Jim Sciaroni v. Target Corporation
855 F.3d 913
8th Cir.2017Background
- Target announced a massive data breach affecting up to 110 million customers; a class-action settlement followed.
- Two objectors, Leif A. Olson and Jim Sciaroni, opposed the settlement in district court; the district court overruled their objections and approved the settlement.
- Olson and Sciaroni separately appealed; the appeals were consolidated and their opening briefs were due the same day.
- Olson filed a timely principal brief that did not challenge settlement fairness or attorneys’ fees; Sciaroni’s brief (filed shortly after) did address those issues.
- Olson then filed a Rule 28(i) letter stating he joined Sections II and IV of Sciaroni’s brief (except one collusion sentence), thereby adopting arguments about self-dealing and attorneys’ fees.
- The court granted Olson’s motion to amend its earlier opinion to acknowledge that Olson, via his 28(i) letter, joined Sciaroni’s sections on self-dealing and attorneys’ fees and may raise those issues on remand; a dissent argued Rule 28(i) should not permit that result.
Issues
| Issue | Plaintiff's Argument (Olson) | Defendant's Argument (consumer-plaintiffs / dissent) | Held |
|---|---|---|---|
| Whether a party may adopt parts of a co-appellant’s brief under FRAP 28(i) to raise issues not in its principal brief | Rule 28(i) allows adoption by reference; Olson’s 28(i) letter clearly identified the adopted sections, so he may raise those issues | Adoption cannot expand the issues listed in a party’s principal brief; Bohmont limits adoption to issues the adopting brief listed | Held: 28(i) adoption by Olson was effective; Rule 28(i) permits raising issues by adoption even if not in the principal brief when clearly identified by the adopting party |
| Whether adoption via 28(i) should be treated as increasing the adopting party’s word count for principal-brief limits (FRAP 32) | No rule treats adopted material as part of the adopter’s word count; unlimited adoption does not impose new reading burdens | Allowing adoption to bypass word limits would permit end-runs around FRAP 32 and be unfair | Held: Adoption does not automatically increase principal-brief word count; the court rejects treating adopted text as counted against the adopter’s brief |
| Whether adoption via 28(i) can evade consequences of late filing (FRAP 31) | Rule 31(c) allows dismissal for late briefs but courts may decline to strike late filings; here consumer-plaintiffs did not move to dismiss and showed no prejudice | Allowing adoption after deadlines undermines lateness rules and could permit untimely expansion of issues | Held: The court did not address an actual Rule 31(c) motion and noted no prejudice; Olson’s 28(i) letter filed one day after Sciaroni’s brief is permissible in this posture |
| Whether adopted arguments were too fact-specific to be adopted by another appellant | Olson adopted only arguments that were not class-member-specific; factual specificity limits adoption per McDougal | If arguments are fact-bound to another party, adoption is improper | Held: The adopted settlement-fairness and fee arguments were not fact-specific to Sciaroni, so adoption was permissible |
Key Cases Cited
- United States v. Harris, 740 F.3d 956 (5th Cir. 2014) (approving adoption by letter under FRAP 28(i))
- United States v. McDougal, 133 F.3d 1110 (8th Cir. 1998) (limitations on adopting fact-specific arguments)
- Microsoft Corp. v. Data-Tern, Inc., 755 F.3d 899 (Fed. Cir. 2014) (discussing that incorporation cannot be used to exceed word count)
- DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) (narrowly characterizing Microsoft’s holding regarding co-party incorporation)