United States Court of Appeals for the Third Circuit

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1 Case: Document: Page: 1 Date Filed: 10/01/2014 No United States Court of Appeals for the Third Circuit KIMBERLEE WILLIAMS, ET AL., v. Appellants BASF CATALYSTS LLC, ET AL., Appellees On Appeal From The United States District Court For The District of New Jersey (Chesler, J.) Civil Action No. 11-cv PETITION FOR PANEL REHEARING AND REHEARING EN BANC Stephen M. Orlofsky David C. Kistler BLANK ROME LLP 301 Carnegie Center, 3rd Floor Princeton, NJ (609) Counsel for Appellee BASF Catalysts LLC Eugene F. Assaf, P.C. Michael F. Williams Daniel A. Bress Peter A. Farrell KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC (202) Counsel for Appellee BASF Catalysts LLC October 1, 2014

2 Case: Document: Page: 2 Date Filed: 10/01/2014 CERTIFICATE OF BELIEF THAT PANEL RECONSIDERATION OR EN BANC CONSIDERATION IS WARRANTED I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to decisions of the Supreme Court of New Jersey, see, e.g., Loigman v. Twp. Comm., 889 A.2d 426, 437 (N.J. 2006); Hawkins v. Harris, 661 A.2d 284, 287 (N.J. 1995), which recognize that New Jersey s absolute litigation privilege precludes civil liability for statements made in litigation regardless of the lawyers motives []or the sincerity of their communications, Loigman, 889 A.2d at 437. The panel decision is further contrary to precedents of this Court, see, e.g., Sheridan v. NGK Metals Corp., 609 F.3d 239, 253 (3d Cir. 2010); Werwinski v. Ford Motor Co., 286 F.3d 661, 680 (3d Cir. 2002), which establish that federal courts must follow state law as announced by the state s highest court, and may not expand state-law liability in ways not foreshadowed by state precedent. This case thus involves a question of exceptional importance that warrants certification of this issue to the Supreme Court of New Jersey. Principles of federalism countenance in favor of allowing New Jersey s Supreme Court the opportunity to address an issue of state law that is of vital significance to New Jersey courts and practitioners. October 1, 2014 /s/ Stephen M. Orlofsky Stephen M. Orlofsky

3 Case: Document: Page: 3 Date Filed: 10/01/2014 TABLE OF CONTENTS Page INTRODUCTION... 1 FACTS AND PROCEDURAL HISTORY... 3 ARGUMENT... 5 REHEARING IS WARRANTED TO CERTIFY THE LITIGATION PRIVILEGE QUESTION TO NEW JERSEY S SUPREME COURT... 5 CONCLUSION i

4 Case: Document: Page: 4 Date Filed: 10/01/2014 Cases TABLE OF AUTHORITIES Page(s) Am. Home Assur. Co. v. Stephens, 140 F.3d 617 (5th Cir. 1998) DeVivo v. Ascher, 550 A.2d 163 (N.J. Super. Ct. App. Div. 1988)... 7 Durand Equip. Co. v. Superior Carbon Prods., 591 A.2d 987 (N.J. Super. Ct. App. Div. 1991)... 8, 11 Emolo v. McDaniel, 2009 WL (N.J. Super. Ct. App. Div. July 29, 2009)... 8 George v. Nat l Collegiate Athletic Ass n, 623 F.3d 1135 (7th Cir. 2010) Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292 (11th Cir. 2003) Greenberg Traurig, LLP v. Frias Holding Co., 331 P.3d 901 (Nev. 2014) Grinbaum v. Wolf, 2011 WL (N.J. Super. Ct. App. Div. Dec. 9, 2011)... 9 Hill v. N.J. Dep t of Corr. Comm r Fauver, 776 A.2d 828 (N.J. Super. Ct. App. Div. 2001) In re Giannini, 56 A.3d 866 (N.J. 2012) Levin v. United States Fire Ins. Co., 639 So.2d 606 (Fla. 1994) Matsuura v. E.I. du Pont de Nemours & Co., 73 P.3d 687 (Haw. 2003)... 7, 9, 10, 15 ii

