The Minnesota Litigator blog strays from Minnesota and Eighth Circuit jurisprudence to touch on subject matter of interest to the few and the proud who care about appellate procedure — a recent decision from the U.S. Court of Appeals for the Seventh Circuit.
Non-profits, trade groups, and others interested in appellate decisions with far-reaching implications do not have the resources to weigh in, through amicus (“friend of the court”) briefs, on every appellate case that conceivably could impact their interests or industries.
So, consequently, they might want to sit out the briefing of a case and, if the decision is adverse, seek to submit an amicus brief in connection with a petition for reconsideration or petition for en banc review.
(That is assuming the “friend of the court” is (a) aware of the case on appeal from the start, and (b) that the impact of the decision is recognized before the issuance of the appellate opinion — neither of which is a reliable assumption.)
Judge Easterbrook of the Seventh Circuit U.S. Court of Appeals has made clear that such a strategy won’t fly in the Seventh Circuit, rejecting an AARP amicus brief in connection with an ERISA case in reliance on timing requirements for such briefs.
It is beyond the scope of this blog to analyze the implications of the decision for ERISA plans, but perhaps the AARP’s interest in the case and denial of any further review by the Seventh Circuit presages a petition for certiorari to the U.S. Supreme Court in the days to come.