WASHINGTON – A recent ruling in a case brought by West Virginia Attorney General Darrell McGraw makes it harder for out-of-state defendants to remove class actions to federal court, the Washington Legal Foundation is arguing.

The WLF, which says its mission is the defense and promotion of free enterprise, filed an amicus brief Friday with the U.S. Supreme Court while the court is deciding if it will hear the appeal of a group of drug stores. McGraw, through private attorneys, sued the drug stores, claiming they do not pass savings on generic drugs to consumers.

The six stores said McGraw's case is a class action and removed it to federal court under the Class Action Fairness Act. The U.S. Court of Appeals for the Fourth Circuit said it was not a class action and remanded it to state court.

"Amici believe that out-of-state defendants, in order to ensure that their cases will be heard in an impartial forum, ought to be permitted to remove the cases from state to federal court," the brief says.

"Congress adopted CAFA to ensure that the right of removal is protected for most such defendants, particularly in cases seeking significant damages and in which the plaintiff (as here) is suing in a representative capacity on behalf of numerous individuals.

"Amici are concerned that the decision ... if not corrected, will allow plaintiffs' lawyers to "game" the system to prevent removal – the very scenario that Congress sought to avoid when it adopted CAFA."

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