Amicus Curiae Brief — Syngenta Crop Protection, Inc. v. Henson

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Supreme Court, U.S,

7 FILED

No. 01-757 ay =

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

SYNGENTA CROP PROTECTION, INC.,

ROBERT BABB, EDEE TEMPLET,

and KENNETH A. DEVUN,

Petitioners,

HURLEY HENSON,

Respondent.

On Wait oF CERTIORARI TO THE

UnNitep STATES CouRT OF APPEALS

FOR THE ELEVENTH CIRCUIT

—_——_ ——_

———

BRIEF OF AMICUS CURIAE PRODUCT LIABILITY

ADVISORY COUNCIL, INC.

IN SUPPORT OF PETITIONERS

ass

HuGH YOUNG Rosert N. WEINER

JONATHAN HARRISON Counsel of Record

Propuct LIABILITY DANIEL S. PARISER

Apvisory Council, INc. JONATHAN P. Hooks

Suite 510 ARNOLD & PorTER

1850 Centennial Park Drive 555 Twelfth Street, N.W.

Reston, Virginia 22091 Washington, D.C. 20004

(202) 942-5000

Attorneys for Amicus Curiae

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COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

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—_—_— . —

TABLE OF CONTENTS

Table Of Cited Authorities .......ccccccccceces

Interest Of Amicus Curiae ......cccccccccceces

Summary Of Argument ........cccccsccccccces

DED ttcccsduneakecsdsnenecesenaedees

A. The Torrent of Individual Cases ..........

B. The Spread of Duplicative Class Actions ..

C. Class Settlements and Widespread Efforts to

ED HD oduccecéesnsedeesseewnnese

ROE «6 vdncncdcsucndsesdstevessasesesees

I. TheAll Writs Act Confers Removal Authority

Based On Continuing Jurisdiction To Enforce

A Prior Federal Court Judgment. .........

Il. Removal Is An Appropriate Exercise Of

Authority Under The All Writs Act To

Effectuate The District Court’s Prior

PUES Vivanco sncesnceaehestncsnens

A. The All Writs Act Supplements Section

DEED scucccresivsecddéuesevavevias

Contents

B. Removal Intrudes Less on the

Prerogatives of the State Court than an

Injunction and Should Be an Available

DP CUI Se bSadkeencesbesovees

Te necue

Appendix — Corporate Members Of Product

Liability Advisory Council, Inc...............

Page

TABLE OF CITED AUTHORITIES

Page

Cases:

Adams v. United States ex rel. McCann, 317 US.

tt Kihe serge seeseceseececsevendes 28

Amchem Prods., Inc. v. Windsor, 521 U.S. 591

Ds Mctéeubusesedueesecesses 3, 4, 8, 11, 12, 25

Bd. of County Comm'rs of Labette Co., Kan. v.

United States ex rel. Moulton, 112 U.S. 217

A re 17

Bylinski v. City of Allen Park, 169 F.3d 1001

SE Cy 605000seceucevssivesecsesees 10

Carlough v. Amchem Prods., Inc., 10 F.3d 189

ED 60606000560000eeeeennceeuces 10

Chick Kam Choo v. Exxon Corp., 486 U.S. 140

SE dihbnd isn 066een Ke bewseseesdenedeete 24

Clinton v. Goldsmith, 526 U.S. 529 (1999) ....... 17, 18

Dornberger v. Metro. Life Ins. Co., 203 F.R.D. 118

v6 nceed Coetsenketesouseades 10

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473

DE cbakidcecdsbsesdccaneaventuenannens 20

FTC v. Dean Foods Co., 384 U.S. 597 (1966) ....20,21

Georgine v. Amchem Prods., Inc., No. Civ. A.

93-0215, 1995 WL 561297 (E.D. Pa. Sept. 18,

Di. atcadeaceshhtaenbenuaceuans uaeunie 10, 11, 26

Cited Authorities

Page

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir.

SEED dvvcnunedndsensaciasbhaceasensesans 10

Helvering v. Hallock, 309 U.S. 106 (1940) ....... 21

Henson v. Ciba-Geigy Corp., 261 F.3d 1065

Sa ED vccocasecesnaness 13, 14, 16, 19, 23

Hillman v. Webley, 115 F.3d 1461 (10th Cir. 1997) .. = 10

Hills & Co. v. Hoover, 220 U.S. 329 (1911) ...... 22

Holland v. New Jersey Dept. of Corr., Civ. A. Nos.

93-1683, 94-2391, 94-3087, 1994 WL 507801

Ss C Ob SED cucvcncctoucsessceususn: 10

In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425

SP GEE. ceeeseucesssustctesveenseden< 9

In re Am. Honda Motor Co., Dealerships Relations

Litig., 162 F. Supp. 2d 387 (D. Md. 2001) ..... 10

In re Baldwin-United Corp., 770 F.2d 328 (2d Cir.

EEE onsasusbennbnsecuesdeuaecunsunesens 10, 24

In re BankAmerica Corp. Sec. Litig., 95 F. Supp. 2d

1044 (E.D. Mo. 2000), aff'd, 263 F.3d 795

SE AE 4 enecdnceececusenesetdeasens 10

In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir.

2001), cert. denied, 122 S. Ct. 1300 (2002) .... 8

In re Claasen, 140 U.S. 200 (1891) ............. 22

Cited Authorities

Page

In re Corrugated Container Antitrust Litig., 659 F.2d

SEED GOED ccd ceccdkccessocussesdes 24

In re Diet Drugs, 2000 WL 1222042 (E.D. Pa. Aug.

8 ee 4, 5, 6, 9, 10, 11, 12, 26

In re First Commodity Corp. of Boston, Customer

Accounts Litig., 89 B.R. 283 (D. Mass. 1988)

patdensatedwneeusesisdéunncsetennsceeeses 10

In re Joint E. & S. Dists. Asbestos Litig., 120 B.R.

648 (E.D.N.Y. and S.D.N.Y. 1990) ........... 10

In re Joint E. & S. Dists. Asbestos Litig., 134 F.R.D.

32 (E.D.N.Y. and S.D.N.Y. 1990) ............ 10

In re Lease Oil Antitrust Litig. (No. Il), 48 F. Supp.

PE Gy SED wovusedcbveseasseace 10

In re Painewebber Lid. P ships Litig., No. 94 Civ.

8547 SHS, 1996 WL 374162 (S.D.N.Y. July 1,

SEE Ghecneuncevnerabescusousisevessones< 10

In re Prudential Ins. Co. of Am. Sales Practice Litig.,

261 F.3d 355 (3d Cir. 2001) ....... 11, 24, 26, 27, 28

In re Prudential Ins. Co. of Am. Sales Practices

Litig., No. MDL 1061, Civ. A. 95-4704, 1999 WL

496491 (D.N.J. May 6, 1999) .............4.6. 10

In re School Asbestos Litig., No. 83-0268, 1991 WL

61156 (E.D. Pa. Apr. 16, 1991), aff'd, 950 F.2d

PL CHEE 6 Vi nédeecascsencstcvounce 10

Cited Authorities

Page

In re Synthroid Mktg. Litig., 197 F.R.D. 607 (N.D.

DE xpiuddddncoesdesdbhedednadeceses 10

In re Texas, 110 F. Supp. 2d 514 (E.D. Tex. 2000)... —:10

In re VMS Secs. Litig., 103 F.3d 1317 (7th Cir.

DEE Sesededssdsacdacesserekessscasseens 9, 24

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

DOD a.6 dun ndaudhtddduddedududetwenss 2,15

La Buy v. Howes Leather Co., 352 U.S. 249 (1957)

cdiubebedeneieeencéuneeussabeeseceawedas 20

Marshall v. Am. Gen. Life & Accident Ins. Co.,

174 F. Supp. 2d 709 (M.D. Tenn. 2001) ....... 10

McClellan v. Carland, 217 U.S. 268 (1910) ...... 21

Mclntire v. Wood, 11 U.S. (7 Cranch) 504 (1813) .. 17.

Montgomery v. Aetna Plywood, Inc., 231 F.3d 399

(7th Cir. 2000), cert. denied, 522 U.S. 1038

DE nes 6UsbGbbebeeneeoUNeeidbecnesosens 10, 14

Mycka v. Celotex Corp., No. Civ. A. 87-2633, 1988

WL 80042 (D.D.C. July 18, 1988) ............ 10

NAACP v. Metro. Council, 144 F.3d 1168 (8th Cir.

