Subrogation issues are often difficult for me to wrap my head around. But, when I hear or read* Paul Stritmatter discuss it, I find it absolutely fascinating. It's also incredibly important for plaintiffs attorneys to understand, as subrogation issues are ever more frequent these days.

That said, Paul and Brad Moore, of SKWC flew out to Washington D.C. earlier this week, to attend the US Airways v McCutchen oral arguments. Here are Paul's thoughts/comment (also posted on his popular blog, FightSubro.com). 

Everyone can read the transcript and form their own opinions. However, I would like to add some comments because I was there for the argument. Also present were my partner Brad Moore and Mike Nelson who originally brought this issue to Public Justice to litigate in the Rose case. They may want to add comments.

J. Sotomayor showed the most knowledge of the record and so if I am correct, will be assigned the opinion if she has a majority.

1. CJ. Roberts is well known as a procedural stickler. He always looks for ways to dismiss cases for procedural reasons. (Read The Oath by Jeffrey Toobin. It is about the Obama administration v. the US Supreme court. Very well written and worth the time.Toobin explains how this is the way Roberts approached the defense of cases while in practice, and he does the same thing on the court.)  Roberts wants to dismiss the case on the basis that the Plan language was not before the court, only the filed summary document. I would bet he will file a concurring or dissenting opinion on that basis.  It is complicated factually. I think that since the Plan was suing based on its Plan, it should have filed it with the Complaint. In fact it never provided the Plan despite numerous requests until about 4 months before this argument.
2. The decision may well come down to the distinction between subrogation and a reimbursement lien. There were many questions on this distinction, and it seemed to form the primary differences between the parties.
3. Argument for the Plan was by the former Solicitor General, Neal Katyal.  He is very smooth, and very good. Our argument was by Matt Wessler, a staff attorney with Public Justice. He is a brilliant young lawyer, and acquitted himself well. I think he understood the issues better than Katyal, and better than the court.
4. Most of the questions, and most of the supportive indications, related to the application of the Common Fund Doctrine. This is of course the doctrine that says that the Plan must pay its proportionate share of attorney fees and costs.  To me, this is just another part of the equitable defenses that should be allowed, and you cannot separate it from the equitable defenses argument. However, the Solicitor General took exactly this position, ie. the common fund doctrine applies but equitable defenses do not. It is also consistent with what Judge Martinez did at the trial level in our Rose case.
5. J. Scalia was aggressive against us from the start. He seemed to take great delight in his questions which he thought made the day for the Plan. As far as he is concerned, the Plan language controls because that is what was agreed to.
6. My prediction (and remember, I am always an eternal optimist) is that Sotomayor, Breyer, Kennedy and Ginsberg are solidly with us.  Scalia and Roberts are solidly against us.  Both Kagan and Alioto seemed favorable early in the arguments, and then seemed against us later.  I am not sure about either one of them. And then Thomas. Did you read his question?  Did you miss it?  It was very significant. It is on one of the pages I am sure.  Oh wait, that’s right, Thomas hasn’t asked a question in 15 years or more. Who knows what he is thinking.  Since he always follows Scalia. I assume we lose him.
7. So my prediction is we win 6-3. But I am very concerned that we may only win the common fund argument, and not the equitable defenses argument. While that would certainly be a win for us, the equitable defense argument is the key to our claims, and I will be very, very disappointed if we lose that argument.
8. There is much more that could be said, but I will leave it at that for now.  

Paul: Thank you for sharing your insights and perspective. Look forward to SCOTUS' opinion, and seeing your predictions come true... 

*For an in-depth discussion in print, read Paul Stritmatter's booklet forthcoming soon as a Kindle publication.