July 1, 2025
This past June, the U.S. Supreme Court, in an 8-1 decision, dismissed the writ of certiorari as improvidently granted (colloquially know as a “DIG”) in an appeal brought by Labcorp Holdings, Inc.
The diagnostics company had asked the Court to review the Ninth Circuit’s decision affirming class certification in a disability discrimination class action, arguing that federal courts were improperly certifying classes that included uninjured members.
Friend of the Court
Among the pleadings distributed to the Justices before the Supreme Court issued its rejection were nine amicus curae briefs, including one that expressly addressed whether the Court should consider the case or if the Court (and the rule of law) would be better served to DIG it. This 29-page brief was submitted by federal jurisdiction scholars, whose expertise include Supreme Court jurisdiction and procedure. Cohen Milstein’s Alison Deich, an antitrust partner and former law clerk for the DC Circuit, led the amicus team.
In high-stakes cases like Labcorp and recent securities class actions NVIDIA v. Fonder AB and Facebook v. Amalgamated Bank, amicus curiae briefs are critical advocacy tools. Amicus curiae, or “friend of the court” briefs, allow non-parties to provide legal arguments or policy perspectives to assist the Court in its analysis and decision-making on important questions.
Labcorp had the potential to make it significantly difficult for investors, workers, consumers, and other injured parties to bring class actions. Given the far-reaching significance of the question before the Court, advocates recognized that the Court declining to rule in the case might be the best route to preserve plaintiffs’ rights. Deich identified a path to that result—zeroing in on a detail in the respondents’ brief that Labcorp only appealed one of the two class certification orders that had been issued.
“We did not want the Court to decide a question with such far-reaching implications when it was unclear that it had jurisdiction to do so,” said Deich.
In the amicus brief by legal scholars, her team explained how Labcorp’s decision to appeal just one of the two class certification orders created a tangle of jurisdictional, prudential, and factual problems that justified a DIG. Those problems became the focus of the Court’s attention at oral argument—and resulted in a DIG that preserved important aspects of the legal status quo.
Highlighting Unheard Perspectives
“What Ali and her team did in Labcorp is emblematic of the firm’s amicus practice,” said Laura Posner, a partner in Cohen Milstein’s Securities Litigation & Investor Protection practice group. Posner shepherds the firm’s amicus work in securities class actions and has spearheaded more than a dozen Supreme Court amicus briefs, including several on behalf of the North American Securities Administrators Association—the association of all state securities regulators in the United States—and former SEC officials.
“The Court has limited capacity to analyze all the facets of a case. So, amicus briefs play a uniquely important role, providing a deeper analysis or broader perspective beyond those advanced by the parties.”
Posner, who is also the president of the Institute for Law & Economic Policy, an investor protection public policy think tank, noted that amicus briefs in securities class actions are especially potent. Such briefs often provide economic data, industry insight, policy arguments, or legal analysis from experts and scholars in those fields that inform the Court of a case’s stakes and practical implications. Further, they allow interested parties, such as institutional investors, economists, and former members of the Securities Exchange Commission, to share their points of view in cases that may not directly involve them but could nonetheless reshape the rules governing investor rights, market conduct, and corporate disclosures.
“Amicus briefs offer practical benefits for both institutional investors and the courts,” noted Posner. For example, had NVIDIA or Facebook not been DIG’d by the Court, both could have significantly weakened securities laws and undermined investors’ ability to hold corporations accountable for fraud. In NVIDIA, potentially the most damaging case, Posner led an amicus team of distinguished scholars of economics, accounting, and other data sciences in support of the respondent in this case that, among other things, sought to undermine investors’ ability to use experts at the pleading stage.
Even in cases where the Supreme Court does not rule in investors’ favor, amicus briefs can play a critical role. For example, in Slack v. Pirani, distinguished legal and economic scholars represented by Cohen Milstein and Professors John C. Coffee Jr. and Joshua Mitts from Columbia Law School submitted a brief demonstrating how tracing under the Securities Act of 1933 was possible, helping guide the Court to a narrow, fact-specific result that would have limited impact, Posner said.
“Similarly, in Goldman Sachs v. Arkansas Teacher Retirement System, we submitted a brief that was successful in emphasizing how generic corporate statements, even if vague, can have material price impacts when later revealed to be false.”
Not all institutional investor amicus briefs are focused on securities class actions. This past November Molly Bowen, also a partner in the firm’s Securities Litigation & Investor Protection practice group, filed amicus briefs in two federal circuits supporting a federal regulation involving an employment issue that signatories believed impacted fair competition and the open markets. Amici, including the California Public Employees’ Retirement System, California State Teachers’ Retirement System, and Comptroller of the City of New York, argued that human capital management impacted long-term value of investments and that a uniform, national approach through regulation was superior to individual adjudication of the issue.
A Pragmatic Strategy
Institutional investors are critical amicus signatories. These institutions—and the public employees, teachers, firefighters, police officers they represent—are impacted the most by securities fraud and unfair markets. Courts have recognized their ability to lead securities fraud lawsuits with care and to ensure the best result for the class. Facebook, Nvidia, and Goldman, for instance, were all led by institutional investors.
“It’s important for the Court to see the name of institutional investors on these briefs and the trillions of dollars in assets under management they represent in the markets,” Posner said. “I firmly believe we have survived a series of existential crises at the Supreme Court because we have been able to convince the Court, primarily through amicus briefs, that the narrowing of investor rights will have dire consequences on institutional investors and the markets in which they invest.”
Amicus participation offers fiduciaries acting in the best interests of their plan beneficiaries another way to protect the integrity and transparency of financial markets, with a very limited expenditure of time or resources.
Moreover, by publicizing their positions on key legal issues, institutional investors can help build consensus and a normative vision within the investment community about the values and principles that should guide investor rights.
Cases on the Radar
Cohen Milstein’s amicus practice is interdisciplinary and takes a broad interest in cases that may impact our clients’ interests or that matter to the broader landscape of fair markets and the rule of law.
Currently, Posner is watching BDO USA v. New England Carpenters Guaranteed Annuity and Pension Funds, which addresses whether clean audit reports are material to investors. “If the Court reverses the Second Circuit, I think it would be devastating to investors,” she said. If the Supreme Court does grant cert, she believes it would provide a good opportunity for investors to sign on to an amicus brief.