SE Cecctedcensededenidesoodetsenenedes 10

Pauley v. Bethenergy Mines, Inc., 501 U.S. 680

Ps shdb0 du dedeusetédesewsdasdeaueies 19

vil

Cited Authorities

Page

Peacock v. Thomas, 516 U.S. 349 (1996) ...... 2, 15, 16

Pennsylvania Bureau of Corr. v. United States

Marshals Serv., 474 U.S. 34 (1985) ...... 2, 18, 22, 23

River v. Regions Bank of Louisiana, 522 U.S. 470

SD sctvceksekdd keeensnsdeeeionanecases 16,17

Scardelletti v. Debarr, 265 F.3d 195 (4th Cir. 2001),

cert. granted, 122 S. Ct. 663 (2001) .......... 10

Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir.

DD éededecsduedeecsndedtbasadsscnesenes 10

Texas v. Real Parties in Interest, 259 F.3d 387

SE SED cee Kk cdceeseseescecceesssosess 19

United States v. Morgan, 346 U.S. 502 (1954) .... 21

United States v. New York Tel. Co., 434 U.S. 159

DOU ccsecececesceuseeessadase 13, 17, 18, 22, 23

Wayman vy. Southard, 23 U.S. 1 (1825) .......... 15, 22

White v. Nat'l Football League, 41 F.3d 402 (8th Cir.

1994), abrogated on other grounds, Amchem

Prods.. Inc. v. Windsor, 521 U.S. 591 (1997)

bbb UUE aedbenweneseuesée bus eederoussaces 10

Yonkers Racing Corp. v. City of Yonkers, 858 F.2d

E DEED bo ebccdccedeseseducsénces 14, 25

Younger v. Harris, 401 U.S. 37 (1971) .......... 25

vill

Cited Authorities

Statutes:

QB U.S.C. § 1291 0... cece cece eee e eee eeeees

28 U.S.C. § 1292 .... cece cece renee e eee eeeees

28 U.S.C. § 1331 2... cece cee eee eee e er eeeeeee

28 U.S.C. § 1404(a) .. 0... cece eee eens

28 U.S.C. § 1407 2... cece cee eee eens

2B U.S.C. § 1441 oc cece cere eee eee nees

28 U.S.C. § 1441(a) 2... . cee cece eens

28 U.S.C. § 1447(b) .. 6c cece eee eee eee eens

28 U.S.C. § 1651 1... cece cece cece e eee e eens

28 U.S.C. § 1651(a) .. 06. e eee eee eee eee l,

28 U.S.C. § 2241 1... cece cece eee eer eeeeees

28 U.S.C. § 2255 1... cece cece renee eee eeeees

28 U.S.C. § 2283 ..... cece eee c eee e eee e ee eeees

26 Stat. at L.826, chap. 517 ....--- eee ee eeeeees

Rule:

Fed. R. Civ. P. 8(f) .. 0... cece eee ee eee rere nees

Page

6, 27

> _ebeeih on”

Cited Authorities

Other Authorities:

Alejandro Bodipo-Memba, Judge OKs Class Action

in Tire Case; Ford, Firestone Plan to Appeal,

Detroit Free Press, Nov. 29, 2001 ......--++>:

Class Action Fairness Act of 2001; Hearing on H.R.

2341 Before the House Committee on the

Judiciary, 107th Cong., 2d Sess. eee

John C. Coffee, Jr., Class Action Accountability:

Reconciling Exit, Voice, and Loyalty in

Representative Litigation, 100 Colum. L. Rev. 370

02 |)

John H. Beisner & Jessica Davison Miller, They re

Making a Federal Case Out of It... in State

Court, 25 Harv. J.L. & Pub. Pol’y 143 (2002) ..

~ Firestone Settles 40 Percent of Suits, AP Online,

July 23, 2001, available at 2001 WL 25486106

Lisa Girion et al., Pfizer Agrees to Settle Suit Over

Diabetes Drug Rezulin, L.A. Times, Dec. 22,

— Pe rrrrrrrrrrrr ry rT irr irr

Lonny Sheinkopf Hoffman, Removal Jurisdiction

and the All Writs Act, 148 U. Pa. L. Rev. 401

12)

H.R. Rep. No. 107-370 (2002) ..-...--eeesreee:

Page

5,7

Cited Authorities

Page

Judiciary Act of 1789, ch. 20, § 12, 1 Stat. 73

DG De fa oie ee ieee eee ae 25

Manual for Complex Litigation (Third) § 41.44

SE Goa venw essere enensesd cee seneaknes 9

Mass Torts and Class Action Lawsuits: Hearing

before the Subcomm. on Courts and Intellectual

Property of the Comm. on the Judiciary, 105th

Cn Be es PP CEUOED 6 oe rhb ss wcnvesevees 5,6

Francis E. McGovern, Class Actions and Social Issue

Torts in the Gulf South, 74 Tulane L. Rev 1655

DE 63554000 t ad eae eedied ooketeaeenbue 12

Richard A. Nagareda, Autonomy, Peace, and Put

Options in the Mass Tort Class Action, 115 Harv.

i PED 466k aN bseennecesdeusenes 12, 26

Richard A. Posner, Statutory Interpretation — In the

Classroom and in the Courtroom, 50 U. Chi. L.

ol ce a Fr ede 19

Press Release, Stanford Law School Securities Class

Action Clearinghouse, Federal Securities Class

Action Cases Filed and Defendant Market Cap

Losses Surge in 2001 (Mar. 15, 2002), available

at http:/securities.stanford.edu/scac_press/

OOD, GA RU ci cctcccccsccecess 7

Cited Authorities

Stanford Law School Securities Class Action

Clearinghouse, Post-Reform Act Securities Case

Settlements: Securities Fraud “Mega-

Settlements” List, available at http://

securities.stanford.edu/Settlements/largest__

i Sn SD os cvecscudsesseuvens

Joan Steinman, The Newest Frontier of Judicial

Activism: Removal Under the All Writs Act,

es Mev SEG PUUPGED wea cccecvcecesens

Cass R. Sunstein, Law and Administration After

Chevron, 90 Colum. L. Rev. 2071 (1990) ......

Thomas E. Wiliging et al., /ndividual Characteristics

of Mass Torts Case Congregations: A Report to

the Mass Torts Working Group (Federal Judicial

CES ea cedawskcesaadeeeereseeeeees

5 Charles Alan Wright, Arthur R. Miller & Edward

H. Cooper, Fed. Prac. & Proc. § 1286 (3d ed

1998) (hereinafter “Wright & Miller”) ........

13 Wright & Miller § 3521 2.0... ccc ccc e cc ceees

14C Wright & Miller § 3729 ..............0..-

16 Wright & Miller § 3934.1 ............00005.

Page

INTEREST OF AMICUS CURIAE

The Product Liability Advisory Council, Inc. (“PLAC”)

is a non-profit association with 122 corporate members

representing a broad cross-section of American and

international product manufacturers. These companies seek

to contribute to the improvement and reform of law in the

United States and elsewhere, with emphasis on the law

governing the liability of manufacturers of products. PLAC’s

perspective is derived from the experiences of a corporate

membership that spans a diverse group of industries in

various facets of the manufacturing sector. In addition, several

hundred of the leading product liability defense attorneys in

the country are sustaining (non-voting) members of PLAC.

Since 1983, PLAC has filed over 525 briefs as amicus

curiae in both state and federal courts, including this Court,

presenting the broad perspective of product manufacturers

seeking fairness and balance in the application and

development of the law as it affects product liability. A list

of PLAC’s corporate members is attached as Appendix A.'

SUMMARY OF ARGUMENT

The Court of Appeals’ formulation of the issue here —

whether the All Writs Act provides an “independent” basis

for federal jurisdiction — is imprecise. The Act authorizes

issuance of writs “in aid of” a federal court’s retained

jurisdiction over a prior judgment. 28 U.S.C. § 1651(a).

_ Federal courts have ancillary jurisdiction to enforce and

1. Counsel for a party did not author this brief in whole or in

part and no person or entity, other than the amicus curiae, its

members, or its counsel, have made a monetary contribution to the

preparation or submission of the brief. Pursuant te Rule 37 of the

Rules of the Supreme Court of the United States, the parties have

consented to the filing of this brief. Copies of those consents have

been filed with the Clerk of the Court.

protect such prior judgments. Within that authority, the All

Writs Act provides the statutory or procedural mechanism

by which the courts act.

This Court has approved the exercise of ancillary

enforcement jurisdiction “to enable a court to function

successfully, that is, to manage its proceedings, vindicate its

authority, and effectuate its decrees.” Kokkonen v. Guardian

Life Ins. Co., 511 U.S. 375, 379-80 (1994). To that end, it

has “approved the exercise of ancillary jurisdiction over a

broad range of supplementary proceedings ... to assist

in the protection and enforcement of federal judgments.”

Peacock v. Thomas, 516 U.S. 349, 356 (1996).

