# Amicus Curiae Brief — American Bankers Insurance Co. of Florida v. Alexander

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1913%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 534 U.S. 944

## Text

NOTION FILED \o)
JuL 9 2001 No. 00-1826

Jn the Supreme Court of the Anited States

AMERICAN BANKERS INSURANCE COMPANY OF FLORIDA,
Petitioner,
Vv.

BELINDA ALEXANDER, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the
Supreme Court of Mississippi

MOTION OF THE CHAMBER OF COMMERCE
OF THE UNITED STATES FOR LEAVE TO FILE
BRIEF AS AMICUS CURIAE AND BRIEF

IN SUPPORT OF PETITIONER

STEPHEN A. BOKAT Roy T. ENGLERT, JR.
ROBIN S. CONRAD ALAN E. UNTEREINER*
JOSHUA A. ULMAN Robbins, Russell, Englert,

National Chamber Orseck & Untereiner LLP

Litigation Center, Inc. 1801 K Street, N.W.

1615 H Street Suite 411

Washington, D.C. Washington, D.C. 29006

(202) 463-5337 (202) 775-4500

* Counsel of Record

x WW

MOTION FOR LEAVE TO FILE BRIEF
AS AMICUS CURIAE

Pursuant to Rule 37.2 of the Rules of this Court, the
Chamber of Commerce of the United States (“the Chamber”)
moves for leave to file the accompanying brief as amicus curiae
in support of the petition for a writ of certiorari. Counsel for
petitioner has consented to the filing of this brief, but counsel
for the respondents has withheld consent.

The Chamber, a non-profit corporation organized under the
laws of the District of Columbia, is the largest federation of
business, trade, and professional corporations in the United
States. The Chamber represents an underlying membership of
approximately three million businesses and organizations of
every size, in every business sector, and from every geographic
region of the country. A central function of the Chamber is to
represent the interests of its members in important matters
before the courts, Congress, and the Executive Branch. To that
end, the Chamber regularly files amicus curiae briefs in cases
that raise issues of vital concern to the Nation’s business
community.

The Chamber believes that this case presents the Court with
a valuable opportunity to clarify the limitations placed by the
Due Process Clause of the Fourteenth Amendment on the
authority of state courts to abandon traditional, time-honored
safeguards historically observed in the conduct of civil litiga-
tion. State and federal courts face growing pressure to fashion
novel methods of processing a rising tide of complex litigation,
including mass tort cases involving asbestos, tobacco, drugs,
medical devices, automobiles, and other products; and class
actions against insurance companies, banks, and other business-
es. In the decision below, the Mississippi Supreme Court sub-
stantially relaxed — to the point of abandoning — a vital pre-
requisite to the joinder of parties in a single civil lawsuit. As a
result, business defendants in the Mississippi courts now face
the prospect — without even the minimal protections inherent
in a class action, which Mississippi does not permit — of liti-

gating cases against hundreds if not thousands of individual
plaintiffs joined as parties to a single lawsuit.

This is no idle or parochial concern. Modern mass tort liti-
gation is a ship capable of calling in any friendly port. Even be-
fore the decision below, Mississippi had become a ““Mecca’ for
mass tort suits against national industry.” Pet. 3 (citing Ballard,
Mississippi Becomes A Mecca for Tort Suits, NAT’L L.J., April
30, 2001, at Al). For example, rural Jefferson County, with a
population of 8345 and a potential jury pool of 6571 voters, has
been the situs of a series of tort lawsuits resulting in multi-
million-dollar verdicts or settlements — all presided over by
Judge Lamar Pickard, the county’s only judge who hears major
civil cases. As a consequence of the decision below, Mississip~
pi will become an even more powerful magnet for mass tort
litigation in the United States, with ripple effects felt throughout
the national economy by a wide array of industries.

