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How to Deal with a $3 Trillion Bully

posted by Adam Levitin

I don't like bullies.  And I just ran into a $3 trillion one.  JPMorgan Chase Bank, armed with six partners at two AmLaw 100 firms (Wilmer Hale and McGuire Woods) took the truly unusual step of filing an objection to an amicus curiae brief I filed in a 9th Circuit case called McShannock v. JPMorgan Chase Bank N.A. in support of neither partyChase objects because the brief is late (which it is) and supposedly irrelevant to the disposition of the case. So why is Chase spending thousands of dollars on attorneys fees to object to an irrelevant brief, particularly when it claims no prejudice from the late filing?

McShannock involves the question of whether federal preemption of a state interest-on-escrow law under the Home Owners Loan Act of 1933 is assignable along with a mortgage. There's no question it seems about the whether there is preemption of the state law when the mortgage is in the hands of its originator, a federal savings association, but whether the assignee (which happens to be a national bank, which operates under a separate statutory scheme) picks up HOLA preemption is another matter. Lower courts have been split on the issue, and the District Court opinion in the case was very thorough in its consideration. 

I file amicus briefs on occasion, frequently proceeding pro se. It's something I do when I think I have something valuable to contribute to a case; I don't get paid for the work, and it takes time away from other things like family and paid work, but I do it because I think it matters that courts get the law right. Over the past couple of years, I've filed four amicus briefs dealing with the so-called "valid-when-made" doctrine. These are essentially historian's briefs, alerting courts to the spurious pedigree of the doctrine.

I didn't opine on that ultimate question about the assignability of federal preemption in my amicus brief in McShannock.  Instead, I wrote an amicus brief in support of neither party (insofar as I am not urging any particular disposition of the case). My amicus brief was limited to addressing an issue raised by a trio of institutional amici (the Bank Policy Institute, the American Bankers Association, and the US Chamber of Commerce) who filed a brief in support of Chase.  Specifically, Chase's amici (but not Chase) argued valid-when-made, and I wrote a brief to urge the Court to avoid the issue as unnecessary for the disposition of the case and with far-ranging policy implications that had not been briefed.  As an alternative, I pointed out the dubious historical background of the doctrine.  

So why is Chase objecting? I can only speculate. It might be related to trying to preserve the valid-when-made argument for other litigation.  If so, I guess I should be flattered that Chase is so worried about my historian's brief.  Or it might relate to an agency problem that can affect litigation. Or maybe Chase is just a bully.  

I can't say with any confidence how the Court will rule on the admissibility of my brief. But I know that Chase's objection makes it a heckuva lot more likely that it will get noticed. So let me offer Chase this Pro Tip: remember the Streisand effect.  

For those interested, here are my motion and brief. Chase's response is here. My reply is here. More coverage from Law360 here


This is hilarious. Chase is making sure that lots of people, including the judges, pay close attention to your brief. I hope the court ends up paying close attention to your history.

So you were late AND your briefing is not important to resolve the case? Sounds to me like JPMorgan actually has a really good point here!

So why oppose an amicus brief in support of neither side that is irrelevant and if the late filing has caused on prejudice? JPM doth protest too much.

JPM seems to see the brief as being relevant and in support of plaintiffs. But if that's the case, it's really only two days late (call it a brief in support of plaintiffs, which changes the relevant deadline). That sort of delay is readily excusable for an individual academic amicus (as opposed to an institutional amicus) who is just involved to help out the court, not the advance the interests of the members of my trade association, etc.

Maddening – The Unfriending of the Amicus

In Texas state courts we don’t have an amicus filing deadline, but wait …

… I have a tale or two, too.

Amicus briefs are routinely efiled in the Texas Supreme Court (SCOTX) and less often in the intermediate COAs. The rules are more relaxed than federal: No deadline. No party consent needed either. See Tex. R. App. P. 11. Letters are routinely accepted, even from ordinary people (nonlawyers), and even though TRAP 11 says that amicus curiae briefs have to comply with the same rules of form as apply to the parties.

By now I have probably submitted more than two dozen amicus briefs and letters in Texas appellate courts, a majority of them in consumer cases, broadly defined. Only two (2) of them drew formal objections, and both were by banks. Both came in appeals from judgments in consumer collection cases, and the defendants/ appellants were unsurprisingly broke and lawyerless.

In the first amicus unfriending bid, Discover Bank (Zwicker & Associates) did not even bother to serve its motion targeting the amicus brief on its submitter. In it, they invoked Judge Posner against a pro se litigant that I was trying to help, and argued that the amicus was improper because it just duplicated the anticipated arguments of the appellant (whose brief was struck because he did not know to draft a proper one). The Dallas Court of Appeals granted the motion anyhow (in part) and refused to consider the amicus brief pursuant to TRAP 11, but did not remove it from the online docket. The pro se appeal was then dismissed due to the absence of proper briefing, with the following explanation:

MEM OP. EXCERPT: In his brief, appellant complains he was not aware of appellee's motion for summary judgment until after the trial court ruled on it. Appellant does not include any citations to the record to support his allegations, nor does he include citations to any legal authority. Consisting of only four pages, the brief is incomplete, leaving us to speculate or guess as to the contentions being made and whether they are meritorious. Because appellant has not provided the Court with existing legal authority that can be applied to the facts of the case, his brief fails. See id. at 896. Appellant has failed to comply with the briefing requirements of our appellate rules after being given an opportunity to do so. Accordingly, we grant appellee's motion to dismiss and dismiss the appeal. See TEX. R. APP. P. 38.8(a)(1); 42.3(b), (c). [Texas COA Case No. 05-17-01442-CV]

In the second unfriending incident, Wells Fargo objected to the amicus brief because the pro se appellant copied it in its entirety. The chief justice (whom I am not going to mention here by name) overruled the objection to the amicus brief itself, but struck the pro se appellant’s copied version and eventually dismissed the appeal for nonpayment of fees even though the trial court judge had signed an IFP order permitting him to proceed without payment of costs. Go figure. When there is a will to kick an underdog, a way can be found.

In another Wells Fargo appeal, the Bank filed a declaration of release of judgment, and mooted the appeal that way, but the court dismissed the appeal because the pro se appellant had not filed a TRAP-compliant brief of his own.

Having an amicus brief challenged and potentially struck is a professional slight, no doubt, not to mention a high-quality brief by a prominent law professor with requisite subject-matter expertise. (Which I am not, and my briefs were template-based, with standardized arguments, only one of them novel, but also made in several companion cases).

But then again, there is an upside: Why would BigBank bother if they didn’t think there was merit in what the amicus had to say? There must have been something worth suppressing. Something worth having censored …

... like a good argument that the Valid-When-Made Doctrine is a modern manufacture, if not a sham. Albeit an ear-pleasing one with intuitive appeal (even if Predatory-When-Made might be the more accurate moniker, in the rent-a-charter context at least).

When the merits of the amicus submission are to be avoided, the way to go is of course to invoke some formal defect or procedural failure, like untimely submission. - Hardly surprising.

So, Congratulation! The Bank’s amicus opposition seems to qualify as a consumer advocacy badge-of-honor of sorts.

Wolfgang P. Hirczy de Mino, Ph.D. (Political Science)

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