The All Writs Act authorizes removal of a case that falls

within the ancillary enforcement jurisdiction of the federal

courts. The Court of Appeals suggested that, in enacting other

more specific removal provisions, Congress intended to

exclude removal from the writs authorized by the All Writs

Act. That argument contrives an intent Congress did not

express. Nothing in the removal statutes or their legislative

history suggests any inclination to limit the remedies

available under the All Writs Act. Indeed, Congress seems

to have enacted the All Writs Act precisely to provide the

federal courts with the flexibility and authority necessary to

protect their jurisdiction through procedural mechanisms

such as removal. After all, this Court has repeatedly construed

the All Writs Act to fill “the interstices of federal judicial

power when those gaps threatened to thwart the otherwise

proper exercise of federal courts’ jurisdiction.” Pennsylvania

Bureau of Corr. v. United States Marshals Serv., 474 U.S.

34, 41 (1985).

Nor is the existence of a similar remedy under the

All Writs Act, injunctive relief, a reason to preclude use of

the Act to remove a case under appropriate circumstances.

In suggesting that the availability of injunctive relief under

the Act rendered removal unnecessary, the Court of Appeals

confused the threshold for invoking the All Writs Act with

the standard for determining what type of relief under the

Act is proper. A federal court should have discretion to choose

the remedy most appropriate to the particular case before it.

If anything, removal — as a well-accepted and even routine

practice — in many circumstances does less to undermine

the prerogatives of state courts ar 1 more to foster comity

than enjoining a pending state proceeding.

Indeed, this may be increasingly so after the decision in

Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997). Parties

seeking to comply with that decision are fashioning

settlements that permit class members to opt out in the future

as to certain claims and under specified conditions. Federal

courts called upon to enforce the settlements, if limited to

injunctive relief, will have to impinge significantly on state

court proceedings, dismissing some claims, modifying others,

barring certain arguments, and even regulating discovery.

Removal avoids those potential intrusions. The federal courts

should not be denied this valuable procedural tool under the

All Writs Act.

BACKGROUND

This case exemplifies a significant practical problem

confronting the federal courts: how a federal court can protect

and effectuate a class action settlement over which it has

retained jurisdiction in the face of efforts by litigants to evade

that settlement.

Recent years have witnessed a deluge of mass tort claims,

as well as financial and consumer fraud litigation, including

not only individual actions, but also proliferating and

duplicative class actions. Class actions in general may offer

potential efficiencies, but they alsa harbor significant

difficulties. They not only magnify the risks for defendants,

but also replicate those dangers again and again in copycat

actions filed around the nation. Defendants overwhelmed by

this assault have often sought to achieve some respite — to

buy peace — by negotiating global class action settlements

in federal court, at least within the limits allowed by this

Court in Amchem. But just as water inevitably seeks an outlet,

the impulse to litigate seeks a loophole, spawning efforts to

evade the lawful orders of federal district courts which bar

further litigation of settled claims. This case and many like

it involve nothing more than efforts to enforce those orders,

and implicate nothing less than the continued integrity of

the judicial function.

A. The Torrent of Individual Cases

In Amchem, this Court recognized the magnitude of the

problem presented by asbestos — hundreds of thousands of

lawsuits, long delays, repetitive litigation of the same issues,

immense transaction costs, and ultimately the threat of

exhaustion of the defendants’ assets. See id. at 598; id. at 632

(Breyer, J., concurring in part and dissenting in part). But that

was just for one product. A multitude of individual cases

involving other products also have clogged the courts —

including well over 18,000 claims involving diet drugs; more

than 3000 cases involving computer keyboards; 4500 individual

lawsuits involving the diabetes drug Rezulin; more than 500

personal injury cases involving automobile tires; over 4000 cases

involving the contraceptive Norplant; more than 4000 cases

involving bone screws used for spinal support after surgery;

and over 27,000 cases in federal court plus thousands more in

state court (1800 in California alone) involving breast implants.”

2. See In re Diet Drugs (Phentermine/Fenfluramine/

Dexfenfluramine) Prods. Liab. Litig., MDL No. 1203, Civ. No. 99-

(Cont'd)

Judge Anthony Scirica of the U.S. Court of Appeals for

the Third Circuit, chair of the Judicial Conference Committee

on Rules of Practice and Procedure, noted these disquieting

forces in testimony before Congress:

The literature is full of articles documenting the

steady upward trend in mass tort filings. Toxic torts,

imperfect drugs, defective products, faulty medical

devices, and other products of modern technology

all have been held accountable for causing harm to

large numbers of people. Consumer fraud, in the

nature of deceptive practices, is also part of the mass

torts landscape. It is apparent that the future will

generate still more mass torts litigation.

Mass Torts and Class Action Lawsuits: Hearing before the

Subcomm. on Courts and Intellectual Property of the House

Comm. on the Judiciary, 105th Cong., 2d Sess. 19 (1998)

(statement of Anthony Scirica, U.S. Circuit Judge, U.S. Court

of Appeals for the Third Circuit).

Many thousands of these individual cases, not brought

as class actions, have proceeded in state courts, as plaintiffs

have joined non-diverse defendants — often improperly —

to avoid federal jurisdiction. Because it is impossible in state

(Cont'd)

20593, 2000 WL 1222042, at *3 (E.D. Pa. Aug. 28, 2000) (diet drugs);

Thomas E. Willging et al., Jndividual Characteristics of Mass Torts

Case Congregations: A Report to the Mass Torts Working Group

(Federal Judicial Center 1999), at 21-23 (keyboards), 42-45

(Norplant), 45-47 (bone screws), 53-55 (breast implants), Alejandro

Bodipo-Memba, Judge OKs Class Action in Tire Case; Ford,

Firestone Plan to Appeal, Detroit Free Press, Nov. 29, 2001, at 1D

(tires); Firestone Settles 40 Percent of Suits, AP Online, July 23,

2001, available at 2001 WL 25486106 (same); Lisa Girion et al.,

Pfizer Agrees to Settle Suit Over Diabetes Drug Rezulin, L.A. Times,

Dec. 22, 2001, at Al (Rezulin).

court to consolidate all claims nationwide, as the multi-

district litigation statute allows in federal court, 28 U.S.C.

§ 1407, defendants must litigate those individual cases

“banana by banana,” or at least “bunch by bunch,” in each

state. The burdens on the parties, as well as the courts, are

potentially ruinous.

B. The Spread of Duplicative Class Actions

Compounding the difficulties posed by the proliferation

of individual lawsuits across the country has been the surge

of class action filings. A recent study by the RAND Institute

for Civil Justice documented a doubling or tripling of putative

class actions, concentrated in state courts. See H.R. Rep. No.

107-370, at 12 (2002) (citing Class Action Fairness Act of

2001: Hearing on H.R. 2341 Before the House Committee

on the Judiciary, 107th Cong., 2d Sess. (2002) (statement of

John Beisner)). Another survey showed that class actions filed

in federal court had increased 340 percent over the past

decade, while those filed in state court had increased 1315

percent. See H.R. Rep. No. 107-370, at 12. The General

Counsel of Ford Motor Company recently attested to over

100 class action lawsuits pending as of 1997, up from 50 in

1995, against that company alone. See Mass Torts and Class

Action Lawsuits: Hearing before the Subcomm. on Courts

and Intellectual Property of the Comm. on the Judiciary,

105th Cong., 2d Sess. 96-97 (1998) (statement of John W.

Martin, Jr., Vice President and General Counsel, Ford Motor

Co.). Similarly, over 100 class actions were instituted against

American Home Products Corporation following withdrawal

of its diet medications Pondimin and Redux from the market

in 1997. See In re Diet Drugs (Phentermine/F enfluramine/

Dexfenfluramine) Prods. Liab. Litig., MDL No. 1203, Civ.

No. 99-20593, 2000 WL 1222042, at *3 (E.D. Pa. Aug. 28,

2000). There are 105 class actions involving the diabetes

drug Rezulin and over 100 involving automobile tires.

See Lisa Girion et al., Pfizer Agrees to Settle Suit Over

Diabetes Drug Rezulin, L.A. Times, Dec. 22, 2001, at Al;

Firestone Settles 40 Percent of Suits, AP Online, July 23,

2001, available at 2001 WL 25486106. A few state trial courts

have become magnets for many of these interstate class

actions. Indeed, one county judge certified 35 classes from

1996 to 1998, compared to 35 for 1997 in the entire federal

court system. See H.R. Rep. No. 107-370, at 18. Even outside

of the mass tort arena, the numbers of class action filings

have increased dramatically in recent years. See Press

Release, Stanford Law School Securities Class Action

Clearinghouse, Federaj Securities Class Action Cases Filed

and Defendant Market Cap Losses Surge in 200] (Mar. 15,

2002), available at http://securities.stanford.edu/scac_press/

20020315 CR SCAC.pdf (announcing that 327 federal class

action lawsuits were filed in 2001 — a 60 percent increase

from the previous year).