Finally, the Chamber has a substantial interest in ensuring
that review is not denied, incorrectly, for lack of a “[f]inal
judgment{] or decree[] rendered by the highest court of a State
in which a decision could be had.” 28 U.S.C. § 1257. As we
explain below, the Mississippi Supreme Court’s decision is
reviewable under this Court’s decisions interpreting Section
1257’s “finality” requirement. The Court should apply its prag-
matic approach to finality questions in this case to “avoid the
mischief of economic waste and of delayed justice.” Cox Broad-
casting Corp. v. Cohn, 420 U.S. 469, 478 (1975) (internal
quotations omitted).

Such flexibility is especially important given the growing
number of multistate class actions and other mass tort cases that
are being filed in the state courts. See Deborah Hensler et al.,
Preliminary Results of the RAND Study of Class Action
Litigation, at 15 (1997) (“[the] doubling or tripling over the past
several years of the number of putative class actions” faced by
U.S. companies has been “concentrated in the state courts”).
This trend is a reaction to a series of federal decisions holding
that nationwide class actions could not be certified consistent

2

with the requirements of Fed. R. Civ. P. 23, due process, and
federalism. See, e.g., Broussard v. Meineke Discount Muffler
Shops, Inc., 155 F.3d 331 (4th Cir. 1998); Andrews v. AT&T, 95
F.3d 1014 (11th Cir. 1996); Castano v. American Tobacco Co.,
84 F.3d 734 (Sth Cir. 1996); In re Rhone-Poulenc Rorer, Inc.,
51 F.3d 1293 (7th Cir. 1995). See also Cabraser, Life After
Amchem: The Class Struggle Continues, 31 LOY. L.A. L. REV.
373, 386 (1998) (“It is no secret that class actions — formerly
the province of federal diversity jurisdiction — are being
brought increasingly in the state courts.””). This case is a telling
example: it was only after a federal court refused to certify
federal class actions that the plaintiffs’ counsel filed these cases
in the Mississippi courts. See Pet. 4-5.

In the Chamber’s experience, the latest wave of multistate
class actions and other mass litigation in the state courts —
many of which no federal court would certify — frequently re-
sult in serious threats to the federal constitutional rights of
business defendants. The Chamber has a substantial interest in
ensuring the continued availability of review by this Court of
decisions of the state courts that finally resolve important
federal constitutional questions in such cases.

The Chamber’s motion for leave to filed the accompanying
brief as amicus curiae should be granted.

Respectfully submitted.
STEPHEN A. BOKAT Roy T. ENGLERT, JR.
ROBIN S. CONRAD ALAN E. UNTEREINER*
JOSHUA A. ULMAN Robbins, Russell, Englert,
National Chamber Orseck & Untereiner LLP
Litigation Center, Inc. 1801 K Street, N.W.
1615 H Street Suite 411
Washington, D.C. Washington, D.C. 20006
(202) 463-5337 (202) 775-4500
JULY 2001 * Counsel of Record

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES .........---- eee eeeeeee il
INTEREST OF THE AMICUS CURIAE ........-++++>: 1
V7.0) Ls ere Oe a eee eee rer Teese ee. 1
REASONS FOR GRANTING THE PETITION ......... 4

I. THE DUE PROCESS ISSUE PRESENTED IN THIS
CASE WARRANTS THE COURT’S ATTENTION .. 6

I. THE DECISION BELOW IS A “FINAL JUDGMENT”
THAT THIS COURT HAS JURISDICTION TO

I ci Ven cs is bee awee Renee Fes 13

A. This Court Has Jurisdiction Under Established
ie eee na as 14

B. Practical Considerations Strongly Favor Review
De ee ine Cae Wee ak ae we Ors 17
"o( os | Rae eernn ey Osta wna Ere re 20

(i)

ii

TABLE OF AUTHORITIES
Page(s)
Cases:
ACand5S, Inc. v. Abate, 710 A.2d 944 (Md. Ct. Spec.

