A class action by any other name is still a class action
News Service Sep. 30, 2011, 11:33am
In Aesop's fable of the wolf in sheep's clothing, the hungry predator drapes a sheepskin over himself to deceive the shepherd and slip into the fold undetected. Unfortunately for the wolf, the shepherd also is hungry and culls a sheep from the flock to slaughter for his dinner. As fate would have it, the "sheep" he selects is the wolf in disguise.
The moral of the story is that looks can be deceiving. Just because something has the appearance of a certain thing or is labeled as such doesn't mean that's what it is.
For example, a state attorney general might initiate a class action but disguise it as a parens patriae suit so as to keep it from being removed to federal court.
This is, in fact, what our own Darrell McGraw did when he filed suit against several drug store chains, accusing them of overcharging for generic drugs and violating state consumer protection law.
Old Quick Draw wanted to keep the case in lawsuit-friendly Boone County, so he claimed he was representing the interests of the state in his parens patriae capacity which under certain conditions allows a state attorney general to bypass federal jurisdiction.
The drug stores argued that the case was really a class action and got it removed to federal court. McGraw appealed and the U.S. Fourth Circuit decided in his favor.
Now the drug stores are asking the U.S. Supreme Court to review that decision.
Old Quick Draw may have succeeded in convincing the Fourth Circuit Court that his class action is not a class action, but the Supreme Court is not likely to fall for his ruse.
The Class Action Fairness Act (CAFA) applies to cases like this one, protecting the right of class action defendants to remove their cases to federal court.
The Supreme Court should affirm that right, and expose McGraw for the sly fox he is.