Who is Suing Who, and Why?January 17, 2019
Early in law school, one of my esteemed (but perhaps grammatically challenged) professors explained that the key to understanding any case is figuring out “who is suing who, and why?” On January 15, the Justices very well may have been asking themselves that question during the Supreme Court’s hearing in Home Depot USA, Inc. v. Jackson, No. 17-1471. In fact, in an apparent allusion to “Who’s On First,” Justice Breyer likened the issue in Home Depot to “an Abbott and Costello movie” (watch here). Some of my observations about the hearing are quoted in an article written by Amanda Bronstad for Critical Mass, Law.com’s weekly briefing on class actions and mass torts.
As I explained in a post when the Court granted review last Fall, the question presented by Home Depot involves the right of “any defendant” in a putative class action to remove (i.e., transfer from state court to federal court) an otherwise qualifying class-action complaint under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1453(b). The twist in Home Depot is that although the case started out as a seemingly simple, state-court debt collection suit filed by a credit card company against defendant Jackson, he joined Home Depot into the litigation and filed a counterclaim class-action complaint against that company.
So the principal question is whether a third-party class-action counterclaim defendant such as Home Depot falls within CAFA’s right to remove even though the Court held almost 80 years ago in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941), that a counterclaim defendant that was the original plaintiff cannot remove its own state-court suit to federal court. I had the privilege of filing both petition-stage and merits-stage amicus briefs on behalf of DRI-The Voice of the Defense Bar urging the Court to review the issue hold that CAFA removal encompasses such third-party defendants. Doing so would be consistent with both the language of § 1453(b), and with CAFA’s objective of mitigating state-court class-action abuses by facilitating removal of high-stakes national or interstate class actions to federal court.