5 Case: Document: Page: 5 Date Filed: 10/01/2014 Michaels v. New Jersey, 150 F.3d 257 (3d Cir. 1998) Middlesex Concrete Prods. & Excavating Co. v. Carteret Indus. Ass n, 172 A.2d 22 (N.J. Super. Ct. App. Div. 1961)... 7, 8 Mitchell Partners, LP v. Irex Corp., 660 F.3d 709 (3d Cir. 2011) Ojo v. Farmers Grp., Inc., 600 F.3d 1201 (9th Cir. 2010) Peterson v. Ballard, 679 A.2d 657 (N.J. Super. Ct. App. Div. 1996)... 6 Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005) Rainier s Dairies v. Raritan Valley Farms, 117 A.2d 889 (N.J. 1955) Ruberton v. Gabage, 654 A.2d 1002 (N.J. Super. Ct. App. Div. 1995)... 8 Simpson Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18 (Tenn. 2007) Vitanza v. James, 2010 WL (N.J. Super. Ct. App. Div. May 6, 2010)... 7 Viviano v. CBS, Inc., 597 A.2d 543 (N.J. Super. Ct. App. Div. 1991) iii

6 Case: Document: Page: 6 Date Filed: 10/01/2014 INTRODUCTION This case presents the important question whether a federal court can authorize common-law fraud suits for statements made by lawyers and parties in litigation when a State has expressly disallowed such liability through its litigation privilege. The panel here predicted that New Jersey would not apply its broad litigation privilege which to promote vigorous advocacy provides absolute immunity from civil liability for statements made in litigation when the statements were allegedly false and misleading and contrary to the truth-seeking function of litigation. The panel s opinion reflects legitimately strong views on the policy considerations underlying the litigation privilege. But the question here is one of New Jersey law, and New Jersey s Supreme Court has come out the other way on those policy questions. While there are good arguments for and against a robust litigation privilege, a federal court cannot convert New Jersey s absolute litigation privilege into a qualified one, and thereby create an exception to the litigation privilege that New Jersey s highest court has rejected. The panel s decision is at odds with New Jersey precedent and inconsistent with principles of federalism. While the panel believed that New Jersey would not apply its litigation privilege to statements that are allegedly false or misleading, the panel failed to acknowledge the Supreme Court of New Jersey s express holdings that the privilege applies regardless of the justness of the lawyers motives or the

7 Case: Document: Page: 7 Date Filed: 10/01/2014 sincerity of their communications, which the New Jersey Supreme Court has said is a necessary trade-off for ensuring zealous advocacy. Similarly, while predicting that New Jersey would follow Hawaii s litigation privilege rather than its own, the panel again failed to account for the many New Jersey cases applying the litigation privilege in instances where the communications in question were unsavory and contrary to the truth-seeking function of litigation. Reasonable jurists may disagree about the proper balance to strike between promoting vigorous lawyering and deterring wrongful statements in litigation, but a federal court cannot substitute its policy judgment for that of New Jersey s courts on a question of New Jersey law. The panel s new exception to the litigation privilege is also particularly problematic in the context of this putative class action, as the panel potentially opened the door for common-law fraud claims based on statements made in thousands of asbestos cases over more than two decades, a substantial expansion of civil liability for speech in litigation. Before the parties and the district court are forced to go down that path which could involve extensive discovery of lawyers and past legal positions respect for the role of state courts as arbiters of state law warrants certification of the litigation privilege issue to New Jersey s Supreme Court. Indeed, the plaintiffs themselves previously suggested certification to the New Jersey Supreme Court in apparent recognition of the fact that New Jersey law at the very least did not 2

