Federal Judiciary Approves New Rules for MDL Management
America ı By Rochdi Rais
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Many of the proposed amendments would require new or different disclosure of financial links, such as whether counsel or a litigant contributed 25% or more of an amicus filer's revenue, or whether someone earmarked dollars specifically to bankroll a brief. A committee note accompanying the proposal did not mince words about the impetus.
"Earmarked contributions run the risk that the amicus is being used as a paid mouthpiece by the contributor," the note said, adding that courts have an interest in "evaluating whether an amicus is serving as a mouthpiece for a party, thereby evading limits imposed on parties in our adversary system and misleading the court about the independence of an amicus."
Other aspects of the proposal would require nongovernmental parties to obtain a judge's consent before filing a friend-of-the-court brief. That idea generated widespread criticism at Tuesday's meeting from panelists who voiced worries about harming civic participation, straining overburdened courts, and putting everyone through a pointless permission process.
"Even if [a brief] is not helpful at all, a lot of times, you just let it in, because it's a way for people to express their views to the court, which I think is a very important part of the openness of our process," U.S. Circuit Judge Patricia A. Millett of the D.C. Circuit, one of the proposal's most strident critics on Tuesday, said at the meeting.
That view was seconded by U.S. Circuit Judge William J. Kayatta Jr. of the First Circuit, who said, "I share the concerns of Judge Millett. … I don't see why we're having a requirement that people seek leave for something that's essentially going to be automatically granted all the time anyhow."
Panel member Louis A. Chaiten of Jones Day also pointed out that the U.S. Supreme Court, in a policy that took effect in 2023, eliminated the consent duty for amicus filings.
"I do think it's a little odd that this rule is going against the precedent that the Supreme Court set in their revision last year to allow amicus briefs without consent or motion," Chaiten said.
U.S. Circuit Judge Jay S. Bybee of the Ninth Circuit, who chairs the Advisory Committee on Appellate Rules, nonetheless encouraged panelists to authorize the proposal's publication, while also acknowledging that the associated public comment period is likely to be boisterous.
"It is clear that our proposal is going to generate a lot of public controversy," Judge Bybee said Tuesday. "[But] we're at that Goldilocks moment in which we have to decide whether we've gone too far, haven't gone far enough, or whether it's just right. And we think that we need to hear from the public."
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