A Tip for Appellants, and One for Respondents/Appellees

Ethypharm S.A. Fr. v. Abbott Labs., 707 F.3d 223 (3d Cir. 2013).  This is an antitrust standing case.  The Third Circuit’s opinion, written by Judge Jordan, found that plaintiff had no antitrust standing.  From an appellate practice perspective, though, the opinion contains two important principles, one of which is more relevant to appellants and the other that has more import for respondents (the state court usage) or appellees (the federal court term).

First, Judge Jordan reiterated the principle that a party waives an argument unless the party raises that contention in the party’s opening brief.  He went on to note, however, that “a passing reference to an issue … will not suffice to bring that issue before this court,” and that presenting an issue only in a footnote does not preserve that issue for review.  Thus, any argument to be presented, especially for an appellant, must not only be raised, but raised in sufficient fashion, in order to merit consideration.  Perhaps ironically, the entire discussion of this issue appears in a footnote to the panel’s opinion.

Second, in a later footnote that has relevance for respondents/appellees, Judge Jordan noted that an appellee need not cross-appeal in order to support the judgment below.  Instead, that party may “support the judgment as entered through any matter appearing in the record, though his argument may attack the lower court’s reasoning or bring forth a matter overlooked or ignored by the court.”

Both of these principles are established ideas, and both are stated in comparable fashion in New Jersey state court appellate decisions such as Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997) (raising issues in footnotes is “wholly improper,” and such issues would not be considered), and Luppino v. Mizrahi, 326 N.J. Super. 182, 185 (App. Div. 1999) (trial court’s decision can be supported by legal principles other than those relied on below, and Appellate Division accepted respondent’s alternative argument in affirming Law Division ruling).  It is a useful reminder, however, to see both of those principles stated in a single opinion.