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U.S. Supreme Court Rejects Third-Party Removal Under Class Action Fairness Act

By Trent Taylor & Andrew Gann on May 31, 2019
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On Tuesday May 28, 2019, the United State Supreme Court declined to afford state court third-party, class action defendants the ability to remove a class action to federal court. See Home Depot U.S.A., Inc. v. Jackson, 17-1471 (May 28, 2019).

In Jackson, Citibank, N.A., filed a debt-collection action against George Jackson in North Carolina state court. Jackson answered this action and filed his own claims: (1) an individual counterclaim against Citibank and (2) a third-party class-action against Home Depot U.S.A., Inc., and Carolina Water Systems, Inc.

After Citibank dismissed its claims against Jackson, Home Depot filed a notice of removal pursuant to 28 U.S.C. §§ 1332, 1441, 1446, and 1453. Jackson subsequently moved to remand which the federal district court granted and the United States Court of Appeals for the Fourth Circuit affirmed.

After oral argument, the United States Supreme Court affirmed the Fourth Circuit in a 5-4 decision delivered by Justice Thomas. In the opinion, the Court held that 28 U.S.C. § 1441(a) does not permit removal by a third-party counterclaim defendant as such removal is limited to the original defendants as held in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941). The Court also held that 28 U.S.C. § 1453(b) does not compel a different outcome. Although § 1453(b) states “may be removed by any defendant” as opposed to § 1441(a)’s “the defendant”, the Court held that this clause does not alter the limitation on who can remove a class action.

 

In the end, Jackson affirmed what Judge Niemeyer over a decade ago had called “an unfortunate loophole in the Class Action Fairness Act that only the Supreme Court can now rectify.” Palisades Collections LLC v. Shorts, 552 F.3d 327, 345 (4th Cir. 2008). Now, it is up to Congress to rectify this “loophole.” Until then, however, the decision in Jackson presents an additional challenge for third-party defendants in class actions.

Photo of Trent Taylor Trent Taylor

Trent, co-leader of McGuireWoods’ Food & Beverage Industry Team, focuses on defending complex class actions with an emphasis on product liability matters, public and private nuisance litigation, environmental contamination suits, and food, cosmetic, and supplement labeling (including CBD) and safety issues.

Read more about Trent TaylorEmail
Photo of Andrew Gann Andrew Gann

Drew is a co-leader of McGuireWoods’ Crisis Management & Incident Response Practice Group. He represents companies in class actions, mass torts, and high-stakes commercial litigation—particularly when regulatory scrutiny, reputational risk, and catastrophic loss converge. He brings deep experience guiding clients through multidistrict litigation…

Drew is a co-leader of McGuireWoods’ Crisis Management & Incident Response Practice Group. He represents companies in class actions, mass torts, and high-stakes commercial litigation—particularly when regulatory scrutiny, reputational risk, and catastrophic loss converge. He brings deep experience guiding clients through multidistrict litigation, punitive damages exposure, and investigations by federal and state regulators, including the National Transportation Safety Board (NTSB), the U.S. Department of Transportation (DOT), the Pipeline and Hazardous Materials Safety Administration (PHMSA), the Consumer Product Safety Commission (CPSC), public utility commissions, and state attorneys general.

Read more about Andrew GannEmail
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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Class Action Countermeasures
  • Organization:
    McGuireWoods LLP

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