8 Case: Document: Page: 8 Date Filed: 10/01/2014 clearly support them. BASF thus respectfully requests that the panel or en banc Court certify the question whether New Jersey s litigation privilege applies here. FACTS AND PROCEDURAL HISTORY From 1967 to 1983, a subsidiary of Engelhard Corporation mined talc from a mine in Johnson, Vermont and sold the talc under the brand-name Emtal talc. A90 (Am. Compl. 70, 73). Engelhard closed the Johnson mine in A10. Starting in the 1980s, Engelhard was named as a defendant in asbestos personalinjury lawsuits. Although talc is not asbestos, plaintiffs alleged that Emtal talc contained asbestos fibers as natural contaminants. A89 (Am. Compl. 69); Pls. Br. at 3. The law firm of Cahill Gordon & Reindel continuously represented Engelhard in these asbestos cases. In 2006, over twenty years after the mine closed, BASF acquired Engelhard, renaming it BASF Catalysts LLC. The instant class action principally concerns Cahill s past representation of Engelhard in long-closed asbestos cases. Plaintiffs, who purport to represent a nationwide class, are six individuals whose decedents worked in manufacturing and other facilities in Ohio and New York and who previously sued Engelhard or BASF for alleged asbestos-related injuries. A65-78 (Am. Compl ). Plaintiffs allege that, in the course of those lawsuits, Cahill and Engelhard falsely represented that Emtal talc did not contain asbestos, and concealed evidence. 3

9 Case: Document: Page: 9 Date Filed: 10/01/2014 Citing the unprecedented nature of this lawsuit, the district court (Chesler, J.), dismissed all of plaintiffs various claims under Rule 12(b)(6). A7, A46. A panel of this Court affirmed in part and reversed in part. The panel agreed with the district court that plaintiffs could not state a claim under New Jersey s RICO statute, see Panel Op , and further agreed that most of plaintiffs requested injunctive relief geared toward reopening their closed asbestos cases was not justiciable, id. at But the panel found that plaintiffs had stated claims for fraudulent concealment (a New Jersey tort for spoliation) and for fraud (premised on alleged misstatements made in litigation). Id. at With respect to the fraud claims in particular, the panel ruled that New Jersey s litigation privilege did not apply. Id. at The district court had rejected plaintiffs argument that the statements at issue fell outside the privilege because they were allegedly false and misleading, explaining that this conflict[ed] with the New Jersey Supreme Court s express holding[s,] which reject[] consideration of the propriety of the attorneys conduct. A Reversing, the panel made the predict[ion] that New Jersey would not apply its litigation privilege when, as here, defendants have uttered words that prevent a fair proceeding. Panel Op (quotations omitted). 4

10 Case: Document: Page: 10 Date Filed: 10/01/2014 ARGUMENT REHEARING IS WARRANTED TO CERTIFY THE LITIGATION PRIVILEGE QUESTION TO NEW JERSEY S SUPREME COURT New Jersey s litigation privilege, which insulates a participant in the legal system from civil liability [for] words he has uttered in the course of judicial proceedings, has deep roots in the common law and has long been embedded in New Jersey s jurisprudence. Loigman v. Twp. Comm, 889 A.2d 426, (N.J. 2006). The effect of the privilege is to render statements made in litigation absolutely privileged and wholly immune from liability. Hawkins v. Harris, 661 A.2d 284, 287 (N.J. 1995). New Jersey s Supreme Court has explained that the litigation privilege is the backbone to an effective and smoothly operating judicial system, Loigman, 889 A.2d 436 (quoting Hawkins, 661 A.2d at 292), because attorneys must be able to represent clients unfettered by the fear that the attorney may be the subject of a tort action, id. at 439 (quotations omitted). New Jersey applies a four-part test to determine whether statements are protected by the litigation privilege: The privilege shields any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. Loigman, 889 A.2d at 437 (quotations omitted). The privilege thus has an extraordinary scope, covering all statements or communications in connection with [a] judicial proceeding. 5

