A New Type of Amicus Brief: No Clients, No Side Taken

A New Type of Amicus Brief: No Clients, No Side Taken Photo: Diego M. Radzinschi / NLJ Goldstein & Russell's Thomas Goldstein

A little-noticed brief in a case before the U.S. Supreme Court this fall may launch a new genre of friend-of-the-court filings: written by a law firm on behalf of no client—not even law professors—and in support of neither side.

Or it might flop, its author Thomas Goldstein of Goldstein Russell readily acknowledges. “I’ve never heard of it being done before—the court is used to lawyers having clients,” he said in an interview. “But that has never deterred me from doing something before.”

Indeed Goldstein has shaken up the staid Supreme Court bar more than once—cold-calling losing lawyers in appeals court cases to drum up business in the 1990s, launching Supreme Court clinics at law schools, and in 2002, creating SCOTUSblog, a resource for high court practitioners and law junkies.

Goldstein says his brief in M&G Polymers USA v. Tackett may be the leading edge of an effort by the bar to assist the Supreme Court in new ways, not necessarily as advocates for a particular party.

The case asks whether health-care coverage for retirees continues indefinitely when the collective bargaining agreement governing benefits is silent on the issue. A small number of familiar organizations filed amicus briefs in the case, ranging from the U.S. Chamber of Commerce to the ERISA Industry Committee and the Society for Human Resources Management. No argument date has been set.

Goldstein, who said he has been looking for a case like M&G for years, thought it would be helpful to write an amicus brief that would give the court data that parties or other amici might not provide. Namely, a survey of collective bargaining agreements that tallies how many contain different provisions that lower courts have looked for in determining whether retiree benefits vest.

Even though he had no client in the case, Goldstein surveyed 100 collective bargaining agreements and told the court the results in his brief. As court rules provide, he sought and got permission from the parties to file the brief, but has received no feedback from them.

Most lawyers in the case declined or did not respond when asked by Supreme Court Brief to comment about the brief.

Linda Coberly, chair of the appellate and critical motions practice at Winston & Strawn and counsel of record for an amicus brief for the Chamber of Commerce and the Business Roundtable in M&G Polymers, declined to comment on the substance of the Goldstein brief.

“As a Supreme Court practitioner, I’ll be interested to see whether the court finds it appropriate and useful to have a law firm file a brief in its own name in a case in which neither the firm nor its clients have any interest at stake,” Coberly said.

Goldstein said he didn’t “attempt to give the court any advice at all. It’s just a bunch of data. I don’t care who wins this case.”

So why do it? Goldstein said the case is one where “the court is being asked to do something practical—how to read different provisions of a contract.” In writing the brief, he thought the parties themselves would focus on the specific agreement at issue, while amicus groups might not feel it was in their interest to give the court broader information about the issue.

“The court is likely to be very concerned about coming up with a workable rule for everyone, not just the parties before them,” Goldstein said. As for amici, sometimes “they are not true amici. They have an ax to grind, a dog in the fight.” In his brief, Goldstein told the justices, “This is the rare true ‘amicus’ brief.”

Looking ahead, Goldstein said he hopes his brief could lead to something akin to the court’s so-called “CVSG” relationship with the U.S. solicitor general.

In cases where the federal government is not a party but might have some relevant things to say, the court often calls for the views of the solicitor general—CVSG for short—in the form of briefs that detail federal practices or other relevant information.

Goldstein posited that in select cases, the court could ask disinterested lawyers—or perhaps an organized Supreme Court bar group—to provide similar briefs when the government is not involved.

Anthony Franze of Arnold & Porter, who has written extensively about amicus participation at the Supreme Court, said Goldstein’s brief resembles the growing number of briefs filed on behalf of law professors. He also said amicus groups with a stake in the case have value. “I think having an interest can, much like Article III standing, help better identify the information that can assist in resolving an issue or dispute,” Franze said.

Asked about Goldstein’s brief, veteran high court advocate Roy Englert Jr. of Robbins, Russell, Englert, Orseck, Untereiner & Sauber said if it provides helpful information to the court, it is “in the very best traditions of the bar.” But he added, “it is far from obvious why this is a good use of the authors’ time.”

Franze wondered the same thing. “Speaking only for myself, I’m just trying to keep up with the cases in which my clients have an actual stake,” he said.

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro.

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