This multiplicity of class actions has strained the judicial

system, and burdened litigants. A recent report to the Judicial

Conference Advisory Committee on Civil Rules worried that,

“{a]s a result of competition among class action attorneys,

defendants may find themselves litigating in multiple

jurisdictions and venues concurrently, which drives

transaction costs upward.” Memorandum from Judge Lee

Rosenthal, Prof. H. Cooper, Prof. Richard Marcus, to

Advisory Comm. on Civil Rules (Apr. 10, 2001) (quoted in

John H. Beisner & Jessica Davidson Miller, They ‘re Making

a Federal Case Out of It . . . in State Court, 25 Harv. J.L. &

Pub. Pol’y 143, 145 (2002)). Along the same lines, a

Congressional report appraised the casualties that result from

this cross-fire:

In the Federal court system, class actions asserting

the same claims on behalf of the same or

overlapping classes may be transferred to one

district for coordinated or consolidated pretrial

proceedings. When these class actions are pending

in State courts, however, there is no corresponding

mechanism for cogently adjudicating the

competing suits.

H.R. Rep. No. 107-370, at 10.

C. Class Settlements and Widespread Efforts to Evade

Them

It may be, as this Court noted in Amchem, that a

legislative remedy is the best solution to the proliferation of

multiple repetitive litigation. Yet absent legislative action,

which has been under discussion for many years, federal

judges still must adjudicate cases before them using the

legitimate tools at their disposal. In practice, a partial solution

to the pandemonium of this mass litigation does lie within

the authority of the federal courts, and litigants have in fact

pursued it. Consistent with the limits set by Amchem, they

have reached global settlements of federal class actions that

Tesolve many, potentially thousands, of the cases in federal

and state court, including the numerous copycat class actions.

As of January 1999, there were class settlements affecting

all or part of 10 mass tort litigations, and two more awaited

judicial approval. See Thomas E. Willging et al., Individual

Characteristics of Mass Torts Case Congregations: A Report

to the Mass Torts Working Group (Federal Judicial Center

1999), at 9. In the securities fraud context, there have been

12 class settlements since 1995 that have been valued at more

than 100 million dollars each, including a settlement of over

3.2 billion dollars in the Cendant litigation. See In re Cendant

Corp. Litig., 264 F.3d 201, 217 (3d Cir. 2001), cert. denied,

122 S. Ct. 1300 (2002); Stanford Law School Securities Class

Action Clearinghouse, Post-Reform Act Securities Case

Settlements: Securities Fraud “Mega-Settlements” List,

available at http://securities.stanford.edu/Settlements/

largest post__reform__act.html. As part of such

settlements, the federal district courts typically retain

jurisdiction to enforce their terms, including provisions

barring other suits. See Jn re Diet Drugs, 2000 WL 1222042,

at *72 (retaining jurisdiction over nationwide diet drug

settlement); see also Manual for Complex Litigation (Third)

§ 41.44 (1995) (form of order approving settlement and

containing reservation of jurisdiction). Unfortunately, many

litigants, urfwilling to accept the finality of federal court

judgments in the face of opportunities to submerge their

claims with thousands of others, have sought to evade the

orders of those courts and to pursue the cases that federal

courts have resolved.

The prevalence of these efforts is evident from the very

line of cases that this Court granted certiorari to review. In

In re Agent Orange Product Liability Litigation, 996 F.2d

1425, 1429 (2d Cir. 1993), for example, the court had

previously approved a 180 million dollar settlement of claims

involving the use of Agent Orange during the Vietnam War.

As part of the prior settlement, the district court barred class

members from instituting actions based on exposure to Agent

Orange, and retained jurisdiction to administer the settlement.

See id. Five years later, plaintiffs brought two class action

suits in Texas state court asserting claims identical to those

extinguished by the prior settlement. See id. at 1430.

Similarly, in Jn re VMS Securities Litigation, 103 F.3d 1317,

1319-20 (7th Cir. 1996), class members who had not opted

out of a class action settlement under the federal securities

law subsequently brought a class action in California state

court alleging that the defendant had fraudulently induced

them to settle. There, too, the district court had enjoined

further litigation and had retained jurisdiction to enforce its

orders. See id. at 1320. In both these cases, courts approved

removal under the All Writs Act to deal with the violations

of the court orders. In scores of other reported cases, whether

or not they approve invocation of the All Writs Act, courts

have confronted similar efforts to evade prior orders entered

in settlement of class action litigation.’

3. See In re Diet Drugs, 282 F.3d 220 (3d Cir. 2002); Stephenson

v. Dow Chem. Co., 273 F.3d 249 (2d Cir. 2001); Scardelletti v. Debarr,

265 F.3d 195 (4th Cir. 2001), cert. granted, 122 S. Ct. 663 (2001);

Montgomery v. Aetna Plywood, Inc., 231 F.3d 399 (7th Cir. 2000),

cert. denied, 522 U.S. 1038 (2001); Bylinski v. City of Allen Park,

169 F.3d 1001 (6th Cir. 1999); Hanlon v. Chrysler Corp., 150 F.3d

1011 (9th Cir. 1998); NAACP v. Metro. Council, 144 F.3d 1168

(8th Cir. 1998); Hillman v. Webley, 115 F.3d 1461 (10th Cir. 1997);

White v. Nat'l Football League, 41 F.3d 402 (8th Cir. 1994),

abrogated on other grounds, Amchem #rods., Inc. v. Windsor, 521

U.S. 591 (1997); Carlough v. Amchem Prods., Inc., 10 F.3d 189 (3d

Cir. 1993); Jn re Baldwin-United Corp., 770 F.2d 328 (2d Cir. 1985);

Marshai! v. Am. Gen. Life & Accident Ins. Co., 174 F. Supp. 2d 709

(M.D. Tenn. 2001); Dormberger v. Metro. Life Ins. Co., 203 F.R.D.

118 (S D.N.Y. 2001); /n re am. Honda Motor Co., Dealerships

Relations Litig., 162 F. Supp. 2d 387 (D. Md. 2001); Jn re Texas,

110 ¢. Supp. 2d 514 (E.D. Tex. 2000); Jn re BankAmerica Corp. Sec.

Litig., 95 F. Supp. 2d 1044 (E.D. Mo. 2000), aff'd, 263 F.3d 795

(8th Cir. 2001); Jn re Synthroid Mktg. Litig., 197 F.R.D. 607 (N.D.

Ill. 2000); Jn re Prudential !ns. Co. of Am. Sales Practices Litig.,

No. MDL 1061, Civ. A. 95-4704, 1999 WL 496491 (D.N.J. May 6,

1999); In re Lease Oil Antitrust Litig. (No. Il), 48 F. Supp. 2d 699

(S.D. Tex. 1998); Jn re Painewebber Lid. P ships Litig., No. 94 Civ.

8547 SHS, 1996 WL 374162 (S.D.N.Y. July 1, 1996); Georgine v.

Amchem Prods., Inc., No. Civ. A. 93-0215, 1995 WL 561297 (E.D.

Pa. Sept. 18, 1995); Holland v. New Jersey Dept. of Corr., Civ. A.

Nos. 93-1683, 94-2391, 94-3087, 1994 WL 507801 (D.N.J. Sept.

14, 1994); In re School Asbestos Litig., No. 83-0268, 1991 WL 61156

(E.D. Pa. Apr. 16, 1991), aff'd, 950 F.2d 723 (3d Cir. 1991); Jn re

Joint E. & S. Dists. Asbestos Litig., 134 F.R.D. 32 (E.D.N.Y. and

S.D.N.Y. 1990); Jn re Joint E. & S. Dists. Asbestos Litig., 120 B.R.

648 (E.D.N.Y. and S.D.N.Y. 1990); Mycka v. Celotex Corp., No.

Civ. A. 87-2633, 1988 WL 80042 (D.D.C. July 18, 1988); Jn re First

Commodity Corp. of Boston, Customer Accounts Litig., 89 B.R. 283

(D. Mass. 1988).

Such efforts persist. See, e.g., Jn re Prudential Ins. Co.

of Am. Sales Practice Litig., 261 F.3d 355, 363 (3d Cir. 2001).

