Fed. R. App. P. 28(i) and 32(a)(7)(B)(i); Incorporation of Arguments; Word Limits

A recent Eighth Circuit opinion in the Target Corp. security-breach litigation highlights a disagreement over incorporation of arguments pursuant to Fed. R. App. P. 28(i) and the word limits imposed by Fed. R. App. P. 32(a)(7)(B)(i).

One appellant in the consolidated Target Corp. appeal filed his brief, and six days later filed a letter pursuant to Fed. R. App. P. 28(i) that “joined” portions of another appellant’s brief. When combined, the first appellant’s principal brief and the “joined” portion of the other appellant’s brief exceeded Fed. R. App. P. 32(a)(7)(B)(i)’s word limit.

After one group of appellees challenged the “joined” argument, an Eighth Circuit panel found that the incorporation of argument did not result in a violation of Fed. R. App. P. 32(a)(7)(B)(i), because the rule applied only to principal briefs, and that the incorporation of argument from a separate brief did not result in the principal brief exceeding the word limit. The majority took pains to distinguish Microsoft Corp. v. DataTern, Inc., in which the Federal Circuit held that incorporation under Fed. R. App. P. 28(i) “cannot be used to exceed word count.”

Dissenting, Judge Bobby Shepherd argued that Rule 28(i) “should not be used to undertake end-runs around other procedural rules,” and, citing Microsoft Corp., asserted that permitting the incorporation of argument on these facts would allow the first appellant to “effectively evade Rule 32(a)(7)(B)(i).”

While these decisions offer guidance on this issue in the Eighth and Federal Circuits, appellate counsel may be well advised to proceed with caution in other circuits when the incorporation of arguments under Fed. R. App. P. 28(i) could result in a combined argument that exceeds the limitations of Fed. R. App. P. 32(a)(7)(B)(i).

In Re Target Corp. Customer Data Sec. Breach Lit., ___ F.3d ___, 2017 WL 1573829 (8th Cir. May 2, 2017).

Microsoft Corp. v. DataTern, Inc., 755 F.3d 899 (Fed. Cir. 2014).

_{Josh Jacobson is with the Law Office of Josh Jacobson, P.A. in Minneapolis, Minnesota.}

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