United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-3909

___________________________

In re: Target Corporation Customer Data Security Breach Litigation

------------------------------

Jim Sciaroni

lllllllllllllllllllllObjector - Appellant

v.

Consumer Plaintiffs

lllllllllllllllllllll Plaintiff - Appellee

Target Corporation

lllllllllllllllllllll Defendant - Appellee

___________________________

No. 15-3912

___________________________

In re: Target Corporation Customer Data Security Breach Litigation

------------------------------

Leif A. Olson

lllllllllllllllllllllObjector - Appellant

v.
Consumer Plaintiffs

lllllllllllllllllllll Plaintiff - Appellee

Target Corporation

lllllllllllllllllllll Defendant - Appellee

___________________________

No. 16-1203

___________________________

In re: Target Corporation Customer Data Security Breach Litigation

------------------------------

Leif A. Olson

lllllllllllllllllllllObjector - Appellant

v.

Consumer Plaintiffs

lllllllllllllllllllll Plaintiff - Appellee

Target Corporation

lllllllllllllllllllll Defendant - Appellee

___________________________

No. 16-1245

___________________________

In re: Target Corporation Customer Data Security Breach Litigation

-2-
------------------------------

Jim Sciaroni

lllllllllllllllllllllObjector - Appellant

v.

Consumer Plaintiffs

lllllllllllllllllllll Plaintiff - Appellee

Target Corporation

lllllllllllllllllllll Defendant - Appellee

___________________________

No. 16-1408

___________________________

In re: Target Corporation Customer Data Security Breach Litigation

------------------------------

Leif A. Olson

lllllllllllllllllllllObjector - Appellant

v.

Consumer Plaintiffs

lllllllllllllllllllll Plaintiff - Appellee

Target Corporation

lllllllllllllllllllll Defendant - Appellee

-3-
____________

Appeals from United States District Court 

for the District of Minnesota - Minneapolis

____________

 Submitted: February 15, 2017

 Filed: May 2, 2017

____________

Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge.

1

____________

BENTON, Circuit Judge.

On February 1, 2017, this court remanded this case for further consideration

of class certification, and reversed the imposition of a $49,156 appeal bond. In re

Target Corp. Customer Data Sec. Breach Litig., 847 F.3d 608 (8th Cir. 2017). 

Appellant Leif A. Olson moved to amend the second sentence in footnote 3 of the

opinion:

In the district court, Olson also argued that the settlement did not satisfy

3

Rule 23’s superiority or predominance requirements, the settlement

terms were unfair on account of self-dealing by class counsel, and the

attorneys’ fee provision was unreasonable. Though the court rejected

all of these arguments, Olson appeals only the district court’s ruling on

certification.

Olson contendsthat he appealed the fairness of the settlement and the reasonableness

of the attorneys’ fees. The motion to amend is granted.

The Honorable Leonard T. Strand, United States District Judge for the

1

Northern District of Iowa, sitting by designation.

-4-
I.

This case follows Target’s announcement that third parties compromised the

payment-card data and personal information of up to 110 million Target customers. 

Before the district court, appellants Olson and Jim Sciaroniseparately objected to the

settlement proposed by Target and a class of consumer-plaintiffs. After the district

court overruled Olson’s and Sciaroni’s objections and approved the settlement, they

filed separate notices of appeal. This court consolidated those appeals, making

Olson’s and Sciaroni’s appellant briefs due the same day, April 7.

Olson filed his brief on time. Olson’s brief did not address attorneys’ fees or

settlement fairness. Sciaroni submitted his brief two hours later, but it was deficient

and not accepted for filing. Sciaroni submitted a revised brief six days later. The

next day, Olson filed a letter. While labeled on the docket as a “28(j) citation,” the

letter explicitly invokes Federal Rule of Appellate Procedure 28(i). Olson wrote that

he “joins Sections II and IV of the Opening Brief of James Sciaroni, with the

exception of the sentence on page 35 accusing the settling parties of collusion.” 

Sections II and IV of Sciaroni’s brief address attorneys’ fees and settlement fairness.

II.

