We have previously reported on the Sixth Circuit’s affirmation of a class certification decision in In re Whirlpool Corporation Front-Loading Washing Products Liability Litigation, which involved washing machines that allegedly were susceptible to mold and mildew. We also reported on Whirlpool’s en banc petition, and the five amicus parties that supported the petition. The Court recently rejected each of those amicus briefs (one of which was authored by Squire Sanders), which is somewhat surprising as it usually accepts such briefs as a matter of course.
Regardless of the merits, Whirlpool’s motion for reconsideration of the Court’s amicus decision contains an interesting empirical analysis of amicus practice before the Sixth Circuit. According to this filing, in the past five years, amicus parties have tried to file 207 amicus briefs in 153 cases, and the Court only refused to accept 14 of those briefs (in 11 cases). Whirlpool notes that 6 of those denials involved procedural flaws, such as failing to follow the appellate rules, and that none of the denials involved a “leading business or professional organization.” In some of the others, the reason for the denial is clear on the face of the motion for leave to file itself (usually in the explanation of the amici’s interest).
Looking further at Whirlpool’s data, we found that 29 cases over the five year period attracted more than one amicus brief, and that only 7 cases attracted 4 or more such briefs. Of those cases with multiple amicus briefs, the only case where the Sixth Circuit refused to accept the briefs was EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School (09-1134) (the briefs were submitted to support en banc reconsideration). The Supreme Court, of course, ultimately took that case and ended up reversing it. Though recent scholarship has muddied the waters a little, the presence of amicus briefs has long been recognized as an indicator that the Supreme Court is more likely to grant certiorari. Multiple amicus briefs generally (but not always) indicate that a case will have an important impact well beyond the parties.
Presumably, amicus briefs may signal to circuit courts that a case may raise issues of “exceptional importance” for en banc review under Rule 35. In another post, we will look at whether there is empirical evidence that amicus briefs influence the decisions to take a case en banc.
