Cottillion v. United Refining Co., 781 F.3d 47 (3d Cir. 2015). This opinion by Judge Ambro, issued today, affirmed a summary judgment in favor of plaintiffs and a class in an Employment Retirement Income Security Act (“ERISA”) case. This post, however, focuses not on the merits or the intricacies of ERISA that Judge Ambro ably expounded, but on a single emphasized word in a parenthetical that appears on the final page of his opinion. That parenthetical notes that defendant had filed “six 28(j) letters” (emphasis by Judge Ambro).
Federal Rule of Appellate Procedure 28(j) allows parties to submit a letter, whose body may not exceed 350 words, to cite “pertinent and significant authorities” that come to their attention “after the party’s brief has been filed– or after oral argument but before decision.” Rule 2:6-11(d) of the New Jersey Court Rules similarly allows parties to “file a letter calling to the court’s attention, with a brief indication of their significance, relevant cases decided or legislation enacted subsequent to the filing of the brief,” though there is no word limit. Both rules permit the opposing party to submit a response to the newly-cited authority.
Neither rule contains any limitation as to how many supplemental letters a party may file. But Judge Ambro’s express notation that defendant here filed six such letters, and his further choice to italicize that number of submisions, speaks volumes. There can be too much of a good thing, or of something permitted by the rules. Appellate courts may appreciate one, or perhaps two, letters citing supplemental authorities. But submitting too many such letters, especially where, as here, at least one of the supplemental letters cited what Judge Ambro observed was a “non-precedential opinion,” can backfire.
Each supplemental authority letter is almost invariably followed by a responding letter, so the burden on the appellate court is multiplied by two. Though the letters are, by definition, short, they can try a court’s patience. It sometimes even occurs that, after being bombarded with too many such letters, an appellate court will issue an order directing that no further supplemental authority letters may be filed. Judge Ambro’s italics convey a worthwhile lesson: counsel would be wise to “pick their spots,” and to submit supplemental letters only as to the most important new authority.