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Saturday, February 03, 2007



One small sidenote: Judge Selya says that the court appreciated the assistance of an "erudite" amicus brief filed in the case. It's not often that a court goes out of its way to mention that an amicus brief was particularly helpful. The brief was filed on behalf of the American Bankers Association, American Financial Services Association, America's Community Bankers, Consumer Bankers Association, Consumer Mortgage Coalition, Housing Policy Council of the Financial Services Roundtable, and Mortgage Bankers Association, and it apparently pressed the position that TILA recission class actions should never be certified. There was no amicus brief filed on the consumer side of the case.

This is a symptom of a bigger problem. On top of all the other imbalances in the resources available to large corporate law firms versus consumer advocates, there is the fact that trade associations like these--whose interests and perspectives are no different from the defendants-- can pay firms to write amicus briefs, whereas consumer advocacy organizations must either rely on their overstretched in-house staff lawyers or on pro bono assistance from like-minded private lawyers.

Often, briefs filed by trade associations are "me-too" briefs that don't add much, often merely stressing the supposed "importance" of one issue or another. ("The economy will fall apart it you recognize this claim.") But it's particuarly disturbing when (a) the court goes out of it way to note that such a brief was helpful and (b) there was no brief at all on the other side, and (c) the court adopts a rather sweeping position that cuts off an important remedy for consumers.

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