The Fourth Circuit’s lengthy opinion yesterday in New Cingular Wireless v. Finley addresses several arcane but seemingly important aspects of telecommunications law. There are some interesting appellate practice aspects of the opinion as well.
Prior to oral argument, the panel solicited supplemental briefing from the parties on necessary party and ripeness issues. The briefs must have been pretty good, for the court thought the issues not even close enough to address:
Prior to oral argument, we requested supplemental briefing addressing whether AT&T North Carolina, the third-party transit provider, is a necessary or indispens[a]ble party, as well as whether this matter is ripe for decision “given that the transit providers apparently have yet to incur any transit charges.” Because we find these issues to be not as close as we once thought they might be given the benefit of supplemental briefing and argument, we elect not to address them here.
Given the firms that were on the briefing, the cost of these supplemental briefs was certainly in the five figures. A disposition like this points up a difficulty for a panel that believes there to be important issues that have been unaddressed by the briefing. If the panel waits until oral argument, questions about unaddressed issues may not receive satisfactory answers because the lawyers are not prepared to address them. In that circumstance, post-argument supplemental briefs would be necessary and some time is lost from argument of the other issues. But if the lawyers can satisfactorily address the questions at oral argument about unbriefed issues, then it is possible to avoid the cost of preparing briefs. To avoid that cost, however, the panel and the lawyers risk losing time for argument about the issues that have been briefed.
