The Judicial Conference Advisory Committee Seeks Comments on Proposed Changes to Federal Appellate Rules

The Judicial Conference Advisory Committee is seeking comments on proposed changes to the Federal Rules of Appellate Procedure (as well as proposed changes to other sets of federal rules).  The details are here.

The Federal Rules of Appellate Procedure that are proposed to be amended are Rules 3, 13, 26,1, 28, and 32.  The amendments appear to be relatively uncontroversial.

The proposed amendments to Rules 3 and 13 alter those rules to delete the requirement that the clerk “mail” notice of the filing of a notice of appeal (Rule 3) and that a party appealing from the Tax Court “mail” the notice of appeal (Rule 13).  The term “send” would be used instead.  That would accommodate the fact that electronic filing and service has now been the method of operation for a number of years.

The other, more significant change is to Rule 26.1, with associated minor changes to Rules 28 and 32.  Rule 26.1(a) currently requires non-governmental corporate parties to identify any parent corporation and any publicly-held corporation that owns 10% or more of its stock, or to state that there is no such corporation.  The amendment adds three other disclosure requirements.

First, in criminal cases, the government must “file a statement identifying any organizational victim of the alleged criminal activity.”  There is a good cause exception to that requirement, but the burden is on the government to show good cause.  If the victim is a corporation, the information required by Rule 26.1(a) must be provided as to the victim.  Second, in bankruptcy appeals, the debtor or trustee, or if neither of them is a party the appellant, must “file a statement that identifies each debtor not named in the caption.”  If any such debtor is a corporation, the Rule 26.1(a) information must be provided.  Third, “[a] person who wants to intervene must file a statement that discloses the information required by Rule 26.1.”

As a result of the addition of these new types of disclosure statements, the title of Rule 26.1 would change from “Corporate Disclosure Statement” to “Disclosure Statement.”  Rules 28 and 32, which refer to the disclosure statement, would therefore be changed accordingly.

Written comments are due by February 15, 2018.  Those who wish to testify in person regarding any of the proposed appellate rule changes can do so at hearings in Washington, DC on November 9, 2017 or in Phoenix on January 5, 2018.  Hearings regarding proposed changes to other sets of rules will occur on particular  dates in specified places (including Phoenix on January 5, 2018 for some of the other rules), as reflected in the attached.

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