Trial Magazine

A Robust Amicus Curiae Program

AAJ files amicus briefs in the U.S. Supreme Court, federal appellate courts, and state courts. These briefs strengthen the civil justice system, preserve the right to trial by jury, and protect access to the courts for those who have been wrongfully injured. AAJ’s in-house legal staff works with the AAJ Amicus Curiae Committee members to determine which cases to participate in. For more, go to www.justice.org/amicusbriefs.

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Recent Notable Case Outcomes

Bissonnette v. LePage Bakeries Park St., LLC, No. 23-51 (U.S. Apr. 12, 2024)
The U.S. Supreme Court unanimously expanded the “class of workers engaged in foreign interstate commerce” exempt from enforcement of employment arbitration agreements under §1 of the Federal Arbitration Act, reversing a Second Circuit decision that relied on Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2003) to hold that only those workers employed by a company in the transportation industry fell within the exemption from coverage. The opinion expands on the Court’s holdings in Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022) and New Prime Inc. v. Oliviera, 586 U.S. 105 (2019), affirming that an exempted “class of workers” is defined by the work performed, rather than the industry of the employer. AAJ filed amicus briefs in each of those three cases.

Mallory v. Norfolk Southern Railway Co., No. 21-1168 (U.S. June 27, 2023)
In a 5-4 opinion, the U.S. Supreme Court held that consent, whether by an individual or a corporation, remains a valid basis for the exercise of personal jurisdiction. The majority opinion tracked many of the arguments urged by AAJ in its amicus curiae brief. AAJ addressed whether the due process clause of the Fourteenth Amendment prohibits a state from requiring a corporation to consent to personal jurisdiction to do business in the state. Chicago attorney Ashley Keller, who argued the case before the Court on behalf of Mallory, said, “If a big corporation like Norfolk Southern consents to jurisdiction in Pennsylvania’s courts when it registers to do business, it cannot wriggle out of the bargain that it struck in the name of the Fourteenth Amendment. The Court’s decision in Mallory reaffirms Justice Holmes’s unanimous decision in Pennsylvania Fire and ultimately hews to the original public meaning of the due process clause.”

Olivieri v. Stifel, Nicolaus & Co., Inc., No. 23-658-cv (2d Cir. Aug. 12, 2024)
The Second Circuit Court of Appeals affirmed a lower court’s refusal to compel arbitration of a brokerage firm employee’s sexual harassment and discrimination claims under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). Rejecting arguments that the statute applies only to actions that “first accrue” after the effective date of March 3, 2022, the circuit court held that “accrual” has the same meaning for both the starting date of a statute and the ending under the statute of limitations. In some contexts, that date is subject to the “continuing violation doctrine.” To the extent that claims involve application of the EFAA to conduct before its enactment, the court concluded that Congress intended that retroactive application. AAJ, Public Justice, and the New York Chapter of the National Employment Lawyers Association filed an amici curiae brief in support of Ms. Olivieri, calling the Second Circuit’s attention to the common-law “continuing tort” rule that a wrongful act “accrues” with each new act of discrimination or hostile work environment.

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Four Facts

Briefs are filed on a range of issues that affect plaintiff attorneys and their clients, including forced arbitration, Section 230 immunity, class actions, personal jurisdiction, and bankruptcy abuse.

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In the last five years, AAJ has filed more than 115 amicus briefs.

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AAJ regularly collaborates with other advocacy organizations and state trial lawyer associations to jointly file amicus briefs with such groups.

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AAJ files an average of 25 amicus briefs in SCOTUS, other federal appellate courts, and state supreme courts each year.

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Protecting Plaintiffs’ Interests in the Federal Rules

The Judicial Conference of the United States is the policymaking arm of the federal courts and oversees changes to the Federal Rules of Civil Procedure (FRCP), Federal Rules of Appellate Procedure, Federal Rules of Evidence (FRE), and other rules governing court procedure. These rules are binding on parties in federal courts, and many states use the federal rules as a blueprint for their own rules.

AAJ closely monitors proposed amendments to the rules and the impact those changes would have on trial lawyers and their clients. When changes to the federal rules are advanced by defense interests, AAJ ensures that plaintiff attorneys are represented by advocating for rules that are fair and balanced. AAJ also works with plaintiff attorney members to identify rules that should be amended to better promote justice, ensure fairness, and improve efficiency.

AAJ and its members engaged and commented on several recent rules changes, including a new FRCP 16.1 on multidistrict litigation, modifications to the rules related to privilege logs, and the development of the new FRE 107 on illustrative aids that went into effect this month. Other areas where AAJ is tracking potential rules changes include prior inconsistent statements, cross-border discovery, and artificial intelligence, among others. For more, go to www.justice.org/federalrules.