S. pro-business groups – and a big budget for advertisements attacking the settlement. The justices nevertheless declined to take BP’s bait on class actions and supposedly uninjured claimants.

In a paper about the BP appeals (written before the Supreme Court denied cert but after the justices hinted at that outcome by refusing to stay the case), The Federalist Society credited – or, rather, blamed – Issacharoff for designing the theory of the case for the class. “This case demonstrates the wisdom of the plaintiffs’ lawyers representing the class who early on brought Professor Issacharoff into the litigation,” the paper said. “Professor Issacharoff has been able to shape the strategy.” (BP class counsel Stephen Herman of Herman Herman & Katz told me Issacharoff helped “keep everyone focused on what are truly the key issues, while maintaining the right tone.”) In 2013, Issacharoff was counsel of record to Florida smokers suing R.J. Reynolds Tobacco in so-called “Engle progeny” personal injury suits. Paul Clement of Bancroft represented R.J. Reynolds, which claimed that the suits violated due process. The Supreme Court denied cert. In 2011, he was counsel of record at the Supreme Court for a class of diamond purchasers whose settlement with DeBeers was challenged by objectors; the justices denied cert in that case as well.

Perhaps his most important cert opposition, though, came in the infamous moldy washer litigation, which made trips to the Supreme Court in 2013 and 2014. Mayer Brown, which represented Sears and Whirlpool in linked cases, argued that both the 6th and 7th U.S. Circuit Courts of Appeals erred when they certified classes of purchasers of washing machines with an alleged propensity to develop a musty odor. In 2013, the Supreme Court vacated the class certifications and sent the cases back to the federal circuits for reconsideration in light of its opinion in Comcast v. Behrend.

The big Supreme Court fight came the following year, after the 6th and 7th Circuits recertified the moldy washer liability classes. Sears and Whirlpool and their broad array of amicus supporters portrayed the appeals as a perfect opportunity for the justices to rein in class actions aggregating plaintiffs with different sorts of claims, including some who had supposedly suffered no injury at all. The Wall Street Journal’s editorial page urged the court to take the cases.

Jonathan Selbin of Lieff Cabraser Heimann & Bernstein, who is leading the moldy washer litigation, told me he was convinced that if the plaintiffs filed a typical opposition to certiorari, the justices would have taken the case. The class had even hired an appellate specialist to draft a standard-issue opposition brief analyzing federal circuit and Supreme Court precedent on class certification. “I felt that wasn’t going to do it,” Selbin said.

Issacharoff said that in these cases, the class should do what respondents are advised not to at the Supreme Court: argue the merits of the underlying claims. “He said in a typical case, you’re writing for the cert pool clerk, trying to uncheck the boxes that the petitioner checked,” Selbin told me. “His view was that here, we were writing directly for the justices.” Last February, the court declined to take the washer appeals.

Issacharoff, who was on jury duty in New York State Supreme Court Monday when he found out about the BP cert denial, said that the key to opposition briefs to convince the Supreme Court that a case isn’t worth their attention. That often means showing the justices that “no great injustice was done below,” Issacharoff said.

He said that he believes the U.S. justices and their clerks do read with more attention when they recognize the names on briefs for and against certiorari. But he also said that there’s a point of diminishing returns when the same lawyers and law firms make the same arguments on behalf of the usual pro-business suspects in corporate cases.

“In BP, some of the briefs seemed recycled from the washer litigation,” he said. “They’re like a Greek chorus.

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