Rule 28(i) provides: “In a case involving more than one appellant or appellee,

including consolidated cases, any number of appellants or appellees may join in a

brief, and any party may adopt by reference a part of another’s brief.” The Rule does

not state how a party “may adopt” part of another’s brief. This court does not have

a local rule on point. The courts of appeals, however, routinely permit Rule 28(i)

adoption by letter. See United States v. Harris, 740 F.3d 956, 969 n.7 (5th Cir.

2014); United States v. Pryor, 474 F. Appx. 831, 832 n.2 (2d Cir. 2012); United

States v. Cocchiola, 358 F. Appx. 376, 378 n.3 (3d Cir. 2009). Olson’s letter adopted

by reference part of Sciaroni’s brief pursuant to Rule 28(i).

-5-
The consumer-plaintiffs and dissenting opinion propose several reasons why

Olson’s Rule 28(i) letter did not effectively adopt part of Sciaroni’s brief. None of

these reasons withstand scrutiny.

A.

The consumer-plaintiffs and dissenting opinion suggest that Rule 28(i) does not

allow a party to adopt argument on an issue that the party did not itself raise in its

principal brief. True, Rule 28(a) requires an appellant’s brief to state the issues

presented for review. Rule 28(i), however, allows parties to raise issues they did not

raise in their own briefs—in fact, it allows a party not to file a brief at all and simply

“join in” another’s brief. Stated differently, Rule 28(a) provides one way for parties

to raise issues on appeal, and Rule 28(i) provides another.

The consumer-plaintiffs and dissenting opinion argue that the appellant’s brief

is the only way a party may raise an issue on appeal. They invoke United States v.

Bohmont, 413 F. Appx. 946 (8th Cir. 2011), but they misread it. There, appellant

Wade Bohmont filed a brief raising five issues. Appellant Colton D. Inmon filed his

brief four months later. Inmon listed two issues, both raised by Bohmont in his brief. 

Inmon “also included a separate ‘Statement Regarding Adoption of Briefs of Other

Parties,’” saying he “hereby adoptsthe factual and legal argumentsset out in the brief

of appellant Wade Bohmont.” Id. at 949 n.4. The court “construe[d] that statement

as an effort by Inmon pursuant to Federal Rule of Appellate Procedure 28(i) to adopt

the factual and legal arguments made in Bohmont’s brief with respect to the two

specific issues listed by Inmon for review.” Id. In the context of Inmon’s adoption

statement, this interpretation makes sense. Inmon filed his brief months after

Bohmont’s, so by listing two issues that Bohmont had listed and generically stating

that he adopted Bohmont’s arguments, Inmon indicated he intended to raise only

those two issues. The court’s statement that it “will not permit” Inmon to adopt

Bohmont’s other issues is not (as the dissenting opinion contends) a universal

-6-
prohibition on adopting arguments not listed in a principal brief’s statement of issues. 

See id. Rather, it is a specific prohibition fit to the facts of Bohmont: Inmon filed his

brief well after Bohmont’s, listed specific issues that Bohmont also listed, and

generically adopted “the factual and legal arguments set out in” Bohmont’s brief.

Here, unlike Bohmont, Olson (the party adopting part of another’s brief) filed

his brief before Sciaroni. HisRule 28(i) letter clearly identifies the parts of Sciaroni’s

brief that he is adopting. The dissent’s rule would make adoption by a first-filing

party like Olson extraordinarily cumbersome: If the first filer did not correctly

predict the issues that other parties would raise, it would have to move the court for

permission to amend its first-filed brief to add issues to its statement of issues, and

receive that permission, before it could join in those unpredicted issues. Rule 28(i)

renders unnecessarythat time-consuming, formalistic exercise by permitting adoption

of additional issues through a letter like Olson’s.

B.

The dissenting opinion argues that allowing adoption in this instance would

permit Olson to effectively violate the principal-brief word limit imposed by Rule

32(a)(7)(B)(i). But Rule 32(a)(7)(B)(i) places a word limit on principal briefs. 

Olson’s adoption does not cause his principal brief to exceed the word limit.

