Citing court rules, but perhaps also sympathizing with regular readers of legal filings, a federal judge in Washington found 48 reasons to send a regulatory agency back to the drawing board on a motion to dismiss.

Squeezed into a 52-page brief by the Office of the Comptroller of the Currency last week were 48 footnotes that amounted to more than 300 lines of text. For James Boasberg, a judge on the U.S. District Court for the District of Columbia, it was just too much.

Boasberg ordered the OCC's motion to dismiss “stricken” for violating a local rule that prohibits “excessive footnoting.” The agency's bottom-of-the-page verbosity, Boasberg wrote, “appears to be an effort to circumvent page limitations.”

Now, the OCC has until Wednesday to take another stab and return with a brief containing, as Boasberg ordered, “no more than 10 footnotes containing an aggregate of no more than 50 lines.”

Neither of the two lawyers on the OCC's brief—Douglas Jordan and Peter Koch, both of whom work at the agency—commented Monday on their footnotes. An OCC spokesperson said the agency will resubmit its brief, “as requested by the court.”

The OCC filed its motion to dismiss a challenge to its decision to create a special-purpose national bank charter for financial technology—or so-called “fintech”—companies. In December, then-Comptroller of Currency Thomas Curry announced that the agency would create the new national charter for such nonbank companies to pull fintech firms into the federal regulatory system, a move that threatened to pre-empt and replace state licensing, regulation and supervision responsibilities.

The Conference of State Bank Supervisors, represented by Baker McKenzie partner Jennifer Ancona Semko in Washington, sued in April to block the move, arguing that the “OCC has gone far beyond the limited authority granted to it by Congress.”

The D.C. federal court's local rules, last updated in April, contain this provision: “All pleadings shall appear in 12-pt. font and shall be double-spaced. Footnotes, which shall not be excessive, shall also appear in 12-pt. font.” An earlier version of the rules, from April 2016, did not include the admonition against overusing footnotes.

S. Todd Rogers / The Recorder

Boasberg, on the bench since 2011, is known on the D.C. federal bench for his colorful, easily digestible prose. In a ruling in January, he referenced the TLC song “Waterfalls” in a dispute involving a U.S. Securities and Exchange Commission settlement with JPMorgan Chase & Co. McClatchy once called Boasberg “reliably readable.” The publication in another instance said Boasberg's writing “demonstrates how a simple conversational style can welcome the reader.”

Boasberg's certainly not the first federal judge to call out a party for excessive footnoting. U.S. District Judge Beth Labson Freeman for the Northern District of California in 2015 struck a filing from plaintiffs lawyers at Hagens Berman Sobol Shapiro who filed a 25-page brief loaded with 76 footnotes.

“Every page of the opposition contains at least two—and, on one page, eight—footnotes,” Freeman wrote. She ordered the lawyers to file new papers sans footnotes.

What about the U.S. Supreme Court? Justice Stephen Breyer eschews footnotes in his opinions—the only justice on the current U.S. Supreme Court to take such a position.

In a 1995 interview with the high court's in-house newsletter, The Docket Sheet, he traced his footnote-less approach to advice from Justice Arthur Goldberg, when Breyer was appointed to the U.S. Court of Appeals for the First Circuit. Goldberg, for whom Breyer had clerked, told the new judge: Don't use footnotes.

“And somewhere quite soon after becoming a judge I did stop using footnotes,” Breyer said. “Sometimes it's awkward to use none at all, but if in fact you even use one, then you cannot make the point.” He added: “Either a point is sufficiently significant to make, in which case it should be in the text, or it is not, in which case, don't make it.”

Indeed, the legal writing expert Bryan Garner has long encouraged lawyers and judges to refrain from “putting any discussion” in footnotes. On Twitter earlier this year, Garner wrote: “I detest footnotes! Isn't that coming through? Nothing needed to be read should be put there.”

In the D.C. Circuit, the problem isn't often footnotes but instead the overuse of uncommon acronyms. The court occasionally issues orders to parties either warning them to use acronyms sparingly, or even asking one party or another to refile a brief that spells out the name of the agency or the federal statute.