11 Case: Document: Page: 11 Date Filed: 10/01/2014 Hawkins, 661 A.2d at 289, 291; see also Peterson v. Ballard, 679 A.2d 657, 660 (N.J. Super. Ct. App. Div. 1996) (recognizing the breadth of the privilege ). As the district court correctly held, New Jersey s litigation privilege bars plaintiffs fraud claims, which are premised exclusively on statements made by lawyers and parties in litigation. A The plaintiffs allege that Cahill and Engelhard misrepresented the asbestos content of Emtal talc in discovery responses, pleadings, and letters in the course of litigating asbestos cases. A65 (Am. Compl. 144(f)-(h)). Those statements made while defending lawsuits fall in the heartland of the speech the privilege protects from civil liability. Indeed, New Jersey has extended its litigation privilege to a broad range of persons and situations far outside the main litigation context. See, e.g., Hawkins, 661 A.2d at 292 (non-lawyer investigators); Peterson, 679 A.2d at 663 (pre-litigation). The panel, however, refused to apply New Jersey s litigation privilege to the facts alleged. While recognizing that New Jersey s privilege generally precludes civil liability arising from words uttered in the course of judicial proceedings, the panel predict[ed] that New Jersey would not apply its privilege to false and misleading statements that do not serve the courts truth-seeking function and that prevent a fair proceeding. Panel Op (quotations omitted). The panel identified no New Jersey case that had ever adopted this exception to New Jersey s litigation privilege. Rather, citing a single case from Hawaii, see Matsuura v. E.I. 6

12 Case: Document: Page: 12 Date Filed: 10/01/2014 du Pont de Nemours & Co., 73 P.3d 687 (Haw. 2003), the panel anticipated that New Jersey would follow Hawaii s approach on these facts, Panel Op. 21. The panel s reasoning and holding is directly contrary to established New Jersey law, as examination of the panel s five articulated rationales demonstrates. First, the panel held that New Jersey s litigation privilege would not apply because [t]he purposes of the privilege are never served by immunizing false and misleading statements in litigation that impede the courts truth-seeking function and prevent a fair proceeding. Id. at 21. But the panel failed to mention that New Jersey s Supreme Court has expressly rejected any limits on the privilege based on whether the statements in question were truthful or proper: In applying the privilege, we consider neither the justness of the lawyers motives nor the sincerity of their communications. Loigman, 889 A.2d at 437; see also id. at 438 (litigation privilege applies to unethical and negligent attorneys ); Hawkins, 661 A.2d at 287 (litigation privilege is granted to good and bad alike ); Vitanza v. James, 2010 WL , at *6 (N.J. Super. Ct. App. Div. May 6, 2010) ( The privilege protects saint and sinner alike, sweeping defendant s bilge under its mantle. ); DeVivo v. Ascher, 550 A.2d 163, 165 (N.J. Super. Ct. App. Div. 1988) (privilege applies even if the words are written or spoken maliciously, without any justification or excuse ); Middlesex Concrete Prods. & Excavating Co. v. Carteret Indus. Ass n, 172 A.2d 22, 25 (N.J. Super. Ct. App. Div. 1961) ( Even 7

13 Case: Document: Page: 13 Date Filed: 10/01/2014 actual malice does not affect the absolute immunity provided the statement is made in the course of judicial proceedings and has some relation thereto. ). The panel s new exception to the litigation privilege is inconsistent with New Jersey case law, which has applied the privilege to statements that certainly would not promote the search for truth or lead to fair proceedings. See, e.g., Emolo v. McDaniel, 2009 WL , at *7 (N.J. Super. Ct. App. Div. July 29, 2009) (applying privilege where defendants elicited false testimony knowing it to be false and filed fraudulent motions); Ruberton v. Gabage, 654 A.2d 1002, 1004 (N.J. Super. Ct. App. Div. 1995) (applying privilege where defendants fraudulently induced plaintiffs to settle by making unethical and unlawful threats ); Middlesex Concrete, 172 A.2d at 24 (applying privilege where witness signed and swore to a false affidavit ). Indeed, New Jersey s privilege has been applied to alleged perjury, by definition contrary to pursuit of the truth. See Durand Equip. Co. v. Superior Carbon Prods., 591 A.2d 987, 989 (N.J. Super. Ct. App. Div. 1991). That is why just three years ago, a New Jersey appellate court remarked that a plaintiff s claim[] that the litigation privilege is unavailable in an action based on false statements made in a civil proceeding lacks sufficient merit to 8