The Rules impose no limit on the volume of words one party may adopt. And

for good reason. Permitting unlimited adoption of briefs will generally not cause the

problems that word limits are designed to avoid, since courts and parties already have

to read and respond to the briefs being adopted. There is, therefore, generally no cost

to permitting unlimited adoption. The dissenting opinion’s proposal, on the other

hand, would likely require courts and parties to read and respond to additional

requests for permission to file overlength briefs, taxing judicial resources and

increasing the costs of litigation. Making invocation of Rule 28(i) more onerous

-7-
could also lead to “needless repetition of arguments,” exacerbating the problem of

too-long briefs. See 16AA Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 3974.5 (4th ed. 2017).

The dissenting opinion points out that in MicrosoftCorp. v. DataTern, Inc., the

FederalCircuitstated that “incorporation” under Rule 28(i) “cannot be used to exceed

word count.” Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 910 (Fed. Cir. 2014). 

This court should not follow the Federal Circuit’s Microsoft approach for several

reasons. First, it is dicta: the case was not a consolidated appeal and did not fall

under Rule 28(i). Id. Second, the Federal Circuit has narrowly characterized the

opinion as standing for the proposition that “co-parties in non-consolidated appeals

cannot use incorporation pursuant to FRAP 28(i) to exceed word count limits

prescribed by FRAP 32(a)(7).” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d

1245, 1252 n.2 (Fed. Cir. 2014) (emphasis added). Third, and most importantly, the

approach is wrong. Nothing in Rule 28(i) suggests that parts of briefs adopted by

reference should be treated as literally incorporated into a party’s principal brief for

word-count purposes. And, as discussed, the approach undermines the policies that

word limits serve.

C.

The dissenting opinion contends that Olson’s Rule 28(i) letter allowed him to

avoid the consequences of filing a late brief under Rule 31(c). While Rule 31(c)

permits an appellee to move to dismiss an appeal if an appellant fails to timely file a

brief, it does not require the courts to decline to consider claims contained in latefiled briefs. Cf. United States v. Williams, 187 F.3d 645 (8thCir. 1999) (unpublished

table opinion) (declining to strike appellee brief filed one day late, where appellant

filed reply brief and there was “no indication that he was prejudiced by” the

appellant’s late filing). Here, even if Olson’s Rule 28(i) letter were treated as a brief

under Rule 31(c), the consumer-plaintiffs did not make a Rule 31(c) motion. The

-8-
consumer-plaintiffs also have not argued that they were prejudiced by Olson’s Rule

28(i) letter, which he submitted just one day after Sciaroni’s brief. This case does not

present this court with any question about the relationship between Rule 28(i) letters

and brief-filing deadlines.

D.

The consumer-plaintiffs argue that Olson cannot adopt Sciaroni’s arguments

because they are “fact-bound.” True, when arguments are fact-specific to one party,

another party cannot adopt those arguments without further explanation. United

States v. McDougal, 133 F.3d 1110, 1114 (8th Cir. 1998). The settlement-fairness

and attorneys-fees arguments that Olson adopted do not include any class-memberspecific facts, so this limitation on adoption does not apply.

* * * * * * *

Olson is correct that, due to the 28(i) letter, the second sentence of footnote 3

should be modified. The motion to amend the opinion is granted. Footnote 3 is

replaced with the following:

In the district court, Olson also argued that the settlement did not satisfy

3

Rule 23’s superiority or predominance requirements, the settlement

terms were unfair on account of self-dealing by class counsel, and the

attorneys’ fee provision was unreasonable. The court rejected all of

these arguments. In addition to challenging the district court’s ruling on

certification in his principal brief, Olson filed a Rule 28(i) letter joining

the sections of Sciaroni’s brief alleging self-dealing by class counsel

(except a sentence accusing the settling parties of collusion) and

unreasonable attorneys’ fees. On remand, therefore, Olson may raise the

issues of self-dealing and attorneys’ fees.

-9-
SHEPHERD, Circuit Judge, dissenting. 

The courts of appeals typically do not care how partiesinvoke Rule 28(i). See,

e.g., United States v. Isgar, 739 F.3d 829, 834 n.1 (5th Cir. 2014) (allowing adoption

by both motion and letter). This islikely because, as apparent from casesthe majority

cites, a party’s decision to adopt the arguments of a co-party ordinarily is not met with

opposition or controversy. Here, however, there is a genuine dispute between

opposing parties, which has brought the court’s attention to the need for clarity as to

Rule 28(i)’s limited scope. That need is neglected in the court’s Order amending the

opinion. I therefore respectfully dissent.

