CHICAGO – (November 16 , 2018) — DRI–The Voice of the Defense Bar has filed a merits-stage amicus brief in the U.S. Supreme Court supporting the petitioner in Home Depot U.S.A., Inc. v. Jackson, No. 17-1471. The brief was filed through DRI’s Center for Law and Public Policy, whose core objectives include achieving fairness in class-action litigation.
To curb state-court class-action abuses, Congress, in 2005, enacted the Class Action Fairness Act (CAFA). One of CAFA’s key provisions, 28 U.S.C. §1453(b), authorizes “any defendant” to remove a qualifying interstate class-action from state to federal court. To circumvent this expanded removal provision—and thereby keep consumer class-actions in plaintiff-friendly state courts—class-action plaintiffs’ lawyers have been enlisting defendants in ordinary state-court debt-collection suits to file third-party class-action complaints or class-action counterclaims against additional, national corporate defendants such as Home Depot.
The question presented by the Home Depot appeal is whether such an additional class-action defendant is “any defendant” for purposes of removal under CAFA. In a petition-stage amicus brief, DRI argued that Supreme Court review is needed because all four circuits that have addressed this issue have held that §1453(b) does not extend to such defendants. The basis for their holdings is a 1941 Supreme Court case which held that a counterclaim defendant that was the original plaintiff in a debt-collection suit cannot remove a case that it filed in state court.
DRI’s merits-stage amicus brief argues that these circuit court rulings conflict with CAFA’s text and purpose, which are intended to ensure that national class actions are adjudicated (or settled) in federal, not state, courts. The amicus brief refers to CAFA’s accompanying Senate Report, which recounts in detail many types of state-court class action abuses, such as certifying even frivolous class actions in order to force settlements which are lucrative for plaintiffs’ lawyers and virtually meaningless for individual class members. The Home Depot appeal is expected to be argued in January and decided prior to June.
The complete text of the DRI brief can be found here.
Amicus brief author Lawrence S. Ebner, founder of Capital Appellate Advocacy PLLC in Washington, D.C. and a fellow of the American Academy of Appellate Lawyers, serves as Chair of the DRI Center for Law and Public Policy’s Amicus Committee. He is available for interview or expert comment through DRI’s Office of Public Policy.
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