August 30, 2010

Rossa illustrates the role of amicus letters in support of review

A few weeks ago, on August 11, 2010, the California Supreme Court granted review 7-0 in a case involving a rather obscure issue of appellate procedure. The court granted review in Rossa v. D. L. Falk Co. (No. S183523) to decide: ““Does California Rules of Court, rule 8.278(d)(1)(F), which permits a successful appellant to recover ‘the cost to obtain a letter of credit as collateral,’ allow the recovery of interest paid on sums borrowed to fund a letter of credit used to secure a surety bond?”

Last week I wrote a Daily Journal article examining the case. In the article, entitled “Interest for Thee but Not for Me?”, I went out on a limb and predicted that the court will reverse the First District Court of Appeal’s decision, which held that the interest on money borrowed to obtain a letter of credit as collateral for an appeal bond is not a recoverable cost on appeal. Because prevailing plaintiffs are permitted to recover a far-higher-than-market rate of ten percent per annum on judgments that are affirmed on appeal (see Code Civ. Proc., § 685.010(a)), it seems unfair not to reimburse defendants for analogous interest expenses incurred to bond judgments that are reversed on appeal.

So what’s the Supreme Court “practice” angle here? The article also addresses why the Supreme Court would be interested in the case, borrowing points we made in an amicus curiae letter urging the court to grant review in Rossa. The letter, filed on behalf of International Sureties, Ltd. (one of the country’s largest brokers specializing in appeal and supersedeas bonds), provided an overview of the appellate bonding process and explained the burden the Rossa decision was likely to place on superior courts. The amicus letter illustrates how an interested nonparty can provide the court with the “big picture” and explain how a particular decision is likely to extend beyond the particular parties in the case and have a statewide impact on a particular industry.

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