How to Deal with a $3 Trillion Bully


I don't like bullies.  And I just ran into a $3 trillion one.  JPMorgan Chase Bank, armed with six partners at two AmLaw 100 firms (Wilmer Hale and McGuire Woods) took the truly unusual step of filing an objection to an amicus curiae brief I filed in a 9th Circuit case called McShannock v. JPMorgan Chase Bank N.A. in support of neither partyChase objects because the brief is late (which it is) and supposedly irrelevant to the disposition of the case. So why is Chase spending thousands of dollars on attorneys fees to object to an irrelevant brief, particularly when it claims no prejudice from the late filing?

McShannock involves the question of whether federal preemption of a state interest-on-escrow law under the Home Owners Loan Act of 1933 is assignable along with a mortgage. There's no question it seems about the whether there is preemption of the state law when the mortgage is in the hands of its originator, a federal savings association, but whether the assignee (which happens to be a national bank, which operates under a separate statutory scheme) picks up HOLA preemption is another matter. Lower courts have been split on the issue, and the District Court opinion in the case was very thorough in its consideration. 

I file amicus briefs on occasion, frequently proceeding pro se. It's something I do when I think I have something valuable to contribute to a case; I don't get paid for the work, and it takes time away from other things like family and paid work, but I do it because I think it matters that courts get the law right. Over the past couple of years, I've filed four amicus briefs dealing with the so-called "valid-when-made" doctrine. These are essentially historian's briefs, alerting courts to the spurious pedigree of the doctrine.

I didn't opine on that ultimate question about the assignability of federal preemption in my amicus brief in McShannock.  Instead, I wrote an amicus brief in support of neither party (insofar as I am not urging any particular disposition of the case). My amicus brief was limited to addressing an issue raised by a trio of institutional amici (the Bank Policy Institute, the American Bankers Association, and the US Chamber of Commerce) who filed a brief in support of Chase.  Specifically, Chase's amici (but not Chase) argued valid-when-made, and I wrote a brief to urge the Court to avoid the issue as unnecessary for the disposition of the case and with far-ranging policy implications that had not been briefed.  As an alternative, I pointed out the dubious historical background of the doctrine.  

So why is Chase objecting? I can only speculate. It might be related to trying to preserve the valid-when-made argument for other litigation.  If so, I guess I should be flattered that Chase is so worried about my historian's brief.  Or it might relate to an agency problem that can affect litigation. Or maybe Chase is just a bully.  

I can't say with any confidence how the Court will rule on the admissibility of my brief. But I know that Chase's objection makes it a heckuva lot more likely that it will get noticed. So let me offer Chase this Pro Tip: remember the Streisand effect.  

For those interested, here are my motion and brief. Chase's response is here. My reply is here. More coverage from Law360 here