14 Case: Document: Page: 14 Date Filed: 10/01/2014 warrant extended discussion. Grinbaum v. Wolf, 2011 WL , at *3 (N.J. Super. Ct. App. Div. Dec. 9, 2011)). 1 Relying on the decision in Matsuura, the panel predicted that New Jersey would follow Hawaii[] and find that the law s interest in resolving disputes fairly and on the merits outweigh[s] the competing interest in placing judgments or parties beyond reproach. Panel Op. 21. But the panel failed to mention that New Jersey has based its absolute litigation privilege on the opposite policy conclusion: To ensure that the many honest and competent lawyers can perform their professional duties while furthering the administration of justice, the litigation privilege may protect the few unethical and negligent attorneys from a merited civil judgment and damages award. That trade-off is the necessary price that must be paid for the proper functioning of our judicial system, a system that requires attorneys to vigorously and fearlessly represent their clients interests. Loigman, 889 A.2d at 438 (emphasis added). While the panel may find Hawaii s approach preferable, it must respect New Jersey law. See, e.g., Sheridan v. NGK Metals Corp., 609 F.3d 239, 253 (3d Cir. 2010). Nor is Matsuura s approach inevitable. Considering the same allegations at issue against DuPont in 1 The panel erred in suggesting that a statement in Loigman [s]eeking truthful, accurate, and non-tainted testimony certainly is the objective of every litigated case, Panel Op. 23 (quoting Loigman, 889 A.2d at 437) serves as a limitation on when the privilege applies. Loigman did not so hold, and instead applied the privilege to a sequestration motion alleged to contain false statements made with an improper design, because [i]n applying the privilege, we consider neither the justness of the lawyers motives nor the sincerity of their communications. 889 A.2d at

15 Case: Document: Page: 15 Date Filed: 10/01/2014 Matsuura allegations that the panel viewed as comparable to those here the Eleventh Circuit held that Florida s litigation privilege immunized DuPont for civil liability for untruthful testimony and false litigation positions, and that Matsuura could not govern because we are bound by the substantive law of Florida, not the substantive law of Hawaii. Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, & n.14 (11th Cir. 2003). Second, the panel held that the litigation privilege should not apply on the facts alleged because [t]he absolute privilege does not extend to statements made in situations for which there are no safeguards against abuse. Panel Op (quoting Hawkins, 661 A.2d at 291). But New Jersey s Supreme Court has explained that there are sufficient safeguards in the litigation context generally, such that civil suits are not necessary for policing wrongful statements in litigation. See Hawkins, 661 A.2d at 289 (citing the discipline of the courts, the bar association, and the state ) (quotations omitted); see also In re Giannini, 56 A.3d 866, 869 (N.J. 2012) (same). That is why New Jersey has recognized a robust litigation privilege in the first place, see Hawkins, 661 A.2d , and why New Jersey courts have never rejected the privilege on the theory that particular types of statements in litigation lacked sufficient safeguards against abuse. Third, the panel reasoned that the allegations of this case place the offending conduct far from the core of the privilege, which has typically been 10

16 Case: Document: Page: 16 Date Filed: 10/01/2014 invoked in the defamation context. Panel Op. 22 (quotations omitted). But it is established that the privilege protects attorneys not only from defamation actions, but also from a host of other tort-related claims, including unconventional and sometimes novel causes of action. Loigman, 889 A.2d at Equally wide of the mark is the panel s related assertion that the litigation privilege should not apply because the allegations here describe conduct calculated to thwart the judicial process and, in that way, are more akin to malicious prosecution, perjury, and spoliation. Panel Op. 22. New Jersey courts have explained that malicious prosecution and spoliation (fraudulent concealment) are exempted from the privilege for reasons unrelated to whether they thwart the judicial process : fraudulent concealment concerns conduct rather than speech, and malicious prosecution concerns the initiation of a suit rather than statements made within it. See Viviano v. CBS, Inc., 597 A.2d 543, (N.J. Super. Ct. App. Div. 1991); Hill v. N.J. Dep t of Corr. Comm r Fauver, 776 A.2d 828, (N.J. Super. Ct. App. Div. 2001). The panel s reference to criminal perjury, meanwhile, is simply incorrect. The case the panel cited, Durand Equipment, 591 A.2d 987, held that the privilege applied in a civil suit to allegations of criminal perjury. Id. at Durand simply pointed out that such perjury could be subject to criminal sanctions as part of explaining why the threat of civil litigation was unnecessary for deterring and punishing false statements in litigation. Id. at

