When the Chambers Speak, Courts Listen

In Briefs, Courts by Adam Feldman2 Comments

Since the beginning of 2020, national, state, and local level chambers of commerce have been acknowledged as amici curiae in over 140 federal and state court opinions. This does not even count the number of times the United States Chamber of Commerce filed amicus briefs in the United States Supreme Court (in a previous post I documented the Chamber’s success in the Supreme Court). Furthermore, the various chambers of commerce are not just idle bystanders in litigation as judges often respond directly and indirectly to their arguments.

Judges are keen to do this as chambers of commerce represent deep seated business interests that span the gamut of issues and business types.  Judge Restrepo, for instance, noted the United States Chamber’s presence in Baptiste v. Bethlehem Landfill Company writing “The Chamber of Commerce of the United States of America, the Pennsylvania Chamber of Business & Industry, the Pennsylvania Farm Bureau, and the National Waste & Recycling Association appeared as amici in support of Bethlehem. In their view, the District Court decision preserves the business community’s ability to “coordinate” directly with regulatory agencies, rather than defend numerous private lawsuits, and redress large-scale environmental harms without reducing “investment and quality of goods and services.” Chamber of Commerce Amicus Br. 5, 24-31; see National Waste & Recycling Association Amicus Br. 1,16-19.”

Judges mention national and state level chambers even when they do not have winning arguments. This is evident in William Pryor’s decision in Cherry v. Dometic Corp. where he wrote, “[w]e are unpersuaded by the other arguments raised by Dometic and by the United States Chamber of Commerce as amicus curiae” and in Ohio Supreme Court Justice French’s opinion in State ex rel. Manor Care, Inc. v. Bureau of Workers’ Compensation where he stated, “ [a]mici curiae Ohio Chamber of Commerce and Ohio Self-Insurers Association similarly argue that the bureau should have merely provided for “an equitable adjustment, namely a finding of the underpayment offset by the overpayment.” However, PTD compensation and relief-fund benefits are separate and distinct statutory creatures serving different purposes.”

This diversity of interest is clearly evident when looking at the variety of issue areas their cases spanned during this period (the count is provided by a search in Westlaw which allows multiple areas per case).

While many of these areas are not surprising there are certain exceptions. When is a chamber,for example, involved in litigation classified as criminal? One such example is from Bahamas Surgery Center, LLC v. Kimberly-Clark Corporation which was a case examining whether surgical gowns provided protection from infectious diseases up to their advertised standard.

Now a deeper look at the context of these cases. I previously mentioned that various chambers were involved in cases in both federal and state courts. Here is the breakdown including an examination of the split between the United States Chamber of Commerce and local level chambers.

The U.S. Chamber of Commerce is most involved at the federal level but they are involved in more state level cases than local chambers as well. At the state level, local chambers are nearly as involved as the United States Chamber and both local and national chambers filed briefs in a number of the same proceedings.

As one might imagine, the various chambers filings span the nation.  The following map helps convey the geographic breadth of the chambers’ presences.

Chambers’ involvement correlate with population as they were involved in California more than other states. Still this is not always the case as can be seen with the lower level of involvement in Texas among other states.

Another way to think about involvement is by court. The following graph separates out state and federal courts where the chambers participated.  State courts of all levels are clustered by state name.

Finally, both national and local chambers farm out a majority of briefs to outside firms. Even though the U.S. Chamber of Commerce has a strong litigation wing, it calls on some of the most well-known national litigators to help with its briefs. The following graph shows the firms present on at least two chambers’ briefs (national or local) since the beginning of 2020.

Chambers’ oversize presence in national litigation is augmented by having such notable firms help draft their briefs.  As business arrangements change with swings resonating from the pandemic, expect chambers to be involved in much of the litigation. The types of cases may shift as people continue to work remotely, and this will call for changes in the way chambers approach cases. Even with such changes though, one thing will surely remain the same — where there is high stakes business litigation, you can expect to see a chambers’ brief.

Click here for a look at the data from the post


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