by Deepak Gupta
In Safeco v. Burr and GEICO v. Edo, set for argument on January 16, the U.S. Supreme Court will decide whether a "willful" violation of the Fair Credit Reporting Act can be established by proof that the defendant recklessly disregarded the law. My colleague Scott Nelson, who is counsel for the respondents in both cases along with Scott Schorr of Portland, Oregon, has already summarized the case in this prior post and posted the the decision below, the petitions in Safeco and Geico, and our Brief in Opposition.
The other side's briefs have just been filed: two insurance company petitioners' briefs, the Solicitor General's brief, and a slew of industry amicus briefs--for a whopping total of 14 briefs in all. This is a perfect illustration of a point made by Brian Wolfman and Paul Bland at a panel on Supreme Court litigation in Miami this past weekend: Does anyone really believe that the Justices will have the time to carefully study all of these briefs?
(A sidebar: On the problem of amicus overload at the Court, see these two articles. Justice Ginsburg is quoted as saying that "she has her law clerks arrange the briefs into three piles: must-read briefs; those she could skim or read selected pages from; and then, the 'skip' pile that she does not need to read at all. The first pile, she said pointedly, is 'very thin.' The largest pile, she said sheepishly, is the 'skip' pile." Needless to say, when you have 14 briefs on one side of the case, the odds that a good number will end up in the 'skip' pile is pretty high.)
Now back to the FCRA cases. Thanks to the ever-resourceful folks at SCOTUSblog, who had electronic copies of all of the top-side briefs even before we were served with them, we are are able to post links to a complete set of filings in the case thus far. Here are the petitioners' filings: Petitioner's Brief in Geico by Maureen Mahoney of Latham & Watkins, Petitioner's Brief in Safeco by Michael Kellogg of Kellogg, Huber, the Geico Joint Appendix, and the Safeco Joint Appendix.
One amicus brief the Justices are always sure to consider carefully is the Solicitor General's brief, which in this case is joined by the Federal Trade Commission. Although the brief's cover says it supports vacatur and reversal, you might be surprised at what you find inside. Here's how the summary of argument begins:
Under the FCRA, a person willfully fails to comply with the law if he or she acts knowingly or in reckless disregard of the Act’s requirements. For decades, this Court has repeatedly held that the term “willfully” in civil statutes encompasses not only knowing, but also reckless, disregard of the law or the rights of others. That familiar pattern includes statutes that were enacted contemporaneously with the FCRA and that share its focus on compliance with laws protecting federally created rights. In the absence of a contrary indication in the text—and there is none in the FCRA—this Court’s settled practice is to assume that Congress hewed to that pattern, rather than departed anomalously from it. That ordinary reading of “willfully” also comports with the FCRA’s structure, which separately carves out for more serious treatment certain violations committed “knowingly,” a limitation that would be meaningless if “willfully” were already confined to violations of known legal standards.
The brief goes on to say, for unconvincing case-specific reasons, that the outcome should be reversal and vacatur, but the key point is this: The government has effectively embraced the core legal analysis of the decision below!
Interestingly, the SG has moved for permission to participate in the oral argument and the petitioners--despite the government's position--have agreed to let the SG's time come entirely out of their time, which is already split between Geico's and Safeco's separate counsel.
The industry amicus briefs, of course, do not agree with the government's analysis. You can read all of them here--but do you really want to?
American Insurance Association (by Seth Waxman, Wilmer Cutler)
Consumer Data Industry Association
Farmers' Insurance Company of Oregon
Financial Services Roundtable, U.S. Chamber of Commerce, Business Roundtable, Mortgage Bankers Association, American Bankers Association, etc. (by Beth Brinkmann, Morrison & Foerster)
Ford Motor Company (by Walter Dellinger, O'Melveny & Myers)
FreedomWorks Foundation, formerly Citizens for a Sound Economy (by Gene Schaerr, Winston & Strawn)
Mortgage Insurance Companies of America and Consumer Mortgage Coalition
National Association of Mutual Insurance Companies
Property Casualty Insurers Association of America
(Where a brief is by a top Supreme Court practicioner, I've noted that fact parenthetically.)
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