August 21, 2017 / 6:15 PM / a year ago

U.S. Chamber is no friend of the court: TCPA plaintiffs to 11th Circuit

(Reuters) - For the second time this year, a leading plaintiffs’ firm is attempting to block a proposed amicus brief from the U.S. Chamber of Commerce by highlighting ties between the Chamber, its lawyers and the defendant in the case.

On Aug. 9, Lieff Cabraser Heimann & Bernstein filed its opposition to a proposed amicus brief by the U.S. Chamber in DirectTV’s interlocutory challenge at the 11th U.S. Circuit Court of Appeals to the certification of two Telephone Consumer Protection Act classes. Lieff’s brief argues that the Chamber, its lawyers from King & Spalding, DirectTV and Direct TV’s lawyers from Mayer Brown are bound so closely together that even under a liberal reading of the definition of an amicus curiae, the Chamber cannot legitimately be regarded as a friend of the court.

DirectTV pays dues to the Chamber, but that’s just the beginning of the story, according to Lieff Cabraser. DirectTV’s lead appellate counsel in the TCPA case at the 11th Circuit, Andrew Pincus of Mayer Brown, has represented the Chamber in at least 50 cases, the Lieff brief said, including appeals in which Pincus drafted Chamber amicus briefs supporting DirectTV. Meanwhile, the Chamber’s appellate lawyers at King & Spalding are counsel to DirectTV in a different TCPA class action in federal court in Atlanta, where the 11th Circuit case originated.

If this were a 1960s movie it would be “Bob & Carol & Ted & Alice.” But in the context of relationships between parties, lawyers and amici, Lieff Cabraser argued, it’s impermissible. “The Chamber and its counsel are not impartial ‘friends of the court,’” the brief said. “This case presents precisely the circumstances where such limits ought to apply. The Chamber is not merely a friend of the party, but essentially the party itself.”

You could easily dismiss Lieff Cabraser’s brief for asserting an overly restrictive definition of amici. No one in 2017 seriously expects impartiality from frequent amicus filers like the Chamber – or from pro-plaintiffs advocacy groups on the other side. Nor can anyone reasonably fault Mayer Brown and King & Spalding for representing both the Chamber and dues-paying members of business groups. They’re corporate law firms! That they represent both corporations and corporate advocacy groups isn’t exactly a surprise.

But I’m sensing an inchoate plaintiffs’ strategy to delegitimize the Chamber in court. Remember, Lieff Cabraser is the second prominent plaintiffs’ firm to oppose a Chamber amicus brief this year by arguing that the group is too cozy with defendants. In February, the Lanier Law Firm (with help from Kenneth Starr!) attempted to block a Chamber amicus brief backing Johnson & Johnson in a 5th Circuit appeal of a hip implant jury verdict. Like Lieff Cabraser, Lanier contended that J&J not only pays significant dues to the Chamber but also shares a lead litigator – in its case, John Beisner of Skadden Arps Slate Meagher & Flom – with the business group. ( had a terrific report Monday on all of the many ties between J&J and the Chamber, including a discussion of the Lanier brief.)

The Chamber, represented in the J&J case by Mayer Brown, said Lanier’s accusations were ridiculous. The Federal Rules of Civil Procedure do not require disclosure of every connection between a proposed amicus and a party in the case, the Chamber reply brief said, including dues and outside counsel relationships.

In fact, the Chamber argued, Lanier’s cramped view of amicus filings by advocacy groups might even be unconstitutional. The “proposed rule would effectively ban trade associations from filing amicus briefs, which in turn would impair the capacity of trade associations to exercise their First Amendment rights to speech and to petition the government,” the Chamber told the 5th Circuit.

The 5th Circuit ended up allowing the Chamber brief to be filed, in an order without additional explanation. But Lieff Cabraser must have thought there was enough merit in Lanier’s argument to exclude the Chamber to revive it in the DirectTV case at the 11th Circuit, complete with an intricate flow chart documenting ties between Mayer Brown, King & Spalding, DirectTV and the Chamber.

The Chamber has not yet responded to Lieff’s filing and a Chamber representative did not respond to my email requesting comment on Lieff’s arguments at the 11th Circuit.

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