RICHMOND, Va. (Legal Newsline) - The Washington Legal Foundation claims West Virginia Darrell McGraw is acting like a class action lawyer and a decision saying otherwise should be reviewed.

WLF was joined by the Allied Educational Foundation in an amicus brief accepted last month by the U.S. Court of Appeals for the Fourth Circuit, which ruled in May that McGraw's lawsuit against a group of prescription drug retailers is not a class action and should be heard in state court.

The group of pharmacies -- which includes Wal-Mart, Target, CVS, Walgreen, Kroger and Kmart -- has petitioned for a review of the decision by entire roster of Fourth Circuit judges. May's decision was a 2-1 ruling.

WLF's brief says the decision put the Fourth Circuit in conflict with a decision from the Fifth Circuit in Louisiana Attorney General Buddy Caldwell's lawsuit against Allstate Insurance Co.

"The panel held that for a representative suit to constitute a 'class action' within the meaning of (the Class Action Fairness Act), 'the representative party must be part of the class and possess the same interest and suffer the same injury as the class members,'" the brief says.

"Thus, the panel held, because the West Virginia Attorney General does not possess claims typical of those held by consumers who allegedly were overcharged by CVS, this suit is not a 'class action' as defined by (federal law). The Fifth Circuit has concluded precisely the opposite."

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