Attorneys for Johnson & Johnson’s subsidiary LTL management have filed a request for an en banc rehearing with the Third Circuit Court of Appeals. The Feb. 13 request is the last attempt to appeal the dismissal of LTL’s chapter 11 bankruptcy proceeding, according to Law360.
According to the U.S. Court of Appeals Appellate Procedure Guide, a rehearing is rarely granted but can be petitioned. In order to file for a rehearing, the attorney representing the petitioner must believe that:
- A material fact or legal issue was overlooked in the current decision.
- A change in the law occurred after the case was submitted and was not taken into account by the panel.
- The opinion that was handed down is in conflict with a decision made by the U.S. Supreme Court or another court of appeals and the conflict is not addressed in the opinion.
- The lawsuit involves one or more questions of “exceptional importance.”
According to the court of appeals, “filing a petition solely for purposes of delay or in order merely to reargue the case is an abuse of the privilege,” and may result in negative consequences for J&J.
En banc rehearings are where all of the judges in a court hear a case rather than a selected panel. This is highly unusual and may not be ordered unless it is “necessary to secure or maintain uniformity of the court's decisions; or the proceeding involves a question of exceptional importance.”
This rehearing centers on the 3rd circuit’s dismissal of LTL’s bankruptcy case which it was using to settle hundreds of thousands of talc cancer lawsuits. The plaintiffs in these cases have had a stay placed on their cases for months as the bankruptcy court explored LTL’s restructuring. If the 3rd circuit’s decision that LTL’s chapter 11 proceeding is “the bankruptcy filing of a company created to file for bankruptcy,” then Johnson & Johnson will have to once again defend against the plaintiffs’ allegations in force.