Posted by Jonathan Adler:
Judge Sentelle Decries APCC's About-Face:
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1226080397
It is not often that a federal appellate judge criticizes the
litigation strategy employed by a party before the court. It is also
not very often that a party reverses its position in the midst of
litigation after prevailing in its initial position. Yet that is what
APCC Services appears to have done, much to the displeasure of Chief
Judge David Sentelle of the U.S. Court of Appeals for the D.C.
Circuit. He authored a strongly worded concurring opinion repleased
today in [1]NetworkIP LLC v. FCC.
I write separately only to express my dismay at the events
referenced in footnote 2 of that opinion. As NET has brought to the
attention of the court, APCC, at the current stage of this
litigation, has taken a �sudden reversal of its position that all
of the funds from payphone litigation flow through to its payphone
owner clients.� As the record in this litigation will sustain, NET
is absolutely correct. APCC adhered to that position sufficiently
strongly to occasion the considerable allocation of resources of
this court to a divided opinion in [2]APCC Servs., Inc. v. Sprint
Commc�ns Co., L.P., 418 F.3d 1238 (D.C. Cir. 2005). While the court
divided on other questions as well, my entire dissent was devoted
to the basic question: whether an aggregator has standing to sue
when the assignment for purposes of collection results in complete
remititur to its principles with no retention by the aggregator.
Id. at 1250-53. This was the position taken by APCC before us in
that litigation and one which occasioned considerable devotion of
the resources and time of the court.
More shockingly still, APCC defended that position through the rare
grant of a petition for certiorari to its opponent on that very
issue in [3]Sprint Commc�ns Co., L.P. v. APCC Servs., Inc., 128 S.
Ct. 2531 (2008). It is difficult to imagine the cost in terms of
the Supreme Court�s scarce resources occasioned by litigating what
apparently was a false position on behalf of the winning litigant.
What makes APCC�s bizarre conduct even more difficult to understand
is that their litigation position in that case would have been
stronger had they not taken the now renounced position that they
had no retainage in the assigned recovery. Their standing then
would have been clear, and they not only would have prevailed
anyway, they would have prevailed more quickly. Whether this
strange litigation strategy constituted an apparently successful
attempt to gain an advisory opinion for some other cause, I cannot
know. However, I share the dismay of the litigant NET, mixed with a
bewilderment as to why this came about.
References
1. http://pacer.cadc.uscourts.gov/common/opinions/200811/06-1364-1148145.pdf
2. http://pacer.cadc.uscourts.gov/docs/common/opinions/200506/04-7034a.pdf
3. http://www.law.cornell.edu/supct/html/07-552.ZS.html
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