Proposed Amicus Brief Rule Change Has No Friends

Allowing courts to strike amicus briefs if they would result in a judge’s recusal appears to be the most controversial appellate item in the latest rule change proposal for federal courts.

The U.S. Supreme Court submitted amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure to Congress on April 26.

Overall, there were changes to nine appellate procedure rules, Jaime Santos, an attorney with Goodwin Procter’s appellate practice group in Washington, told Bloomberg Law.

Similar to last year, the latest amendments overall reflect the judiciary’s march into the electronic age. They will take effect Dec. 1 unless lawmakers change them.

Rule Unfair?

The Rule 29 change on amicus briefs, or those submitted by non-litigants in a case, garnered no support in comments filed before the proposal was submitted to lawmakers, Santos said.

The Advisory Committee on Rules of Appellate Procedure proposed the change because several circuits had imposed it, and the need for consistency outweighed the concern, Santos said.

But it does seem unfair to litigants who’ve taken the time and money to write the brief to have it struck, she said.

There are three proposals that practitioners will find “most pleasing,” Santos said.

Rules 28.1 and 31 allow 21 days instead of 14 days to file a reply brief.

It’s really “quite right” because 14 days isn’t enough time to prepare an adequate reply, Santos said.

Hopefully the new rule will result in fewer requests for extensions, because 21 days is a “pretty reasonable” amount of time, she said.

Similar to civil rule 5, Appellate Rule 25 requires all filings for represented parties be done electronically, Santos said.

This will improve efficiency, result in cost savings, and might make things more publicly accessible, she said.

One notable aspect to the rule is that the committee didn’t allow unrepresented parties file electronically, Santos said. They have to get a court order to e-file.

Santos thinks there will be “some disappointment” with this decision.

Other changes to the rules are meant to have them conform with the civil rules on bonds, e-service, and e-filing, Santos said.

Class Action Rule

There are four proposed rule amendments to the civil rules but the most important are those to Rule 23, Class Actions, professor A. Benjamin Spencer of the University of Virginia School of Law told Bloomberg Law.

Spencer teaches civil procedure and is a member of the Advisory Committee on Civil Rules.

One of the most significant changes would require any side payments to class settlement objectors to be approved by the district court. This is an effort to curb the power objectors hold over the class settlement process.

Another proposal codifies the criteria judges should consider when approving class settlements.

The final Rule 23 proposal has to with front-loading scrutiny of class-action settlements.

For the first time, the rule will include a list of criteria for settlement approval. Many courts have their own, but this change will create uniformity across courts, Spencer said.

The idea is to give judges all the information they need to approve a settlement at the preliminary approval stage. That could include the take rate among class members and how much class counsel will seek in fees.

The Rule 23 amendments also recognize the realities of the 21st Century by allowing the use of email to reach class members.

The changes to Rule 5 also recognize e-communication. They mandate e-filing for all litigants with counsel, with a carve out for litigants representing themselves, Spencer said.

Rule 62 prohibits parties from enforcing a judgment for 30 days, he said. Parties had to wait 14 days under the old rule but this was inconsistent with the 28-day allowance for post-trial motions because a judgment could be enforced while there was “a possibility that a post-trial motion would undo the result.” The new rule “closes this gap,” he said.

The rule also broadens the type of security available for parties to use to get a stay. They can use a bond or “other security,” when it used to be a bond or “supersedeas bond,” which is “archaic,” Spencer said.

There are also proposed changes to federal bankruptcy and criminal procedurerules.

—With assistance from Perry Cooper

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com