ERISA attorney Emily Seymour Costin says the increase in amicus briefs at the District Court level reflects not just the growth of ERISA litigation but the industry’s frustration with 2022 US Supreme Court decision, Hughes et al. vs. Northwestern University et al.
Although the Supreme Court ruled 8-0 in favor of participants in two Northwestern 403(b) plans, requiring investors to monitor all investments, members of the agency, the court will provide clear guidance to the court’s judges on how to determine whether a complaint is valid. dismissed or allowed to proceed to trial.
“The Supreme Court has not given comfort” to the retirement industry, Ms. Costin, a Washington resident and ERISA litigation practice leader for the law firm Alston & Bird LLP, represents defendants in ERISA cases. “It was left to the District Courts. The lower courts were no clearer in their guidance than they had been.”
Like the trade union representatives, Ms. Costin, who declined to comment on his firm’s cases, said these amicus briefs “are a general discussion of the impact on the firm that some judges may find persuasive.”
To illustrate the rarity of amicus briefs at the District Court level, Akiva Shapiro, a litigation partner at Gibson, Dunn & Crutcher LLP in New York, and colleagues surveyed all amicus briefs in the court system and government for 2020. At the Supreme Court, 90% of the cases where oral arguments were conducted received amicus briefs. In federal appellate courts, 1% to 2% were awarded amicus briefs. At the District Court level, only 0.1% received amicus briefs. The study, which was not tied to ERISA cases, was published in the December 24, 2020, issue of the New York Law Journal.
“There’s a growing sense that you want to start and win in the District Court,” Shapiro said in an interview. “You want to build and get the right product in the beginning.”
Although lower courts in different districts are not bound by decisions in other districts, Mr. Shapiro that the District Court’s amicus brief strategy could produce results.
“On a new issue, judges will look at other districts,” he said. “Some judges like it, some don’t.”
The advice of Mr. Shapiro to brief reporters at the District Court level, to avoid repeating what the parties write in their responses to the courts, to emphasize expertise and offer discuss general issues such as economic impact, legal history.
Even if they follow his advice, it’s “common” for plaintiffs’ lawyers to ask the justices to reject the amicus brief, Mr. Shapiro.