A class action is a class action is a class action

By The West Virginia Record | Mar 25, 2011

Q. When is a class action not a class action?

A. When Darrell McGraw says it isn't.

Our roguish state attorney general must have taken semantics lessons from Humpty Dumpty. Humpty was a clever fellow all right, but he was also a bad egg and no role model, and he got his in the end. You'll recall his big fall, and how all the king's horses and all the king's men couldn't put him back together again. That's what he got for playing fast and loose with words and truths.

Before he cracked up, Humpty had a perplexing conversation with young Alice in Lewis Carroll's Through the Looking-Glass. When Alice objected to his cavalier use of words, Humpty replied scornfully, "When I use a word, it means just what I choose it to mean –- neither more nor less."

So it is with McGraw.

Old Quick Draw filed a class action suit against Rite-Aid, CVS, Walgreen's, Walmart, Kmart, Kroger and Target, accusing them of overcharging for generic drugs and violating state consumer protection law. The only problem was, he wanted to keep the case in lawsuit-friendly Boone County and out of federal court, so he insisted the class action was not a class action.

He was representing the interests of the state in his parens patriae capacity, you see, which is totally different. The case might look like a class action to the untrained eye –- or perhaps even to the trained one -– but it's really one of these parens patriae things. It's a whole different animal, and not something that belongs in federal court.

The case is now in the U.S. Fourth Circuit Court of Appeals, where the pharmacies are arguing that the class-action nature of the case necessitates its being heard in federal court and McGraw, still insisting that his class action is not a class action, remains atop a wall of legal argument.

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