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March 29, 2017 Top Story

Supreme Court Dismisses Bait-and-Switch Between Petition and Brief

Appeals dismissed when merits brief argued different issue than petition of certiorari

By Joseph Laizure

The U.S. Supreme Court dismissed two appeals set for oral argument because petitioners "persuaded [the court] to grant certiorari" on one issue but "chose to rely on a different argument" in their brief. The court sent a strong signal to attorneys to focus on the question the court agreed to hear, say ABA Section of Litigation leaders.

In Visa, Inc. v. Osborn and Visa, Inc. v. Stoumbos consumers and independent ATM operators sued a larger ATM network over access fee rules set by the network. The U.S. Court of Appeals for the D.C. Circuit reversed the district court's dismissal of the complaints. The courtF held the consumers and ATM operators had sufficiently alleged an illegal agreement between the ATM network's member banks under Section 1 of the Sherman Act. Seeking certiorari, the ATM network petitioned the Supreme Court for review.

The Supreme Court granted certiorari to resolve what petitioners claimed was a circuit split on the elements of conspiracy under Sherman Act. After respondents disputed the circuit split, petitioners filed a brief on the merits characterizing the access fee rules as a permissible action by a joint venture.

The respondents replied that the petitioners had abandoned the circuit split argument in favor of a new theory. Then the Supreme Court dismissed the writs of certiorari, citing a 2015 case in which the court had also dismissed an appeal following shifting arguments.

Shift in Arguments Before Supreme Court Is Unusual

"Petitioners need to keep in mind that courts have finite resources," says Kelli Bills, Denver, CO, cochair of the Rules & Statutes Subcommittee of the Section of Litigation's Appellate Practice Committee. "The U.S. Supreme Court perceived a bait and switch. The court sees this issue that is compelling because there is a mention of a circuit split and a mention of a Sherman Act issue that may touch on many other cases. The decision to dismiss is a warning: Do not craft an issue to get the court's attention and then argue something else," adds Bills.

The Supreme Court accepts about 100 cases a year out of over 7,000 applications for certiorari. "This is a very unusual case," states Thomas J. Donlon, Stamford, CT, vice chair of the Section's Appellate Practice Committee.

"If the court grants certiorari on one of your issues, normally you would be overjoyed. One thinks of appellate briefs as paring off arguments. At the Supreme Court, a case is pared down to a single issue. You cannot come in with a shotgun and ask the appellate court to listen to your six arguments," he maintains. Donlon notes that the situation might be different in criminal litigation where attorneys may have a duty to preserve constitutional issues.

Litigators Must Be Prepared

Courts that have a process for discretionary review, such as certiorari, seek cases that address broader issues. "Certiorari is a specialized form of practice, but there are appellate courts all across the country that use a certification approach," Donlon says. Keep in mind that if a litigator presents two questions for review and the court agrees to hear one, the second question is not before the court, he adds.

Sometimes a court will accept an issue for review but reframe it. "If you want to be persuasive you must discuss the question on the court's terms," Donlon cautions. A certification process gives litigators advance notice of the issue the court wants to hear. Without certification, an attorney may not know what interests the court until oral argument begins.

That means appellate litigators must be prepared. "Try to think through what about the case is going to bother the court," Bills suggests.

Tips for Staying True to Your Case

Litigators should think carefully about the question they want the court to consider. Bills has advice for appellate attorneys looking to avoid dismissal. "This case highlights the importance of the issue statement. Writing the issue statement is often the last thing I do. It is an opportunity not only to state the case in a succinct manner but also a subtle way of persuading the court," she states.

A balance exists between creating a compelling issue and avoiding overstatement. "If you are practicing before a discretionary review court, you are looking to craft an issue that reflects something broader, such as a circuit split. You have to think, what are the implications for the next case," Bills emphasizes.

Although this case was before the Supreme Court, it holds lessons for litigators practicing in other appellate courts. "The analogy for a non-Supreme Court practitioner is oral argument," advises Donlon.

A court may ask questions about something the attorney had not planned on emphasizing. "Practitioners will tell you that the worst thing you can do is say to the court, 'I'll get to that in a minute,' says Donlon."

Litigators who want to avoid dismissal at the appellate level should be aware that courts will not condone shifting arguments. "Preparation is my mantra," concludes Bills. "You avoid trouble by staying true to the case and delivering on the issue that you have crafted for the court." This case makes clear the dangers of failing to heed this advice. "This result is not at all surprising," Donlon says.


Joseph Laizure is a contributing editor for Litigation News.

Keywords: appellate briefs, certiorari, ATM fees

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