App.), cert. denied, 713 A.2d 979 (Md. 1998),

oust. Goniell, SES UF. GFE CHG. cteiccivecvsede 12
American Export Lines, Inc. v. Alvarez, 446 U.S. 274

CIDE oics bec css b6C ses Bor ee eae aw eteaeee ue 5
Calder v. Jones, 465 U.S. 783 (1984) .............05. 15
California v. Rooney, 483 U.S. 307 (1987) ............ 17
Castano v. American Tobacco Co., 84 F.3d 734

CS Ca. TEED iia io GEOR SEA hice 18
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

CISTS) oo Seeks AN Oa 5, 13, 17
Crane v. Kentucky, 476 U.S. 683 (1986) ............... 8
Daubert v. Merrell Dow Pharmaceuticals, Inc.,

SOUR: Fre Cees bk sha cadaaiicdassiekceweks ll
Bote v. Tenmmn, SE8 UE. Tae CRI hove ee vtccinctndkere 8
Hathorn v. Lovorn, 457 U.S. 255 (1982) .............. 18
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ...... 5,8

In re Chevron U.S.A., Inc., 109 F.3d 1016

TABLE OF AUTHORITIES — Continued

Page(s)
In re Chevron U.S.A., Inc., 109 F.3d 1016

NN Mian is Nas ON 6 eK dso 0 6a sds vaeas 10, 12
In re Repetitive Stress Injury Litig., 11 F.3d 368

ache Mie Rie ta dei eweh Ken weaes 06s 8
In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293

I ok Sa Beas eS Sn ee we at 18
In re Winship, 397 U.S. 358 (1970) .............20055- 8
Kansas City-Southern Railway Co. v. Johnson, 2001

WL 107864 (Miss. Feb. 8, 2001) ................. 10
Kurcnz v. Honda North America, Inc.,

oP A Bee Fe | re 11
Local 438, Construction & General Laborers’

Union v. Curry, 371 U.S. 542 (1963) ............. 19
Mathews v. Eldridge, 424 U.S. 319 (1976) ......... passim
Mercantile National Bank v. Langdeau,

Pe is sao oh ant nedon Mississippi’s substantive law also makes the state an attractive forum for
tort plaintiffs from around the country. For example, the Mississippi
Supreme Court recently held that “hedonic damages” (i.e., damages for the

ll

litigants will face years of injustice in mass joinder cases in
Mississipoi |

become a ““Mecca’ for mass tort suits against national indus-
try.” Pet. 3 (citing Ballard, Mississippi Becomes A Mecca for
Tort Suits, NAT’L L.J., April 30, 2001, at Al). Since 1995, at
least nineteen Jefferson County damage awards have exceeded
$9 million, and six have exceeded $100 million each. Jerry
Mitchell, Out-of-State Cases, In-State Headaches, CLARION-
LEDGER, June 18, 2001. Jefferson County’s reputation for
massive verdicts has spurred lawyers to troll for potential
plaintiffs by inundating county residents with advertisements in
the local paper and on local television. See Critics Link Lawyer
Ads, Big Awards, CLARION-LEDGER, June 18, 2001; Fox News:
Special Report with Brit Hume, 2001 WL 5000700 (June 4,
2001) (“The local papers are filled with attorney advertisements,
been caused by any product.”).‘ Lawyers in out-of-state
plaintiffs’ firms reportedly are scurrying to take the Mississippi
bar so that they will be eligible to purchase a ticket in this
lottery. See Ballard, supra, NAT’L L.J., April 30, 2001, at Al
(reporting that “many of the 41 lawyers” in an Alabama
plaintiffs’ firm “have recently taken the Mississippi bar exam”).

Faced with the prospect of defending a lawsuit in Jefferson
County, many companies have felt compelled to offer

been excluded under Fed. R. Evid. 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) — by “the vast majority” of
federal courts to have considered the issue. Kurcnz v. Honda North America,
Inc., 166 F.R_D. 386, 388-389 (N_D. IIL 1996) (collecting cases).

* The Bankston Drug Store, Jefferson County’s only pharmacy, has been
named so often as defendant in mass tort cases against nationwide

mom-and-pop
count.” Kraft, the in Courtrooms: Pharmacies
Often in Po a gp pm og oye 2001, at 16A; Ballard,
supra, NAT’L L_J., April 30, 2001, at Al.