Olson’s letter—erroneously labeled in the docket as a “28(j) citation”—in fact

invoked Federal Rule of Appellate Procedure 28(i), apparently as a matter of

unfettered right, in order to adopt new issuesthat Olson’s principal brief intentionally

abandoned. See Appellant’s Br. 21. Incorporation in this case not only allows Olson

to expand the issues he presents for review in his previously filed brief, it also

condonesthe violation ofrules governing word limits and filing deadlines, all without

permission of the court. For the reasons that follow, I conclude that Olson’s

invocation of Rule 28(i) was insufficient to preserve the issues of self-dealing and

attorneys’ fees, and I would therefore deny Olson’s motion. 

 First, while Rule 28(i) allows parties to adopt each other’s appellate

arguments in some circumstances, it should not be read to allow a party to multiply

the issues that his briefing raises for review. In United States v. Bohmont, Appellant

Inmon set forth only two issues in his brief and filed a separate statement adopting

the entirety of Co-Appellant Bohmont’s brief, which included additional issues. 413

F. App’x 946, 949 n.4 (8th Cir. 2011). The court remarked: 

We construe [Inmon’s] statement as an effort by Inmon pursuant to

Federal Rule of Appellate Procedure 28(i) to adopt the factual and legal

-10-
arguments made in Bohmont’s brief with respect to the two specific

issues listed by Inmon for review, and we permit it. We will not permit

the adoption statement to expand the listing of the two specific issuesset

out in Inmon’s formal Statement of the Issuesto include the other issues

listed by Bohmont in his Statement of Issues. 

Id. (emphasis added). 

Here, Olson seeks to expand the two issues stated in his principal brief—class

certification and the appeal bond—to include two entirely different issues raised by

Sciaroni—self-dealing and attorneys’ fees. Under Bohmont, this effort should fail;

Olson should only be allowed to adopt those arguments of Sciaroni’s that relate to

class certification and the appeal bond.

Second, Rule 28(i) should not be used to undertake end-runs around other

procedural rules. Consider, for instance, Rule 32(a)(7)(B)(i), which set forth a

14,000-word limit on principal briefs at the time Olson’s principal brief was filed.

2

Olson’s brief is certified as containing 13,909 words, excluding the parts that are

exempted from the word limit—only 91 words short of the limit. If Olson is

permitted to incorporate the relevant issues and accompanying arguments in

Sciaroni’s brief by means of Rule 28(i), he will effectively evade Rule 32(a)(7)(B)(i). 

The Federal Circuit addressed this issue in Microsoft Corp. v. DataTern, Inc., where

the court held that Rule 28(i) “cannot be used to exceed word count,” as such use

would be “fundamentally unfair” to the other parties. 755 F.3d 899, 910 (Fed. Cir.

2014). 

Another rule vulnerable to Olson’s use of Rule 28(i) is Rule 31(c), which sets

forth the consequences of a party’s failure to timely file a brief. Appellants’ principal

briefs were due April 7, 2016. One week later, Olson filed the 28(i) letter, adopting

Rule 32(a)(7)(B)(i) has since been amended to provide a word limit of 13,000. 2

-11-
substantial new issues that he intentionally excluded in his principal brief. Had

Olson’s representatives missed the April 7 deadline in order to assert the issues and

arguments themselves, the consumer-plaintiffs would have had grounds to request

dismissal of Olson’s appeal. See Fed. R. App. P. 31(c). Olson’s invocation of Rule

28(i) therefore allowed himto raise untimely issues without risking the consequences

of filing a late brief. At a minimum, counsel should have sought leave of the court

to expand the issues after the filing deadlines terminated. This would have satisfied

the default procedural rules, see Fed. R. App. P. 27(a)(1), and invited the court to

consider whether Rules 31 and 32 (and any other applicable rules) should yield to

Olson’s wish to multiply the issues in his appeal. 

In sum, Rule 28(i) is meant to augment, not undermine, the procedural rules

governing appellate briefs. It is not a source of unlimited recourse for parties such

as Olson who omit issues and fail to abide by those rules. To avoid unduly expanding

Rule 28(i), and to preserve the integrity of other applicable rules, I would deny the

motion to amend the opinion. 

______________________________

-12-