And they are likely to increase further as litigants craft

settlements consistent with the dictates of Amchem. As noted,

the court in that case expressed concern that a class action

settlement could bind claimants who might not “even know

of their exposure, or realize the extent of the harm they may

incur” and who consequently might “not have the information

or foresight needed to decide, intelligently, whether to stay

in or opt out.” Amchem, 521 U.S. at 628. To ameliorate this

problem, litigants have negotiated, and courts have approved,

so called “back-end” opt-out rights in connection with class

action settlements, enabling claimants to exit the settlement

and to pursue claims in the tort system should their medical

condition change over time. See, e.g., Georgin~ v. Amchem

Prods., Inc., 83 F.3d 610, 630-31 (3d Cir. 1996) (subsequent

history omitted) (explaining that “because of the difficulty

in forecasting what their futures hold, [class members in the

asbestos settlement ultimately overturned in Amchem] would

probably desire a delayed opt out like the one employed in

Bowling v. Pfizer, Inc., 143 F.R.D. 141, 150 (S.D. Ohio

1992)”); see also John C. Coffee, Jr., Class Action

Accountability: Reconciling Exit, Voice, and Loyalty in

Representative Litigation, 100 Colum. L. Rev. 370, 432-33

(2000). :

Such back-end opt-out provisions result from arduous

negotiations and inevitably reflect a delicate balance between

defendants’ rights to finality and limited liability, on the one

hand, and claimants’ interests in flexibility to re-enter the

tort system, on the other. For example, in the recent diet drug

settlement involving some 6 million class members, which

was approved by the United States District Court for the

Eastern District of Pennsylvania, the settlement agreement

allowed two separate opportunities for claimants to exit the

settlement later. See Jn re Diet Drugs, 2000 WL 1222042, at

*25-26 (E.D. Pa. Aug. 28, 2000). In exchange for the

defendant’s waiver of the statute of limitations and other

defenses, both of those opt-out opportunities were limited

in certain respects, for example, precluding claims for

punitive damages by later opt-out claimants and restricting

permissible causes of action to those based on specific

medical conditions. See id. One commentator has hailed the

diet drug settlement’s structure in this respect as “a bold new

approach” to “reconcile the demands of autonomy and peace

in the mass tort class action.” Richard A. Nagareda,

Autonomy, Peace, and Put Options in the Mass Tort Class

Action, 115 Harv. L. Rev. 747, 796 (2002).

Amchem will likely yield more and more such settlements

with back-end opt-outs for those whose injuries arise or

worsen after the settlement is concluded. See Francis E.

McGovern, Class Actions and Social Issue Torts in the Gulf

South, 74 Tulane L. Rev 1655, 1676 (2000). That some class

members under these procedures can legitimately bring cases

after a global settlement while others cannot virtually assures

disputes, as litigants whose claims are barred try to shoehorn

themselves within the negotiated exceptions. Increasingly,

courts will have to resolve those disputes, or else undercut

the very mechanisms that Amchem demands.

To do that, federal courts will need the flexibility to

employ all the authorized means at their disposal to preserve

and protect the peace for which the parties have bargained.

The All Writs Act confers on federal courts the statutory

authority to enforce their judgments under appropriate

circumstances using any means that are “agreeable to the

usages and principles of law.” 28 U.S.C. § 1651. As discussed

below, where litigants flout a settlement over which a federal

court has retained jurisdiction, removal is one of the tools in

the toolbox which fall within that authority.

ARGUMENT

I. The All Writs Act Confers Removal Authority Based

On Continuing Jurisdiction To Enforce A Prior Federal

Court Judgment.

The Court of Appeals imprecisely characterized the issue

presented in this case, assessing whether the All Writs Act

conferred an “independent basis of federal subject-matter

jurisdiction” to permit removal. Henson v. Ciba-Geigy Corp.,

261 F.3d 1065, 1070 (11th Cir. 2001) (emphasis added).

By ..s terms, though, the All Writs Act authorizes federal

courts to “issue all writs necessary or appropriate in aid of

their respective jurisdictions.” 28 U.S.C. § 1651(a) (emphasis

added). This Court confirmed the source of that authority in

United States v. New York Telephone Company, 434 U.S. 159,

172 (1977), noting that a federal court has power

“to issue such commands under the All Writs Act as may be

necessary or appropriate to effectuate and prevent the

frustration of orders previously issued in its exercise of

jurisdiction otherwise obtained.” (emphasis added). In this

case, the District Court, in the prior Price action, had

approved the stipulation of settlement, an express term of

which was the dismissal of the Henson case. See Henson,

261 F.3d at 1067. Moreover, the District Court explicitly

retained jurisdiction to enforce that stipulation of settlement.

See Joint App. 88a, 93a. Thus, the removal is “in aid of,”

and derives from, the District Court’s continuing jurisdiction

to enforce the very terms of its judgment in Price.

It follows that while the All Writs Act does provide

statutory authority for the procedure of removing a case to

federal court, the assumption of jurisdiction underlying that

removal is ancillary to the jurisdiction the Court previously

acquired and retained over the earlier action. As Wright and

Miller observe, “[i]n exceptional circumstances a federal

court may use its authority under Section 1651 of Title 28,

the All Writs Act, to remove an otherwise non-removable

state court case.... The exercise of this power may be

thought to be in the nature of ancillary removal jurisdiction.”

14C Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Fed. Prac. & Proc. § 3729 (3d ed. 1998) (hereinafter

“Wright & Miller”) (internal quotations and footnote

omitted’; cf. Montgomery v. Aetna Plywood, Inc., 231 F.3d

399, 411-12 & n.4 (7th Cir. 2000) (explaining that the All

Writs Act is “simply the source of authority for removal” of

cases where ancillary enforcement jurisdiction exists).‘

This Court has recognized that a federal court has

ancillary jurisdiction “(1) to permit disposition by a single

4. The Court of Appeals declined to address “ancillary

jurisdiction” in this case because, it stated, Petitioner did not assert

it. See Henson v. Ciba-Geigy Corp., 261 F.3d 1065, 1068 n.3 (11th

Cir. 2001). But the assertion of jurisdiction under the Ali Writs Act,

which by its terms refers to jurisdiction previously obtained, is

inherently an invocation of ancillary jurisdiction. This Court should

not require the incantation of magic words to re-characterize what

reliance on the statute necessarily entails. See Fed. R. Civ. P. 8(f)

(“All pleadings shall be so construed as to do substantial justice.”);

5 Wright & Miller § 1286 (“The federal rules do not adhere to the

ancient principle that a pleading must be construed most strongly

against the pleader. Nor do the federal courts require technical

exactness or draw refined inferences against the pleader.”) (footnotes

omitted).

_ In any event, the District Court’s own authority to enforce its

judgments and protect its jurisdiction cannot be circumscribed by

the parties’ characterization of the source of that authority.

The District Court has its own interests in preserving the integrity of

its judgments, and has the independent authority to assert jurisdiction

in order to do so. Cf. Yonkers Racing Corp. v. City of Yonkers, 858

F.2d 855, 858 (2d Cir. 1988) (approving the district court’s sua sponte

ordering of defendant to remove a case pursuant to the All Writs

Act).

court of claims that are, in varying respects and degrees,

factually interdepe-.dent; and (2) to enable a court to function

successfully, that :s, to manage its proceedings, vindicate its

authority, and erfectuate its decrees.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 379-80 (1994) (citations

omitted). The first type of ancillary jurisdiction, that based

merely on “factual and logical dependence on the primary

lawsuit,” cannot support a subsequent lawsuit based solely

on federal jurisdiction over the prior suit. See Peacock v.

Thomas, 516 U.S. 349, 355 (1996) (internal quotations

omitted). But that is not the case with the second form of

ancillary jurisdiction, which has been characterized as

“ancillary enforcement jurisdiction.” /d. at 356. Thus, this

Court has “approved the exercise of ancillary jurisdiction

over a broad range of supplementary proceedings”

brought to protect and enforce prior federal judgments. /d. ;

cf. Wayman v. Southard, 23 U.S. 1, 23 (1825) (Marshall, J.)

(“The jurisdiction of a Court is not exhausted by the rendition

of its judgment, but continues until that judgment shall be

satisfied.”). Asserting ancillary enforcement jurisdiction over

this case similarly enables the District Court to vindicate its

authority and effectuate the decree it entered in Price.

The principles articulated by this Court in Kokkonen and

Peacock thus strongly support the exercise of ancillary

jurisdiction here. To be sure, the ultimate decision in Peacock,

applying those principles, was to deny jurisdiction. But the

facts of Peacock are very different from the facts here. After

obtaining a judgment in an ERISA case, the respondent in

Peacock brought a new suit in federal court against a third

party alleging a conspiracy to prevent satisfaction of that

judgment. See Peacock, 516 U.S. at 351-52. There was no

independent basis of federal jurisdiction over that conspiracy

claim. This Court held that there also was no ancillary

jurisdiction. See id. at 354-55. In the Court’s view, ancillary

enforcement jurisdiction over subsequent proceedings did

not extend so far as to impose an obligation or to enforce a

judgment upon a third party “not already liable for that

judgment.” Jd. at 357. Rather, ancillary enforcement

jurisdiction is confined to proceedings brought “to execute,

or to guarantee eventual executability of, a federal judgment.”

Id. In addition, the Court further warned against the exercise

of ancillary jurisdiction over proceedings that are “entirely

new and original,” id. at 358, noting that the new Peacock

case was founded upon different facts than the first ERISA

suit and entirely new theories of liability. /d.