12

settlements that do not reflect the merits of the case. See
Mitchell, Jefferson County Ground Zero for Cases, CLARION-
LEDGER, June 18, 2001. The threat of large jury verdicts
persuaded forty-four companies to stop selling certain types of
insurance in Mississippi or to pull out of the state altogether.
Big Jury Awards Have Insurers on Run from State, COM-
MERCIAL APPEAL, June 20, 2001. As a consequence of the deci-
sion below, Mississippi will become an even more powerful
magnet for mass tort litigation in the United States, with ripple
effects felt throughout the national economy by a wide array of
industries.

This is not a purely local phenomenon, nor is it one that this
Court should ignore. The prospect of years of coercive and
egregiously unfair proceeding in the Mississippi courts, with the
resultant negative consequences on the national economy, is one
that should give this Court pause. Moreover, this Court has a
responsibility to ensure that state courts adhere to minimum
due process requirements imposed by the federal Constitution,
at least where, as here, the state courts have refused to discharge

Finally, review should be granted because this case presents
the Court with a valuable opportunity to clarify the limitations
placed by the Due Process Clause of the Fourteenth Amendment
on the authority of state courts to abandon traditional, time-
honored safeguards historically observed in the conduct of civil
litigation. In recent years, state and federal courts have faced
growing pressure to fashion novel methods of processing a
rising tide of complex litigation, including mass tort cases and
a variety of class actions.’ In response to the pressures of man-
aging mass tort litigation of unprecedented scope, state judges

* See, e.g., In re Chevron U.S.A., Inc., 109 F.3d 1016 (Sth Cir. 1997) (selec-
tion of “bellwether” plaintiffs); ACandS, Inc. v. Abate, 710 A.2d 944 (Md.
Ct. Spec. App.) (mass consolidation), cert. denied, 713 A.2d 979 (Md. 1998),
cert. denied, 525 U.S. 1171 (1999); see generally Barton, Utilizing Statistics
and Bellwether Trials in Mass Torts: What Do the Constitution and Federal
Rules of Civil Procedure Require?, 8 WM. & MARY BILL RTs. J. 199 (1999).

13

have felt obliged, in a variety of contexts, to abandon the tradi-
tional protections of the common law for reasons of efficiency.
See, e.g., Mulderig, Wharton & Cecil, Tobacco Cases May Be
Only the Tip of the Iceberg for Assaults on Privilege, 67 DEF.
COUNSEL J. 16, 19-23 (2000) (explaining that Minnesota trial
court, in response to sheer number of documents whose privi-
lege status was disputed by plaintiffs, abandoned the traditional
safeguard of document-by-document review in examining privi-
lege claims and instead used an unprecedented categorization
procedure that yielded demonstrably inconsistent results).
Greater guidance from this Court would substantially assist the
lower courts in evaluating when departures from traditional
safeguards in mass tort and other complex litigation are
constitutionally permissible.

Il. THE DECISION BELOW IS A“FINAL JUDGMENT”
THAT THIS COURT HAS JURISDICTION TO
REVIEW
This Court’s certiorari jurisdiction over decisions of the

state courts is conferred by 28 U.S.C. § 1257, which authorizes

review of any “[fjinal judgment{] or decree[{] rendered by the
highest court of a State in which a decision could be had.”

Although in theory this “finality” requirement might be under-

stood as precluding review “where anything further remains to

be determined by a State court,” this Court has long eschewed

“such a mechanical” interpretation. Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 477 (1975). Instead, it has consistently

applied an “intensely practical approach” to determining “finali-

ty.” Mathews v. Eldridge, 424 U.S. 319, 331 n.11 (1976); see
also Cox, 420 U.S. at 478 & n.7 (“[T]he requirement of finality
is to be given a practical rather than a technical construction.”)

(internal quotations omitted). “[A]s the cases have unfolded,

the Court has recurringly encountered situations” in which it

elected to treat decisions of the state courts as “final” even
though “there [we]re further proceedings in the lower courts to
come.” Jd. at 477. In Cox, the Court specifically took note of

“at least four categories of such cases” that had been recognized

to date. Ibid.

