(U.S., filed March 31, 2023) Arguing the Court should review the decision by the Washington Supreme Court because it violates this Court’s precedents by creating an effectively irrebuttable presumption of racism. The decision will create unfair disadvantages for litigants—and particularly corporate litigants—by tying the hands of trial lawyers. 

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(U.S., filed December 15, 2022): Arguing that the Court should grant certiorari to place rational boundaries on the unpredictable and near limitless imposition of “per violation” civil penalties.  Also, the Court should provide a constitutional backstop when the lack of clarity under unfair or deceptive acts and practices (UDAP) laws leads to arbitrary punishment.  Lastly, the court should provide consistency between safeguards governing arbitrary and excessive punishment in other areas. 

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(U.S., filed September 30, 2022): Urging the Court to grant the petition of certiari in order to clarify the proper interpretation of a federal statute (the PREP Act) regulating the nation’s emergency response during a once-in-a-century pandemic and other global health emergencies. The PREP Act should be recognized as a “complete preemption” statute allowing removal of a broad class of tort claims arising from the administration of pandemic countermeasures. The lower court decision undermines the PREP Act’s critical safeguards for front-line responders and creates a circuit split.  

Click to access 2022-09-30-Saldana-Amicus-FINAL13118.pdf

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(U.S., filed September 1, 2021): Supporting the petition for certiari. Arguing that the Court should resolve the conflicting constructions of the Daubert standard. Consistent nationwide evidentiary standards are essential, particularly in the mass tort context. The Ninth Circuit’s approach to Daubert for medical causation conflicts with other circuits, and leads to peculiar results.  Also arguing that the Court should grant certiorari to address the court of appeals’ anomalous preemption ruling. Uniformity in federal preemption—both under FIFRA and beyond—is an issue of immense importance to regulated businesses operating nationwide. The decision below disrupts uniformity, misapplies Bates, and brings confusion to the interpretation of identical preemption language.

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(U.S., filed April 5, 2021): Urging the Court to review Missouri’s landmark decision affirming proper joinder of 22 plaintiffs’ claims, including 15 non-residents’ claims, & imposing a $2.24 billion judgment in talc litigation. While allowing multiple plaintiffs to litigate cases against a single defendant can create a more efficient judicial system, courts also need to ensure defendants’ due process rights are unimpaired.  Juries can be overwhelmed and inflamed by the sheer number of genuinely suffering plaintiffs before them.  Joinder also forces defendants to use limited resources to address issues that affect the entire proceeding, rather than attending to each plaintiff individually.  Finally, juries may have trouble keeping the facts of each plaintiff straight.  

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(U.S., filed March 8, 2021): Urging the Court to address whether FDA regulations permit a manufacturer unilaterally to implement an off-label warning via a CBE or does the addition of an off-label warning require FDA approval.

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(U.S., filed March 27, 2020): Urging the Court to review whether the chain of causation between a manufacturer’s allegedly false statements and end payments for prescription drugs is too attenuated to satisfy RICO’s proximate cause requirement.  Also, to address whether everyone who pays for a product with an alleged latent risk or defect suffer injury sufficient to confer Article III standing.

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(U.S., filed July 26, 2019): Arguing that sua sponte orders by state courts consolidating the claims of 100 or more plaintiffs support removal under the mass action provision of the Class Action Fairness Act of 2005.

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(U.S., November 12, 2018): Supporting a petition for cert, arguing that the Sixth Circuit’s interpretation of Rule 23(c)(4) violated its text and structure and raises serious Seventh Amendment concerns.  Argues that the decision removes the most important limits on class proceedings and would allow district courts to certify “issue classes” essentially at will.

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(U.S., to be filed July 6, 2018): Arguing that the “bare metal” defense should be allowed to be asserted under maritime law.

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(U.S., filed March 26, 2018): Arguing that the lower court improperly ordered a damages-only retrial when the trial record contained strong indications the jury had originally reached an impermissible “compromise verdict.” A compromise verdict requires retrial on all issues so as to not erode fundamental Seventh Amendment guarantees.

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(U.S., filed April 23, 2018): Arguing that the Court should grant cert to clarify a clear circuit split. The Third Circuit’s novel theory of injury-by-inefficiency departs from fundamental principles of Article III standing, and if left undisturbed, the decision below will invite abusive class action litigation.

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(U.S., to be filed in January 2018): Urging the Court to grant the petition for cert to address the materiality requirements of the FCA in Universal Health Services v. U.S. ex rel. Escobar (2016).

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(U.S. to be filed December 22, 2017): Urging the Court to grant the petition for cert to address whether granting an exclusive license as part of a patent settlement can, by itself, represent a suspect “reverse payment.”

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(U.S. to be filed December 22, 2017): Urging the Court to grant the petition for cert and address whether, at the pleading stage, a compromise of a damages claim can be transformed into a “reverse payment” by focusing solely on the value transferred by the manufacturer to the patent challenger, without considering the value such a compromise provides to the manufacturer.

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Graham (U.S., filed October 19, 2017): Arguing that class action defendants have a due process right to a judicial determination of every element of a plaintiff’s claim.  The “actually decided” precondition to preclusion protects this right in the context of multiple adjudications.  Also arguing that the so-called “issue” classes coupled with novel applications of the preclusion doctrine can trample defendants’ due process rights.

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(U.S., filed May 12, 2017): Arguing that Rule 23 (b)(3) authorizes class certification only where there is a practical method for class-wide adjudication that is consistent with due process and the “ascertainability” requirement flows directly from, and is compelled by, Rule 23 (b)(3).  Also arguing that trial by affidavit and claims administrator mini-trials are not legitimate substitutes for proper ascertainability.

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(U.S., filed February 3, 2017): Arguing that it was improper of the court to use a presumption of classwide antitrust injury based on alleged price increases that occurred in an unrepresentative price index.  Also arguing that the Court should grant review to clarify when presumptions may be applied in favor of class certification.

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(U.S., filed January 17, 2017): Arguing that in a 363 sale, the Due Process Clause does not require a seller to notify creditors of the basis for any potential claims against the debtor.  By imposing a novel and unjustifiable notice requirement, the Court is hindering debtors’ ability to sell their assets quickly.  And by threatening buyers with the loss of their “free and clear” protection, the decision deprives estates of a critical tool for maximizing creditor recovery.  The decision will perpetuate the kind of abusive, lawyer-driven litigation that will offer little in the way of relief for the class members and will provide an enormous windfall for the plaintiffs’ lawyers who bring them.

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(U.S., filed November 11, 2016): Arguing for the proper application of personal jurisdiction.

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(U.S., filed November 21, 2016): Arguing for the proper application of “stream of commerce” personal jurisdiction.

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(U.S., filed Mar. 2014): Urging the U.S. Supreme Court to grant certiorari to consider reversing a Third Circuit ruling that allowed tort-based claims under state common law for emissions that EPA allows under site-specific permits pursuant to the Clean Air Act.

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(U.S., filed Mar. 2014): Urging the U.S. Supreme Court to clarify that state class actions for monetary relief, however styled, must provide absent class members with notice and opt-out rights, and must guarantee defendants a full and fair opportunity to be heard on all available defenses.

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No. 14-123 (U.S., filed September 2014):  Urging the United States Supreme Court to hear BP’s appeal of critical class action issues stemming from the 2010 Deepwater oil spill in the Gulf of Mexico.  Specifically arguing that the certification and management of the class violates Rule 23 of the Federal Rules of Civil Procedure and Article III of the Constitution.

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