McGraw: Drug store case is no class action

John O'Brien Jun. 10, 2010, 9:50am


CHARLESTON, W.Va. (Legal Newsline) - As the battle over where to hear his lawsuit against retail drug stores continues, West Virginia Attorney General Darrell McGraw says the defendants have misconstrued a recent ruling.

McGraw said the ruling, made by a Pennsylvania federal judge in his antitrust lawsuit against Comcast, only further serves to show that his suit against the drug stores in not a class action and should be heard in federal court.

The drug companies said because the Comcast case was ruled a class action, then the suit against them should also be termed one.

"While the Comcast court acknowledged the State's West Virginia Antitrust Act claim was not brought as a class action claim and 'does not match federal Rule 23 perfectly,' the court held the WVAA claim had the essential qualities of a class action: Required notice to unnamed 'class members,' an opportunity to opt-out, and, 'of particular import' to the Comcast court, a judgment binding on those who do not opt-out," says McGraw's notice of supplemental authority, filed Tuesday.

"This case has none of those qualities, and expressly does not limit the rights of absent parties. This case is not a class action, and therefore it must be remanded."

McGraw's lawsuit against Target, Wal-Mart, CVS, Kmart, Kroger and Walgreen alleges the company did not pass savings on generic prescription drugs on to consumers. A federal judge has remanded a similar case against Rite Aid.

The suit against Comcast alleges the company is wrong to require subscribers purchase one of its cable boxes when others are on the market. U.S. District Judge Anita Brody of Pennsylvania wrote that McGraw had no reason to bring the suit under his parens patriae capacity because those affected are consumers.

Brody wrote that 22 similar cases have been consolidated in her jurisdiction by a multidistrict litigation panel.

McGraw's notice brings up a consumer protection suit brought by Missouri Attorney General Chris Koster against Portfolio Recovery Associates.

That ruling "held the State's claims under the consumer protection statute - which does not bind absent parties and does not require notice or an opportunity to opt-out, but does provide for restitution to consumers - were not brought under the state equivalent to federal Rule 23 and therefore the case was not removable as a CAFA class action," McGraw wrote.

McGraw hired Bailey & Glasser and DiTrapano Barrett & DiPiero to pursue the drug store cases. The two firms have contributed more than $60,000 to McGraw's campaign fund over the years, including $11,800 for his 2008 race against Republican Dan Greear.

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