14

A. This Court Has Jurisdiction Under Established
Case Law

The Mississippi Supreme Court’s decision is reviewable
under several lines of this Court’s decisions. To begin with, it
falls within the fourth category recognized in Cox. That cate-
gory encompasses cases in which (1) “the federal issue has been
finally decided in the state courts with further proceedings
pending in which the party seeking review here might prevail on
the merits on nonfederal grounds, thus rendering unnecessary
review of the federal issue by this Court”; (2) “reversal of the
state court on the federal issue would be preclusive of any fur-
ther litigation on the relevant cause of action rather than merely
controlling the nature and character of, or determining the ad-
missibility of evidence in, the state proceedings still to come”;
and (3) “a refusal immediately to review the state court decision
might seriously erode federal policy.” 420 U.S. at 482-483.

Each of those conditions is satisfied here. First, petitioner’s
federal due process objection to mass joinder was fully consid-
ered — and squarely reyected — by the Mississippi Supreme
Court. See Pet. App. 12a-14a. In addition, it is possible for the
petitioner, if review is denied, to prevail on the merits on non-
federal grounds, thus rendering unnecessary review of the fed-
eral due process issue by this Court. Second, if this Court were
to grant review and reverse on the ground that the mass joinder
endorsed by the lower court violates due process, that would
necessarily terminate respondents’ current lawsuits, which
involve hundreds of improperly joined parties. Nor is this all.
Because only a tiny fraction (2%) of the individual respondents
would have proper venue if they refiled their lawsuits indi-
vidually in the courts in which these mass lawsuits are pending
(see Pet. 4-5, 14, 17 & n.20, 18), reversal would have the further
effect of eliminating at least 98% of respondents’ claims from
the dockets of the pertinent counties. Thus, reversal would do
more than merely affect “the nature and character” of respon-
dents’ legal claims; it would terminate the existing lawsuit and
bar the vast majority of the individual claims in the current fora.

15

Third, federal policy would be seriously undermined if this
Court declines to exercise immediate review. The right to due
process of law is a fundamental protection in our constitutional
scheme. As explained above, numerous federal courts have
concluded that mass tort claims of the kind involved here cannot
be certified consistent with the requirements of due process and
of Fed. R. Civ. P. 23. In fact, that very conclusion was reached
in these cases by federal courts before the present lawsuits were
filed. A clearer example of subverting federal policy is thus
difficult to imagine.®

The decision below is also reviewable under Mercantile
National Bank v. Langdeau, 371 U.S. 555 (1963). That case
involved an action brought in the Texas courts by a receiver for
an insurer in liquidation against two national banks and numer-
ous other defendants. The national bank defendants claimed
that, under a federal statute, they could not be sued in Travis
County, Texas, and that venue was proper only in Dallas
County. The trial judge overruled that objection, and the Texas
Supreme Court upheld that ruling. Notwithstanding the obvi-
ously interlocutory nature of the Texas Supreme Court’s deci-
sion, this Court exercised jurisdiction under Section 1257.

In reaching that result, the Court explained that the banks
had raised a “a substantial claim * * * that a federal statute,
rather than a state statute, determines [venue].” 371 U.S. at
558. Ifthe banks were correct on the merits, moreover, the law
would “prohibit[] further proceedings against the defendants in
the state court in which the suit is now pending.” Jbid. The
issue of whether venue was proper, this Court added, “is a sep-

* See also Calder v. Jones, 465 U.S. 783, 788 n.8 (1984) (exercising
jurisdiction over interlocutory decision of state court that rejected due process
challenge to exercise of personal jurisdiction); Shaffer v. Heitner, 433 U.S.
186, 195 n.12 (1977) (same); Rosenblatt v. American Cyanamid Co., 86 S.
Ct. 1, 2-3 (1965) (Goldberg, J., in chambers) (on petition for a stay, stating
that state decision rejecting due process challenge was final under
Section 1257 because, among other things, it threatened a serious erosion of
national policy).

