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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0528%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 28

## Text

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,
v.

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

13

13

18

18

il

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

la

il

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

iv

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

v
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

vi
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”

ix

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

11

5,7

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

xi

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

19

i4

20

l
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.

2

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.

3

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

4

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)

5

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).

6

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.

7

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/

9

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

10

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).

11

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

12

*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.

13

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

14

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).

15

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

16

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 =

17

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.

18

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

19

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

20

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

21

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).

22

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).

23

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,

24

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).

—_—

25

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,

26

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.

28

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,

29

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

la

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
Bombardier Recreational ©°™Pany Inc. and Company
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

2a
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

3a

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0528%3A08. Public record. Not legal advice.