Pharmacies ask for rehearing of class action debate

By John O'Brien | Jun 15, 2011


RICHMOND, Va. -- A group of pharmacies sued by West Virginia Attorney General Darrell McGraw is appealing a federal appeals court's decision to send the case to state court.

The U.S. Court of Appeals for the Fourth Circuit in May rejected the defendants' argument that McGraw had filed what was essentially a class action lawsuit against them. As a class action, they argued, the case belonged in federal court and not in Boone County Circuit Court, where it was first filed.

The three-judge panel that heard the case ruled 2-1 for McGraw, and now the defendants seek a rehearing in front of the entire Fourth Circuit in a petition filed June 3.

"(T)he majority's decision directly conflicts with the authoritative precedent from the only other federal appellate court to have addressed the issue," the petition says, noting a pair of 2008 decisions that involved Hurricane Katrina.

"(T)he Fifth Circuit held that even where an attorney general is the nominal plaintiff, an action is removable under the (Class Action Fairness Act) when it seeks reimbursement for a subgroup of state citizens."

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