16

arate and independent matter, anterior to the merits and not en-
meshed in the factual and legal issues comprising the plaintiffs’
cause of action.” Jbid. Finally, the Court explained, it would
“serve[] the policy underlying the requirement of finality in 28
U.S.C. § 1257 to determine now in which state court [the banks]
may be tried rather than to subject them, and [the receiver], to
long and complex litigation which may all be for naught if
consideration of the preliminary question of venue is postponed
until the conclusion of the proceedings.” Jbid.

This case is quite similar. Here too, petitioner has raised a
substantial question of federal constitutional law concerning the
legality of Mississippi’s mass joinder procedure. The Missis-
sippi Supreme Court has considered and emphatically rejected
petitioner’s due process arguments. If petitioner is correct that
the extraordinary proceedings below violate due process, proper
application of the Constitution would terminate the pending
lawsuits in their current form and, because of Mississippi’s
venue rules, “prohibit[] further proceedings” by the vast
majority of the individual respondents “in the state court in
which the suit[s are] now pending.” Moreover, the joinder
issue, like venue, is an important threshold matter that is
anterior to the merits. Although a determination of the question
presented here obviously would require a basic understanding
of the respondent’s allegations and why they cannot be said to
arise out of the “same transaction or occurrence,” the principal
focus of the legal analysis would be on whether Mississippi’s
mass joinder procedure abandons safeguards historically ob-
served in this country, deprives litigants such as petitioner of a
fair trial, and flunks the test set forth in Mathews v. Eldridge,
424 U.S. 319 (1976).

Here, even more than in Langdeau, it would “serve{] the
policy underlying the requirement of finality in 28 U.S.C.
§ 1257 to determine” the joinder question “now * * * rather
than to subject [petitioner] * * * to long and complex litigation
which may all be for naught if consideration of the preliminary
question * * * is postponed until the conclusion of the proceed-
ings.” 371 U.S. at 558. If anything, the burdens on petitioner

17

here will be far greater than the burdens on the two national
bank defendants in Langdeau. Indeed, without this Court’s
intervention, petitioner will face the prospect of more than a
hundred sequential trials by groups of misjoined respondents.
See Pet. 8-9, 17,21. Nor is that all. The effect of the Missis-
sippi Supreme Court’s decision will predictably be felt well
beyond the cases involved here. Not just petitioner, but scores
of other business defendants, will be forced in countless other
lawsuits filed in rural Mississippi courts to undergo proceedings
that violate fundamental norms of due process. For that reason
as well, this Court should treat the decision below as final
within the meaning of Section 1257.

B. Practical Considerations Strongly Favor Review In
This Case

Even if the Court concludes that this case does not fit per-
fectly within one of the established categories of “final deci-
sions” described in Cox Broadcasting, it still can — and should
— exercise jurisdiction under 28 U.S.C. § 1257. This Court has
long applied a “practical rather than a technical construction” to
determining finality. Cox, 420 U.S. at 478 & n.7. Under the
Court’s “intensely practical approach” to finality issues
(Mathews, 424 U.S. at 331 n.11), the decision below is in every
practical sense the final word of Mississippi’s highest court.

This is not a case where the highest court of a State has de-
clined to entertain a discretionary interlocutory appeal, leaving
in place the decision of an intermediate state appellate court that
might be subject to review, and correction, by the state supreme
court in some future appeal. Compare California v. Rooney,
483 U.S. 307, 314 (1987) (per curiam) (“Giving the California
Supreme Court an opportunity to consider the issue in a case
that properly raises it is a compelling reason for us to dismiss
the petition.”). In the decision below, the Mississippi Supreme
Court considered, and squarely rejected on the merits, the due
process objections to mass joinder. Any revisitation of that
issue in some distant return trip of this case to the Mississippi

18

Supreme Court would have to overcome the force of the law-of-
the-case doctrine.’

