It’s annoying – having your opponent on a major appeal not only preserve specific issues, but go on to add to its notice of appeal some boilerplate purporting to “incorporate by reference” who knows how what or how many issues allegedly raised by anybody at any stage of the litigation. To us, that sort of thing defeats the whole purpose of the “notice” part of a notice of appeal.
But fortunately we’ve not really had to go beyond annoyance, because our opponents haven’t actually attempted to rely on that kind boilerplate when push comes to shove on the appeal.
Seems we’ve been lucky.
Still, it’s nice now to have some precedent right on point. In In re Insurance Brokerage Antitrust Litigation, 579 F.3d 241 (3d Cir. 2009), the court put the kibosh on the practice of “preservation” of issues by incorporation. IBA involved an appeal by objectors to a class action settlement, but it could have been any kind of reasonably complex case. One of the appellants, in addition to raising specified issues, also attempted to argue points made only by other parties – claiming that it could “incorporate the motions, responses, briefs, declarations and exhibits filed by the Plaintiffs and Defendant” in connection with the relevant proceedings. 579 F.3d at (who knows, Lexis copy at *43).
Thankfully the Court of Appeals said “no.” An appellant can’t preserve issues without raising them itself, and (equally importantly) doing so “with at least a minimum level of thoroughness.” Id. at *47.
Absent exceptional circumstances, this Court will not consider issues raised for the first time on appeal. For an issue to be preserved for appeal, a party must unequivocally put its position before the trial court at a point and in a manner that permits the court to consider its merits. A fleeting reference or vague allusion to an issue will not suffice to preserve it for appeal, so the crucial question regarding waiver is whether defendants presented the argument with sufficient specificity to alert the district court.
Id. at *46 (lots of citations and quotation marks omitted).
We’ve seen this kind of language before, but this time it’s in the specific context of an attempt at blanket incorporation of legal issues raised by other parties. So now it’s clear, at least in the Third Circuit, that an appellant can’t try to hedge its bets with boilerplate references to God knows what.
So remember IBA the next time you’re faced with an unprepared appellant who wants to throw in the proverbial kitchen sink. We will.