In the latest installment of their Law360 column on noteworthy Federal Circuit decisions, partners Jeremiah Helm and Sean Murray offered commentary on a recent order that demonstrated the importance of incorporating arguments within the established constraints for briefs while practicing before the court.
The authors provide historical context for the outcome in Promptu Systems Corp. v. Comcast Cable Communications LLC, in which the U.S. Court of Appeals for the Federal Circuit issued a sua sponte precedential order emphasizing Rule 28 of the Federal Rules of Appellate Procedure. According to the authors, Rule 28 has a long history at the Federal Circuit, including in a line of cases reflecting “the Federal Circuit’s rule that if an argument is raised in a footnote, it is not preserved.” They further explain that the purpose of this rule is to avoid arguments that “are typically underdeveloped and without adequate citation to either legal authority or the record.”
Outlining historical cases that invoked Rule 28, Helm and Murray maintained that the Federal Circuit “routinely refers to and enforces” the rule, requiring that a “party’s arguments must be raised in the brief with attendant support, and conform to the page and word limits set by the court.” The authors employed this analysis to offer context for Promptu v. Comcast where the appellee tried to include by reference arguments from the brief in another case into their own brief. Ultimately the court denied this attempt, citing Rule 28, a move “completely consisted with the Federal Circuit’s decades long practice […] of vigorously policing any attempt to evade Rule 28’s requirements,” said Helm and Murray.
The authors conclude, “Whether raising barebones arguments in a footnote or via incorporation, practice before the Federal Circuit requires fully developed arguments made within the constraints of the briefing allowed by the Rules of Appellate Procedure and the Federal Circuit.”
Read the full article here.
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