Waiver Doctrine Applies to Choice-of-law Issues: Third Circuit | Practical Law

Waiver Doctrine Applies to Choice-of-law Issues: Third Circuit | Practical Law

In Williams v. BASF Catalysts LLC, the US Court of Appeals for the Third Circuit answered an open question in the circuit, and held that parties may waive choice-of-law issues by failing to raise them before the district court.

Waiver Doctrine Applies to Choice-of-law Issues: Third Circuit

Practical Law Legal Update 1-580-3485 (Approx. 2 pages)

Waiver Doctrine Applies to Choice-of-law Issues: Third Circuit

by Practical Law Litigation
Published on 05 Sep 2014 • USA (National/Federal)
In Williams v. BASF Catalysts LLC, the US Court of Appeals for the Third Circuit answered an open question in the circuit, and held that parties may waive choice-of-law issues by failing to raise them before the district court.
On September 3, 2014, in Williams v. BASF Catalysts LLC, the US Court of Appeals for the Third Circuit resolved an open question in the circuit and held that parties may waive choice-of-law issues by failing to raise them before the district court (No. 13-1089, (Sept. 3, 2014).
Plaintiffs, a putative class of asbestos-injury victims, filed suit in the United States District Court for the District of New Jersey, alleging that defendants BASF Catalysts and its counsel Cahill Gordon & Reindel conspired to destroy or hide reports that talc produced by BASF's predecessor contained disease-causing asbestos. Plaintiffs alleged that defendants defrauded them in their prior personal-injury lawsuits, and wrongly caused them to settle or dismiss claims that they otherwise would have pursued. Based on these allegations, Plaintiffs raised various statutory and common law claims under New Jersey law. The district court dismissed plaintiffs' complaint in its entirety, concluding that plaintiffs' claims were either inadequately pleaded or barred by New Jersey's litigation privilege.
On appeal, before turning to the sufficiency of plaintiffs' allegations, the Third Circuit considered the threshold question of whether to apply New Jersey law as briefed and argued by the parties, or to undertake a choice-of-law analysis because not all of the parties were from New Jersey and certain events did not take place in that state.
The Third Circuit observed that its own caselaw was conflicting as to whether parties may waive choice-of-law issues, and that an open question thus remained as to whether such issues may be considered for the first time on appeal.
The court resolved that open question by holding that parties may waive choice-of-law issues by failing to raise them before the district court. The court reasoned that:
  • Every circuit court has held that choice-of-law issues may be waived.
  • Parties typically waive all issues that do not go to the court's jurisdiction.
  • Requiring litigants to raise choice-of-law issues before the district court ensures a proper record for review on appeal.
Because neither party raised the choice-of-law issue before the district court, the court concluded that the issue was waived.
Parties litigating in the Third Circuit should raise choice-of-law issues before the district court in the first instance, or risk waiving the issues on appeal.