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Schnader Employs a Unique Procedural Tactic to Achieve a Significant Victory Before the U.S. Supreme Court

On June 9, 2008 by Schnader in Appellate

The United States Supreme Court granted a motion to vacate a judgment of the United States Court of Appeals for the Third Circuit against the Firm’s client, Radian Guaranty, Inc. Radian had prevailed on a motion for summary judgment before the U.S. District Court for the Eastern District of Pennsylvania. However, in a precedential opinion, the Third Circuit reversed and held that questions of willfulness under the Fair Credit Reporting Act are factual issues that cannot be decided by courts as a matter of law.

A Schnader team consisting of David Smith, Nancy Winkelman, Theresa Loscalzo, and Joseph Anclien – along with co-counsel Patricia Millett, chair of Akin Gump’s Supreme Court Practice Group in Washington, D.C. – filed a petition for certiorari to the Supreme Court. Four amicus curiae briefs filed by 11 different business organizations supported the petition.

After considering Radian’s cert petition, the Supreme Court ordered plaintiffs to file a response. Instead, plaintiffs voluntarily dismissed their own action, apparently hoping to prevent review of the Third Circuit’s decision. Even though plaintiffs’ dismissal had mooted the petition, our team drew on a little-known and rarely-used procedural device to convince the Supreme Court to vacate the Third Circuit’s decision. That, in combination with the dismissal of the complaint, earned Radian a complete victory.