Unlike the situation in Peacock itself, the assertion of

ancillary jurisdiction here involves a direct effort to enforce

the plain terms of a prior judgment upon a party who is

manifestly bound by that judgment. To begin with, this suit

involves precisely the same parties as the original action —

a participant and intervenor in the settlement in the prior

action and the settling defendant in that case. See Henson,

261 F.3d 1066-67. Second, the plaintiff in this case violated

the District Court’s explicit order dismissing the precise

claims the plaintiff asserted. Third, unlike the situation in

Peacock, the original suit here has not terminated. In Peacock,

the district court entered judgment in the ERISA action and

the case ended. In this case, by contrast, the District Court

retained jurisdiction, and the case thus endures. The action

is therefore not “entirely new and original.” Peacock, 516

U.S. at 358 (internal quotations and citations omitted).

Although characterized as a new action by plaintiffs in order

to avoid the judgment in Price extinguishing their claim, in

substance it is nothing more than a continuation of the

original action.°

5. Aplaintiff may not, by artful pleading, avoid a federal court’s

assertion of ancillary jurisdiction or its invocation of the All Writs

Act to enforce its judgments. Rivet v. Regions Bank of Louisiana,

522 U.S. 470 (1998), is not to the contrary. The question in Rivet, a

(Cont'd)

oo =

Moreover, because the Court of Appeals misperceived

the issue as whether the All Writs Act could confer

jurisdiction absent any preexisting source of jurisdictional

authority, the cases relied upon by the Court of Appeals do

not govern here. In McIntire v. Wood, 11 U.S. (7 Cranch)

504 (1813), for example, the circuit court lacked authority

to address the mandamus application before it because the

petitioner framed that application as an original proceeding

before the circuit court, not as a means of enforcing or

protecting the court’s jurisdiction “otherwise obtained.”

See Bd. of County Comm'rs of Labette Co., Kan. v. United

States ex rel. Moulton, 112 U.S. 217, 221 (1884) (“[T]he

writ [of mandamus] issues out of [circuit courts] only in aid

of a jurisdiction previously acquired.”); see also United States

v. New York Tel. Co., 434 U.S. 159, 172 (1977). In this case,

however, the defendant sought removal explicitly as a means

of enforcing the district court’s jurisdiction over its dismissal

order, not as an entirely independent proceeding.

Similarly, in Clinton v. Goldsmith, 526 U.S. 529, 535-

36 (1999), the relief sought under the All Writs order evinced

no logical connection with the pre-existing jurisdiction of

the issuing court, the Air Force Court of Criminal Appeals

(“CAAF”). By statute, the jurisdiction of the CAAF was

(Cont'd)

case purportedly arising under federal law within the meaning of

28 U.S.C. § 1331, was whether “removal may be predicated on a

defendant's assertion that a prior federal judgment has disposed of

the entire matter and thus bars plaintiffs from later pursuing a state-

law based case.” 522 U.S. at 472. The defendants in that case asserted

that jurisdiction lay under § 1331 on the basis of a purely defensive

plea raised in the state court proceeding. Neither the defendant nor

the district court raised the All Writs Act as a basis for removal, nor

had the district court in the prior federal action retained jurisdiction

to enforce its'orders. Rivet thus did not involve, as this case does,

invocation of the expressly retained jurisdiction of a federal court in

the prior action upon which the removal was based.

expressly limited to review of the findings and sentence of a

court-martial. The application by the respondent service-

member for extraordinary relief in that case sought review

of an executive action of the Air Force in removing his name

from the Air Force rolls. See id. Accordingly, the Court found

that the relief sought was not “in aid of” the CAAF’s existing

(or potential) jurisdiction. /d. By contrast, in this case, the

respondent’s initiation of an action barred by the district

court’s order was linked directly to the court’s retained

jurisdiction over that order. The relief sought here has a

logical nexus to, and is “in aid of,” the Court’s existing

jurisdiction.

In sum, it is far too facile to deny the authority to remove

a case based on the notion that the All Writs Act cannot confer

“independent” jurisdiction. The All Writs Act need not confer

“independent jurisdiction” over the removed action, but

merely supply the statutory authority to bring before the

district court a case over which it possesses ancillary

enforcement jurisdiction. Accordingly, there is no

jurisdictional obstacle to using the All Writs Act to protect

and effectuate those orders through removal of a state court

action.

II. Removal Is An Appropriate Exercise Of Authority

Under The All Writs Act To Effectuate The District

Court’s Prior Judgment.

A. The All Writs Act Supplements Section 1441

This Court has held that the All Writs Act fills “the

interstices of federal judicial power when those gaps

threatened to thwart the otherwise proper exercise of federal

courts’ jurisdiction.” Pennsylvania Bureau of Corr. v. United

States Marshals Serv., 474 U.S. 34, 41 (1985); see also New

York Tel., 434 U.S. at 172-73. The Court of Appeals below

overlooked this function of the All Writs Act when

it concluded that 28 U.S.C. § 1441(a) exhausts the

circumstances under which removal is permitted, as have

those commentators who have disapproved of removal

pursuant to the All Writs Act. See Lonny Sheinkopf Hoffman,

Removal Jurisdiction and the All Writs Act, 148 U. Pa. L.

Rev. 401, 435-37 (1999); Joan Steinman, The Newest

Frontier of Judicial Activism: Removal Under the All Writs

Act, 80 B.U. L. Rev. 773, 820-21 (2000).

The argument mounted by some defenders of the Court

of Appeals’ position, that the specification of conditions for

removal in Section 1441 reflects legislative intent to.preclude

removal under the All Writs Act, implicitly invokes the canon

of construction expressio unius est exclusio alterius — what

is not included is excluded. See Henson, 251 F.3d at 1071;

cf. Texas v. Real Parties in Interest, 259 F.3d 387, 393-94

(Sth Cir. 2001) (concluding that it would be “bold indeed”

to read the All Writs Act to permit removal where not

otherwise permitted by § 1441). This Court, however, has

cast a skeptical eye on the expressio unius canon because it

rests on the improbable inference that Congress, by its

silence, implicitly considered — and rejected — other

legislative alternatives. See Pauley v. Bethenergy Mines, Inc.,

501 U.S. 680, 703 (1991) (“the principle expressio unius est

exclusio alterius ‘is a questionable one in light of the dubious

reliability of inferring specific intent from silence’’’) (quoting

Cass R. Sunstein, Law and Administration After Chevron,

90 Colum. L. Rev. 2071, 2109 n.182 (1990)); Richard A.

Posner, Statutory Interpretation — In the Classroom and in

the Courtroom, 50 U. Chi. L. Rev. 800, 813 (1983) (“The

canon expressio unius is ... based on the assumption of

legislative omniscience. . . .”’).

Two possibilities here are far more likely than this far-

fetched assumption. The first is that in enacting the removal

statutes applicable in the broad run of cases, Congress simply

did not contemplate extraordinary circumstances such

as those presented here. As a unanimous Court recently

explained when rejecting the expressio unius maxim in

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 487

(1999), “[njow and then silence is not pregnant.” Second,

Congress may have assumed that it had allowed for those

extraordinary circumstances in the All Writs Act, the very

purpose of which is to affard judicial remedies where not

otherwise authorized by statute.

The analogy to the federal appellate courts’ mandamus

power demonstrates the limitations of the expressio unius

principle in interpreting the All Writs Act. In 28 U.S.C.

§§ 1291 and 1292, Congress delimited the courts of appeals’

appellate jurisdiction, over both fina! judgments and

interlocutory orders. Yet the courts of appeals have long

resorted to their mandamus power under the All Writs Act

when extraordinary relief is justified and existing statutory

bases for appellate jurisdiction are inadequate. See La Buy v.

Howes Leather Co., 352 U.S. 249, 254 (1957) (rejecting

petitioner’s argument that the district court’s “action can be

reviewed only on appeal and not by writ of mandamus, since

by congressional enactment appellate review of a District

Court’s orders may be had only after a final judgment”);

see also 16 Wright & Miller § 3934.1 (“Writ review that

responds to occasional special needs provides a valuable ad

hoc relief valve for the pressures that are imperfectly

contained by the statutes permitting appeals from final

judgments and interlocutory orders.”).

In other contexts as well, this Court has rejected efforts

to glean some Congressional intent, lurking in other remedial

statutes, to constrict use of the All Writs Act. In FTC v. Dean

Foods Co., 384 U.S. 597, 599 (1966), for example, the FTC

asked the court of appeals to grant a preliminary injunction

under the All Writs Act against a merger that allegedly

violated the Clayton Act. The respondents observed that the

FTC had previously sought statutory authority to issue

injunctions itself or to seek such relief from the district courts.

