John O’Brien reported in Legal Newsline earlier this week that the Fourth Circuit granted the motion of several pharmacy chains to stay its decision in West Virginia v. CVS Pharmacy pending a petition for certiorari. In the underlying case, the Fourth Circuit held, by a 2-1 vote, that a parens patriae action brought by West Virginia’s Attorney General (represented by two private law firms) was not removable under the Class Action Fairness Act (“CAFA”). Judge Niemeyer wrote the opinion, joined by Judge Davis. Judge Gilman (CA6, sitting by designation) dissented. The decision affirms Judge Copenhaver (SDWV).
The issue of when a federal court can look through the form of a parens patriae case to determine that the case actually is a removable “class action” or “mass action” under CAFA may be ripe for review by the Supreme Court, in this or some other case. For a decision that, on a broad level, conflicts with the Fourth Circuit’s decision, see the Fifth Circuit’s split decision in Louisiana v. Allstate Ins. Co., 536 F.3d 418 (2008). (I use the qualifier “on a broad level” because the Fifth Circuit decision held that the removed action qualified as a “mass action” under CAFA whereas the issue in the Fourth Circuit case is whether the removed action qualified as a “class action.” Notwithstanding this difference, the cases have many similarities.)
Prediction: If and when the Supreme Court addresses this issue, the Court’s decision will be in line with the conclusion reached by the Fourth Circuit and Mr. Carswell.
(N.B. The title of the post comes from the concluding paragraph of Judge Gilman’s dissent: “In sum, there is a saying that if something looks like a duck, walks like a duck, and quacks like a duck, it is probably a duck. To my mind this case “quacks” much more like a CAFA class action than a parens patriae case. I would therefore reverse the judgment of the district court and allow this case to proceed in federal court.”)