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The ins and outs of amicus briefing: Fitting the puzzle of amicus briefs together in a case.

Byline: Mary-Christine (M.C.) Sungaila

In this series, we have examined the increasing influence of amicus briefs and what makes an attractive amicus brief request to organizations who file such briefs regularly. In this final piece of the series, we will examine how to align the various amicus briefs in a case to tell the most effective story.

At the petition or discretionary review stage: In order to convince a Supreme Court to grant review in a case, the most important factor amici-wise is to alert the court that groups well beyond the parties have an interest in the case and urgently need clarity and guidance on the law in that area. This may mean it is helpful for amici to further explore a circuit split on an issue and describe the real world impact of that continuing split. It may also mean, in a case where there is an issue of industry-wide importance but not yet a split of authority on the issue within a jurisdiction, having industry weigh in to explain the importance of and urgent need for clarity on the issue.

One example, from my own practice: Taylor Patterson claimed that Domino's, as the franchisor of thousands of pizza stores across the nation, should be held responsible for sexual harassment she experienced from a fellow employee over a two-week period when she worked at a Thousand Oaks Domino's store owned and run by franchisee Sui Juris. The trial court granted summary judgment in favor of Domino's Pizza LLC, Domino's Pizza Franchising and Domino's Pizza, Inc. (collectively, Domino's), on the grounds that Domino's did not have the power to control day-to-day operations at Sui Juris; rather, Sui Juris, as the franchisee, had the power to hire, fire and train employees, and therefore Domino's could not be vicariously liable for the alleged harassment. The court of appeal reversed.

Domino's sought review from the California Supreme Court, asking the court to determine whether a franchisor can be held vicariously liable for the acts of a franchisee's employee where the franchisor did not exercise control over the day-to-day details concerning the type of conduct giving rise to the plaintiff's claims. The California Supreme Court had never decided a franchise case before, and there was no active, ongoing split between California appellate courts concerning the standard -- only the Patterson case and an older court of appeal case that appeared to take different approaches to the issue. However, the issue of franchisor vicarious liability was being decided in other courts across the nation, which weighed in favor of the California Supreme Court providing guidance as well. Amicus letters from the International Franchise Association, National Council of Chain Restaurants, and individual companies such as Jack in the Box, however, were able to demonstrate the industry's keen interest in having the court decide the issue now, rather than waiting for it to percolate through the intermediate appellate courts.

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On the merits: The need to avoid overlap and repetition is as important among amicus merits briefs as it is between amicus briefs and the party brief it is supporting. It is not helpful to have three amicus briefs that say exactly or nearly the same thing, even if it may be helpful to have the three organizations filing the briefs appear in the case.

There are two ways to prevent repetition among amicus briefs. First, counsel for the party may suggest areas for amicus support to potential amici at the outset, either individually or collectively, then keep track of which amicus plans to argue which points. If there appears to be potential for repetition, party counsel can alert other amici to that before the briefs have been drafted and encourage communication between the two overlapping amici. Second, if there is no way to avoid overlap, amici can consider joining forces on a brief.

Party counsel may have an idea of the different voices and concepts she would like to have presented by amici at the outset. This may mean that she will reach out to a constellation of amici and solicit support expressly to buttress particular policy points that could be better made by a group beyond the parties.

In the Patterson v. Domino's case, the International Franchise Association (IFA) (whose members include both franchisors and franchisees) and individual franchisees filed amicus briefs explaining how a rule of expanded liability would lead to unwelcome changes in the franchise relationship, and reduce franchisor advice and support for franchisees, which was an important part of the bargain for franchisees.

Ultimately, the Supreme Court, in a 4 to 3 opinion, agreed that summary judgment was properly granted in favor of Domino's, and clarified the scope and application of the "means and manner of control" test for franchisor vicarious liability.

The Court flatly rejected the contention that the existence of a comprehensive franchise operating system alone establishes the kind of relationship that can give rise to franchisor vicarious liability for the conduct of a franchisee's employee, concluding that "a contrary approach would turn business format franchising on its head." The amicus briefs from the IFA and franchisees lent important support to that reasoning.

Amicus briefs, carefully crafted and designed to intertwine but not overlap with either the party's brief or other amici, can fill in important aspects of the story on a case and help obtain discretionary review as well as a victory on the merits.
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Publication:Inside Counsel Breaking News
Date:Mar 5, 2015
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