By failing to confer that authority, the respondents argued,

Congress intended to deny authority to seek injunctive relief

from the court of appeals. See id. at 608. The court rejected

that argument, stating: “We cannot infer from the fact that

Congress took no action at all on the request of the

Commission to grant it or a district court power to enjoin a

merger that Congress thereby expressed an intent to

circumscribe traditional judicial remedies.” /d. at 609-10;

see also id. at 609 n.11 (quoting Helvering v. Hallock, 309

U.S. 106, 120 (1940), for the proposition that “to give weight

to the nonaction of Congress was to ‘venture into speculative

unrealities’”’).

Instead, this Court and the courts of appeals have read

the All Writs Act to provide the basis for numerous other

writs not otherwise specifically authorized by statute.

For example, in United States v. Morgan, 346 U.S. 502, 512

(1954), the Court held that the writ of coram nobis was

available pursuant to the All Writs Act to correct errors

“of the most fundamental character” when relief was not

otherwise available — i.e., pursuant to the habeas corpus

statutes, 28 U.S.C. §§ 2241, 2255. /d.; see also id. at 506

(“Since this motion in the nature of the ancient writ of coram

nobis is not specifically authorized by any statute enacted

by Congress, the power to grant such relief, if it exists, must

come from the all-writs section of the Judicial Code.”).

This Court has held that a writ of certiorari may issue even

where unauthorized by the statute ordinarily providing for

discretionary review of appellate court judgments by this

Court. See McClellan v. Carland, 217 U.S. 268, 278 (1910)

(holding that the power of this Court to issue certiorari

pursuant to the contemporary All Writs Act is not limited by

§ 10 of the court of appeals act, 26 Stat. at L.826, chap. 517).

And the federal courts may issue a writ of supersedeas, even

though “there is no express provision in the [court of appeals

act] for a supersedeas and stay of execution.” /n re Claasen,

140 U.S. 200, 207 (1891). See also Hills & Co. v. Hoover,

220 U.S. 329, 337 (1911) (explaining that the contemporary

All Writs Act authorizes a writ in the nature of replevin);

Wayman v. Southard, 23 U.S. 1, 23 (1825) (Marshall, J.)

(explaining that the contemporary All Writs Act authorizes a

writ of execution). Similarly, removal is nothing more than

another form of writ authorized by 28 U.S.C. § 1651 to

provide relief where other statutory mechanisms are found

insufficient.°

Indeed, that Congress did not explicitly provide for

removal in the particular circumstances here, far from

counseling against use of the All Writs Act, actually supports

it. As noted, the very purpose of All Writs Act is to fill the

gaps left by explicit statutory grants of authority. As this Court

explained in Pennsylvania Bureau of Correction, “[t}he All

Writs Act is a residual source of authority to issue writs

that are not otherwise covered by statute.” 474 U.S. at 43

(emphasis added). Thus, for example, in New York Telephone

Company, the absence of appropriate statutory means to

implement pen register orders, among other things, led the

_ 6. Both of the essential components of removal are, at base,

procedures available by the issuance of writs that have long been accepted

by this Court as properly authorized under the All Writs Act. The

requirement that the state court cease proceedings upon filing of the

petition for removal has the same practical effect as an injunction against

the prosecution of that action. And the power of the federal court to

compe! the parties or the state court to file with it a copy of the record of

the proceedings may similarly be analogized to the traditional writ of

certiorari. In fact, the removal statute expressly invokes that analogy.

See 28 U.S.C. § 1447(b) (“The [district court] may require the removing

party to file with its clerk copies of all records and proceedings in such

State court or may cause the same to be brought before it by writ of

certiorari issued to such State court.”) (emphasis added).

Court to affirm use of the All Writs Act to compel third parties

to install the devices. See 434 U.S. at 175. (“[W]ithout the

Company’s assistance [as required by the All Writs Act order

in question] there is no conceivable way in which the

surveillance authorized by the District Court could have been

successfully accomplished.”). That same result should follow

here.

B. Removal Intrudes Less on the Prerogatives of

the State Court than an Injunction and Should Be

an Available Remedy

The Court of Appeals embraced a false dichotomy when

it concluded that removal jurisdiction was not “necessary”

to protect the District Court’s injunction due to the “ready

remedy” of injunctive relief pursuant to the All Writs Act.

See Henson, 261 F.3d at 1071. This holding confuses the

threshold standard for invoking the All Writs Act with the

determination of which remedy under the Act is appropriate

once that threshold test is satisfied.

‘In order for extraordinary relief to be appropriate under

the Act, there must be a showing of necessity, in that statutory

procedures apart from the All Writs Act cannot afford the

requisite relief. See Pennsylvania Bureau of Corr., 474 U.S.

at 43. But neither the statute nor this Court’s decisions hold

that, when that showing has been made and extraordinary

relief is indeed justified under the All Writs Act, a district

court is restricted to only one of the extraordinary remedies

the statute provides. The Act, as noted, empowers federal

courts to issue “all writs necessary or appropriate in aid of

their respective jurisdictions.” 28 U.S.C. § 1651(a). It does

not distinguish among those writs, preferring one to another.

To be sure, federal courts do have authority under the

All Writs Act and the Anti-Injunction Act, 28 U.S.C. § 2283,

to enjoin state court lawsuits where necessary or appropriate

to protect and effectuate their judgments. See Chick

Kam Choo v. Exxon Corp., 486 U.S. 140, 146-47 (1988)

(explaining the authority of a federal court to enjoin pending

state court proceedings that seek to relitigate its judgments).’

But it is not clear why the Court of Appeals regarded such an

injunction as so far superior to removal across the board.

In an injunction proceeding, as in a removal, the parties still

must appear before the federal forum to litigate the propriety

of that relief, even if in some metaphysical sense the

underlying “case” is not before that court. Further, the parties

to an injunction proceeding generally must present the federal

court with relevant portions of the record in the state court

to support or refute the need for injunctive relief. In fact, in

erder to facilitate its determination of the case, the federal

court can order production of the entire record, just as the

record must be transferred in a removal proceeding. And in

issuing an injunction, the federal court can even go so far as

to decide the case, in the sense that it can direct the parties

to dismiss it, or to drop or modify certain claims.

If anything, removal disturbs the comity between state

and federal courts /ess than an injunction does. Enjoining a

lawsuit in state court, while sometimes necessary, has long

been recognized as a significant intrusion on the prerogatives

of state courts. For that reason, Congress enacted the Anti-

Injunction Act strictly limiting the circumstances in which

7. The lower federal courts have on numerous occasions

employed anti-suit injunctions to protect or effectuate federal court

jurisdiction pursuant to the All Writs Act and Anti-Injunction Act in

the context of pending or potential comprehensive class action

settlements such as the one at issue in this case. See, e.g., In re

Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 361

(3d Cir. 2001); Jn re VMS Secs. Litig., 103 F.3d 1317, 1324 (7th Cir.

1996); In re Baldwin-United Corp., 770 F.2d 328, 333 (2d Cir. 1985);

In re Corrugated Container Antitrust Litig., 659 F.2d 1332, 1334

(Sth Cir. 1981).

—_—

such relief is available. See 28 U.S.C. § 2283; see also

Younger v. Harris, 401 U.S. 37, 45 (1971) (setting forth

“some of the reasons why it has been perfectly natural for

our cases to repeat time and time again that the normal thing

to do when federal courts are asked to enjoin pending

proceedings in state courts is not to issue such injunctions”).

By contrast, removal is a common, well-established, and even

routine mechanism. It was part of the Federal Judiciary Act

of 1789. See 13 Wright & Miller § 3521; Judiciary Act of

1789, ch. 20, § 12, 1 Stat. 73, 79-80 (1789). Parties have

removed thousands of cases since then, without creating

undue friction between state and federal courts and without

a line of removal cases expressing grave concern about

comity or imbalance in federal-state relations. While a

removal petition does halt proceedings in state courts in the

same manner as an injunction, it simply does not carry the

same connotations of untoward interference with state court

proceedings that can accompany an anti-suit injunction. As

the Second Circuit Court of Appeals has concluded, when

compared to injunctive relief the “[uJse of the All Writs

Act ... to effectuate removal thus seems to us to be a less

drastic, and therefore preferable, result.” Yonkers Racing

Corp. v. City of Yonkers, 858 F.2d 855, 864 (2d Cir. 1988);

see also Younger, 401 U.S. at 44 (explaining that under

“Our Federalism,” federal interests should be vindicated “in

ways that will not unduly interfere with the legitimate

activities of the States.’’).

The differing level of intrusiveness in state court

proceedings could assume even greater import with the

advent of “back-end” opt-out rights in the post-Amchem era.

See Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).

As noted, to address the concerns the Court expressed in

Amchem about binding claimants whose injuries may arise

or worsen in the future, litigants have negotiated back-end

opt-out rights in connection with class action settlements,

enabling claimants to exit the settlement and to pursue claims

in the tort system should their medical condition change over

time. See Jn re Diet Drugs (Phentermine/Fenfluramine/

Dexfenfluramine) Prods. Liab. Litig., MDL No. 1203, Civ.