17 Case: Document: Page: 17 Date Filed: 10/01/2014 Fourth, the panel concluded that the litigation privilege did not apply because the complaint alleges[] [that] BASF and Cahill engineered the false statements and evidence in advance of litigation. Panel Op. 23. But this point is irrelevant for purposes of the litigation privilege. The panel identified no New Jersey case that distinguishes between the preparation for making statements in litigation and the statements themselves, for the simple reason that only the statements themselves could ever be actionable as fraud. The panel s distinction is just another way of saying that statements in litigation motivated by an ill intent are not covered by the privilege, a holding that is contrary to New Jersey law. See Loigman, 889 A.2d at 437 ( In applying the privilege, we consider neither the justness of the lawyers motives nor the sincerity of their communications. ). Finally, the panel rejected the litigation privilege because the New Jersey Supreme Court has never immunized systematic fraud designed to prevent a fair proceeding. Panel Op. 24. Once again, the panel cited no New Jersey case creating a systematic fraud exception. To the contrary, New Jersey has consistently applied its privilege without ever suggesting that a certain level of misconduct would be exempt. See also Pls. Br. at 24 (admitting that no New Jersey court has charted the outer limit of the privilege s application ). That is what makes an absolute privilege absolute. See Rainier s Dairies v. Raritan Valley Farms, 117 A.2d 889, (N.J. 1955) ( [T]he difference is that the absolute 12

18 Case: Document: Page: 18 Date Filed: 10/01/2014 privilege affords complete protection whereas the qualified privilege affords protection only if there is no ill motive or malice in fact. ). BASF appreciates the panel s concern for the allegations in this case and the limitations on liability that the litigation privilege creates. The robustness of any litigation privilege depends on a series of policy judgments relating to the twin goals of deterring wrongful behavior in litigation and promoting zealous advocacy. While reasonable jurists could thoughtfully disagree about how the balance should be struck, the question here is not which litigation privilege should be adopted as an original matter, but which one New Jersey has adopted. And in that respect, [c]omity and respect for federalism compel [the Court] to defer to the decisions of state courts on issues of state law. Pinho v. Gonzales, 432 F.3d 193, 212 (3d Cir. 2005) (quotations omitted). But even if the litigation privilege question was close, this Court s precedents still require it to opt for the interpretation that restricts liability, rather than expands it, until the Supreme Court of [New Jersey] decides differently. Werwinski v. Ford Motor Co., 286 F.3d 661, 680 (3d Cir. 2002). The result of the panel opinion is that statements allegedly made in thousands of asbestos cases are now potentially the basis for damages, a striking expansion of liability. And whereas New Jersey law previously afforded a bright-line absolute litigation privilege, the panel decision creates uncertainty about when parties and lawyers in 13

19 Case: Document: Page: 19 Date Filed: 10/01/2014 New Jersey can be civilly liable for what they say in litigation, generating the very chilling effect that New Jersey s litigation privilege is designed to prevent. The importance of the panel decision would warrant rehearing notwithstanding this Court s reluctance to further review issues of state law. But at the very least, and before the parties engage in discovery relating to allegedly false statements made in asbestos cases over more than twenty years, respect for New Jersey s authority over its own litigation privilege warrants certification of this issue to New Jersey s Supreme Court. See Michaels v. New Jersey, 150 F.3d 257, 259 (3d Cir. 1998) (Alito, J.) (certification provides the best way to alleviate the judicial federalism concerns that arise when federal courts attempt to predict how a state s highest court would rule ) (quotations omitted). In fact, plaintiffs themselves in the alternative requested certification because the scope of New Jersey s litigation privilege is unresolved. Pls. Br. at 14; see also id. at 35. That is now the proper approach. The Courts of Appeal, including this Court, have granted rehearing or rehearing en banc to certify an issue to a state supreme court. See, e.g., Mitchell Partners, LP v. Irex Corp., 660 F.3d 709 (3d Cir. 2011); George v. Nat l Collegiate Athletic Ass n, 623 F.3d 1135 (7th Cir. 2010); Ojo v. Farmers Grp., Inc., 600 F.3d 1201 (9th Cir. 2010); Am. Home Assur. Co. v. Stephens, 140 F.3d 617 (5th Cir. 1998). And federal courts have also specifically certified questions regarding states litigation privileges. See 14

