Footnoted Argument Normally Waived

From footnote two of Massachusetts v. Equifax:

Although Equifax hinted at [a statutory] argument in a footnote, it did not develop the point or explain its significance in its original or reply memorandum. Instead, Equifax first articulated the point during oral argument.

Normally this would waive the point. In the Superior Court, moving parties are required by rule to file a written memorandum that includes “a statement of reasons, with supporting authorities, why the motion should be granted.” Sup. Ct. Rule 9A(a)(2). This requirement is in part an “an ‘anti-ferreting’ rule designed to assist a trial judge” in identifying what legal arguments are being pressed by each party. Cf. Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399 (2002) (same as to requirement in Rule 9A(b)(5) that summary judgment motions be accompanied by joint statements of material facts).

An undeveloped assertion buried in a footnote does not satisfy the requirements of Rule 9A(a)(2). Cf. Providence & Worcester R.R. Co. v. Energy Facilities Siting Bd., 453 Mass. 135, 140 n.10 (2009) (“Arguments relegated to a footnote do not rise to the level of appellate argument.” (quoting Commonwealth v. Lydon, 413 Mass. 309, 317-318 (1992)); Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123, 134 n.15 (2009) (a “three-sentence, conclusory argument does not rise to the level of acceptable appellate argument”); McCullen v. Coakley, 571 F.3d 167, 182 n.3 (1st Cir. 2009), cert. denied, 130 S.Ct. 1881 (2010) (“avoiding waiver requires more than a hint that a particular theory may be lurking; it necessitates some developed argumentation addressed to that particular theory”).

The Court will nonetheless address the merits of this argument, or the lack thereof, because it has now been fully addressed both orally and in post-hearing letters by both sides.

Massachusetts v. Equifax

April 2, 2018

Full decision here.

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