No. 99-20593, 2000 WL 1222042, at *20 (E.D. Pa. Aug. 28,

2000); see also Georzine v. Amchem Prods., Inc., 83 F.3d

610, 630 (3d Cir. 1996) (subsequent history omitted)

(explaining that class members would probably desire a

delayed opt out where uncertainty exists as to future harm).

Indeed, such back-end opt-out rights are not merely a valuable

feature in such settlements; their use has also been hailed as

a “fundamental shift” in the manner in which mass torts

may be resolved through class settlements. See Richard A.

Nagareda, Autonomy, Peace, and Put Opiions in the Mass

Tort Class Action, 115 Harv. L. Rev. 747, 756 (2002).

Because settling defendants must secure some benefit

in exchange for providing class members with the right to

later proceed in the tort system, such back-end opt-outs are,

by their nature, limited in certain respects. For example, they

may allow plaintiffs to bring certain claims but not others.

See id. at 757. This, in consequence, creates significant

potential for plaintiffs to join permissible with impermissible

claims. Restricting the federal courts to injunctions to enforce

these settlements would require them effectively to reach into

the state court and conduct “surgery” from afar.

Federal courts, for example, might have to mandate

specific amendments to class members’ complaints so that

the complaints comply with any restrictions imposed by the

settlement agreement on such “later opt-out” class members’

claims. Or the federal court might have to direct the dismissal

of certain counts and not others. Or it might need to enjoin

particular arguments by the parties. In general, the federal

court might have to re-mold the suit in accordance with the

prior orders of the court. Cf In re Prudential Ins. Co. of Am.

27 :

Sales Practice Litig., 261 F.3d 355, 363 (3d Cir. 2001)

(enjoining litigant from pursuing particular discovery or

presenting specific evidence in a state court action when

doing so would violate a release of certain claims effected

by a prior federal class action settlement). By contrast, when

such a purported back-end opt-out case is removed from state

court, the federal court no longer has to delve into the state

court proceedings to fashion appropriate relief. The federal

court that retained jurisdiction to enforce the settlement, and

that is most familiar with the terms of that settlement, simply

brings the case before it, eliminating the need to intrude into

a case pending before a state court judge.*

A hypothetical example illustrates the potentially greater

intrusion on the dignitary interests of state courts posed by

injunctive relief compared to removal. Suppose a mass tort

class action settlement in federal court provided for back-

end opt-outs for class members who later contracted cancer

as a result of exposure to the subject products — but

prohibited the class members from pursuing punitive

damages or claims other than the cancer claim. Suppose

further that after exercising such a back-end opt-out, a class

member filed a state court claim alleging a blood disorder

and cancer, seeking punitive as well as compensatory

damages. If the defendant could only seek injunctive relief

from the federal court rather than removal, the federal court

might find it necessary to fashion an order striking claims

related to the blood disorder and punitive damages. Moreover,

the court might also have to edit the factual allegations in

the complaint and other pleadings providing the bases for

such impermissible claims. In addition, the federal court

might have to order limitations on discovery regarding the

impermissible claims, as well as to enjoin the class member

8. If the case is not removed initially to the Court that issued

the original judgment, it may be transferred there pursuant to

28 U.S.C. § 1404(a) or § 1407.

from raising arguments relating to them. See, e.g., Jn re

Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d

355 (3d Cir. 2001).

Administering such an injunction would entangle the

federal court with the state court proceeding in a manner

that imperils comity far more than removal would. Indeed,

the federal court might have to struggle to avoid “micro-

management” of the state proceeding. For example, if the

federal court limited discovery relating to prohibited claims,

it could undermine the state court’s control over the discovery

process. Further, it could present logistical problems for the

state court in managing its docket, as it awaited resolution

of questions by the federal court before it could proceed with

its own tasks. And such entanglement by the federal court

could risk inconsistent orders were plaintiffs to move to

compel discovery responses in state court while defendants

sought protective orders in federal court. In short, the

situation presents significant potential for confrontation and

confusion.

Of course, in some situations, the federal court might

find itself better able to protect its jurisdiction and the

continuing effectiveness of its orders through injunctive relief

rather than removal. But that determination will depend on

the particular facts and circumstances of each case. It is

therefore best consigned to the discretion of the district

courts. Particularly given the functional similarities between

removal and injunctive relief, it would elevate form over

substance to deny such discretion, and to preclude a court

from considering either alternative. As this Court has held,

“dry formalism should not sterilize procedural resources

which Congress has made available to the federal courts.”

Adams v. United States ex rel. McCann, 317 U.S. 269, 274

(1942). Such formalism is particularly inappropriate here

because removal may be not only more effective and efficient,

but also more conducive to the comity that ought to

characterize relations between state and federal courts. In

sum, nothing in any federal statute or policy cabins the

discretion of federal courts in their choice of remedies under

the All Writs Act.

CONCLUSION

For those reasons, the decision of the Court of Appeals

should be reversed.

Respectfully submitted,

Rosert N. WEINER

Counsel of Record

DANIEL S. PARISER

JONATHAN P. Hooks

ARNOLD & PORTER

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-5000

HuGH YOUNG

JONATHAN HARRISON

PRODUCT LIABILITY

Apvisory Counc, INc.

Suite 510

1850 Centennial Park Drive

Reston, Virginia 22091

Attorneys for Amicus Curiae

APPENDIX

APPENDIX A — CORPORATE MEMBERS OF

PRODUCT LIABILITY ADVISORY COUNCIL, INC.

3M : Brown and Williamson Tobacco

Allegiance Healthcare Brown-Forman Corporation

Corporation Brunswick Corporation

Altec Industries C. R. Bard, Inc.

Caterpillar Inc.

Chevron Corporation

Compaq

Continental Tire North

America, Inc.

Cooper Tire and Rubber

Company

Coors Brewing Company

Crown Equipment Corporation

DaimlerChrysler Corporation

Dana Corporation

Deere & Company

Black & Decker (U.S.) Inc. E & J Gallo Winery

BMW of North America, LLC E. I. DuPont de Nemours

Products Eaton Corporation

BP Amoco Corporation Eli Lilly and Company

Bridgestone/Firestone, Inc. Emerson Electric Co.

Briggs & Stratton i Controls

Corporation International, Inc.

Bristol-Myers Squibb Estee Lauder Companies

Company ExxonMobil Corporation

Appendix A

FMC Corporation Lincoln Electric

Ford Motor Company Holdings, Inc.

Mazda

G 1 Electric C

poate vee os a (North America), Inc.

t t

nae p 8 aaa “86s Medtronic, Inc.

a t

eorgia-Pacific Corporation ieenten: of

GlaxoSmithK |inc North America, Inc.

Great Dane Limited Michelin North America, Inc.

Partnership

Guidant C Miller Brewing Company

t t

aise oun Mitsubishi Motors R & D

Harley-Davidson Motor of America, Inc.

Company

H C — Niro Inc.

arsco Corporation, Gas

& Fluid Control Group ‘Nissan North America, Inc.

Honda North America, Inc, Novartis Pharmaceuticals

Corporation

Hyundai Motor America

Otis Elevator Company

International Truck and

Engine Corporation PACCAR Inc

Isuzu Motors America, Inc. Panasonic

Johnson & Johnson Pentair, Inc.

Johnson Controls, Inc. Pfizer Inc.

Joy Global Inc. Pharmacia Corporation

Kawasaki Motors Philip Morris Companies Inc.

Corp., U.S.A. Polaris Industries, Inc.

Kia Motors America, Inc. _ Porsche Cars

Kolcraft Enterprises, Inc. North America, Inc.

Kraft Foods North Raytheon Aircraft Company

America, Inc. Rheem Manufacturing

Appendix A

RJ Reynolds Tobacco The Dow Chemical Company

Company The Goodyear Tire

Schindler Elevator & Rubber Company

Corporation The Heil Company

SCM Group USA Inc. The Procter & Gamble

Sears, Roebuck and Co. Company

Shell Oil Company

Siemens Corporation

Smith & Nephew, Inc.

Snap-on Incorporated

Sofamor Danek,

Medtronic Inc.

Solutia Inc.

Sturm, Ruger

& Company, Inc.

Sunbeam Corporation

Synthes (U.S.A.)

Textron Inc.

The Boeing Company

Subaru of America, Inc.

The Raymond Corporation

The Sherwin-Williams

Company

The Toro Company

Thomas Built Buses, Inc.

Toshiba America Incorporated

Toyota Motor Sales, USA, Inc.

TRW Inc.

UST (U.S. Tobacco)

Volkswagen of America, Inc.

Volvo Cars of

North America, Inc.

Vulcan Materials Company

Water Bonnet

Manufacturing, Inc.

Whirlpool Corporation

Wilbur-Ellis Company

Wyeth

Yamaha Motor

Corporation, U.S.A.

Zimmer, Inc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.