20 Case: Document: Page: 20 Date Filed: 10/01/2014 Greenberg Traurig, LLP v. Frias Holding Co., 331 P.3d 901, 903 (Nev. 2014); Simpson Strong-Tie Co. v. Stewart, Estes & Donnell, 232 S.W.3d 18, 20 (Tenn. 2007); Levin v. United States Fire Ins. Co., 639 So.2d 606, 607 (Fla. 1994). In fact, the very Hawaii decision that the panel relied upon so heavily was itself addressing certified questions from a federal court. See Matsuura, 73 P.3d at 688. It is only fair that BASF receive the same treatment in the face of the panel s unanticipated departure from established New Jersey law. 2 CONCLUSION This Court should grant panel rehearing or rehearing en banc and certify the litigation privilege question to the Supreme Court of New Jersey. 2 While the panel applied New Jersey law to this appeal, see Panel Op , choice-of-law issues may be raised in future proceedings on remand. In granting defendants motion to dismiss, the district court held that [t]he Court may postpone a choice of law analysis yet proceed to evaluate the sufficiency of the claims on a Rule 12(b)(6) motion under the assumption that New Jersey law applies, given that Plaintiffs have argued that their common law claims are viable under New Jersey law. A26 n.4; see also BASF Mot. to Dismiss at 7 n.2. That approach is routinely followed and also correct, otherwise parties and courts would be required to conduct burdensome choice-of-law discovery at the beginning of virtually every putative class action. See BASF Supp. Br. 5-7 (citing cases). As BASF explained in its supplemental brief in this Court, BASF thus did not waive the choice-of-law issue: BASF preserved the issue in the district court and simply addressed plaintiffs allegations as pled. [S]hould this Court remand any of plaintiffs claims, BASF would thus be entitled to renew any choice-of-law arguments at the appropriate time. Id. at 8 n.1. But because plaintiffs pled their claims under New Jersey law, which could be determinative at the motion-todismiss stage, certification to New Jersey s Supreme Court is proper. See N.J. Ct. R. 2:12A-1. 15

21 Case: Document: Page: 21 Date Filed: 10/01/2014 October 1, 2014 Respectfully submitted, Eugene F. Assaf, P.C. Michael F. Williams Daniel A. Bress KIRKLAND & ELLIS LLP th St., N.W. Washington, D.C Phone: (202) Facsimile: (202) Counsel for Appellee BASF Catalysts LLC /s/ Stephen M. Orlofsky Stephen M. Orlofsky New Jersey Resident Partner David C. Kistler BLANK ROME LLP 301 Carnegie Center, 3rd Floor Princeton, NJ Phone: (609) Facsimile: (609) Counsel for Appellee BASF Catalysts LLC 16

22 Case: Document: Page: 22 Date Filed: 10/01/2014 MOTION FOR CERTIFICATION Pursuant to Third Circuit Rule 110.1, this Court is authorized to certify to a state supreme court questions arising under the laws of that state which will control the outcome of a case pending in federal court. Because New Jersey s litigation privilege is dispositive as to plaintiffs fraud claims, and because no New Jersey case suggests an exception to the privilege that would apply here, BASF respectfully moves this Court to certify the question whether the litigation privilege applies to the facts alleged. October 1, 2014 /s/ Stephen M. Orlofsky Stephen M. Orlofsky