Second and more important, there is a substantial likelihood
that, if the Mississippi Supreme Court’s decision is allowed to
stand, the denial of certiorari will spell the effective end to this
litigation. As the Seventh Circuit has explained in a closely
related context, companies that face a large certified class and
the possibility of enormous damages are “under intense pressure
to settle.” Jn re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298
(7th Cir. 1995) (Posner, C.J.); see also Report of the Advisory
Committee on Civil Rules and the Working Group on Mass
Torts, 187 F.R.D. 293, 305 (1999) (“[ A] ggregation often creates
an ‘all or nothing’ risk that defendants find unbearable,” even
where “the class claim is weak or the settlement terms are
otherwise unjustifiable.”); Castano v. American Tobacco Co.,
84 F.3d 734, 746 (Sth Cir. 1996) (class certification “dramati-
cally affects the stakes for defendants,” “makes it more likely
that a defendant will be found liable,” and “creates insur-
mountable pressures on defendants to settle”); Pet. 26. Ifa
company determines (as many do) that it simply cannot afford
to “roll the[] dice” with a jury, and settles the lawsuit, “the class
certification — the ruling that will have forced them to settle —
will never be reviewed.” Rhone-Poulenc, 51 F.3d at 1298. The
same is true of the Mississippi Supreme Court’s joinder deci-
sion in this case. It may well escape review — not only here
but in scores of other lawsuits filed in Mississippi — for the
simple reason that companies are unwilling to proceed to trial

’ Of course, application of Mississippi’s law-of-the-case doctrine by the
Mississippi Supreme Court in a later appeal in this case would not preclude
this Court’s review of the due process issue at that time. See Hathorn v.
Lovorn, 457 U.S. 255, 261 (1982). But cf. Note, The Finality Rule for
Supreme Court Review of State Court Orders, 91 HARV. L. REV. 1004, 1014
(1978) (arguing that “the independent and adequate state grounds doctrine
and the rule of finality are of equal authority as limitations on the jursidiction
of the Supreme Court” and that “there is no principled reason for
compromising one out of a desire to avoid giving effect to the other”).

19

under the egregiously unfair ground rules endorsed by the
Mississippi Supreme Court in this case.

This Court has not hesitated to take account of such prac-
tical realities. For example, in Local 438, Construction & Gen-
eral Laborers’ Union v. Curry, 371 U.S. 542 (1963), this Court
exercised jurisdiction over a decision of the Georgia Supreme
Court reversing the denial of a temporary injunction. Applying
a “practical rather than a technical construction” to 28 U.S.C.
§ 1257, the Court rejected the argument that it should await a
request to review a ruling by the state courts on a permanent in-
junction, explaining: “The truth is that authorizing the issuance
of a temporary injunction, as is frequently true of temporary in-
junctions in labor disputes, may effectively dispose of petition-
er’s rights and render illusory his right to review here * * *.”
371 U.S. at 550. The same can be said here. See also Mathews
v. Eldridge, 424 U.S. 319, 332 (1976) (“statutorily created
finality requirements should, if possible, be construed so as not
to cause crucial collateral claims to be lost and potentially
irreparable injuries to be suffered”).

In the Chamber’s experience, this case is illustrative of the
recent wave of multistate class actions and other mass litigation
filed in the state courts — many of which no federal court
would allow. These cases often present serious threats to the
federal constitutional rights of business litigants. Given the
practical realities of such litigation, the Chamber is concerned
to preserve some meaningful ability of business litigants em-
broiled in such litigation to seek review in this Court.
Although, as explained above, there are several special features
of the decision below that render it “final” as a practical matter
under 28 U.S.C. § 1257, the broader category of class
certification decisions and other threshold aggregation decisions
by the state courts should not be regarded as falling auto-
matically outside this Court’s jurisdiction.

20

CONCLUSION

For the foregoing reasons and those stated in the petition
for a writ of certiorari, review should be granted in this case.

Respectfully submitted.

STEPHEN A. BOKAT Roy T. ENGLERT, JR.
ROBIN S. CONRAD ALAN E. UNTEREINER*
JOSHUA A. ULMAN Robbins, Russell, Englert,
National Chamber Orseck & Untereiner LLP
Litigation Center, Inc. 1801 K Street, N.W.
1615 H Street Suite 41] |
Washington, D.C. Washington, D.C. 20006
(202) 463-5337 (202) 775-4500

JULY 2001 * Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1913%3A6. Public record. Not legal advice.