W.Va. firm's class action sent to Minn. court

John O'Brien Nov. 29, 2011, 10:20am

Brian Glasser

MINNEAPOLIS (Legal Newsline) - A class action lawsuit filed by a West Virginia law firm will be remanded to a Minnesota state court.

U.S. District Judge Michael Davis on Nov. 18 adopted Magistrate Judge Janie Mayeron's recommendation that the case, filed against a group of drug stores, be remanded to Hennepin County District Court.

The U.S. Court of Appeals for the Eighth Circuit ruled earlier this year that the court should decide if a motion to remand filed by Bailey & Glasser of Charleston, W.Va., was done so in a timely manner. It was submitted more than 100 days after the drug stores removed the case to federal court and after a judge had harshly dismissed the original complaint.

It was also filed after a Michigan federal court remanded three similar lawsuits brought by the firm. That was done on Dec. 1, 2009, and eventually the cases were dismissed.

"(T)he court is satisfied that plaintiffs and their counsel did not know that they had a reasonable basis for pursuing a remand until after the Michigan court issued its remand decision on Dec. 1, 2009," Mayeron wrote in October.

"In fact, the evidence before this court establishes that plaintiffs did not believe that the (Class Action Fairness Act) local controversy exception applied to this case, even after the Michigan court raised the issue at the pretrial conference."

The drug stores -- which include CVS, Target and Wal-Mart -- are alleged to have not passed savings on generic drugs to consumers. They argue that the plaintiffs continued to litigate the case after it was removed and only asked for remand after former U.S. District Judge James Rosenbaum dismissed the complaint.

Rosenbaum allowed the plaintiffs to amend the complaint then granted remand. When the drug stores appealed, the Eighth Circuit said the district court should rule on the timeliness issue. Judge Michael Davis was assigned the case after Rosenbaum retired.

In November 2009, Rosenbaum was annoyed that the complaint, filed against 13 defendants on behalf of unions that provide health care for their members, contained specific pricing information about only two of them.

"(T)his Complaint utterly fails to state a cause of action on any basis. There are no, none, factual allegations touching any defendant other than CVS and Walgreen's," Rosenbaum said.

"There being no facts from which a fact finder could infer any liability concerning (the other defendants), and you asked me to sustain a complaint based upon that. It's not only laughable, it's absolutely reprehensible.

"There's not a lawsuit here. There is not a claim. There is not an allegation. I've got words on a page."

The lawsuits in Michigan were dismissed by a state judge because the only specific pricing information was obtained by a West Virginia whistleblower who worked at Kroger.

The firm is also representing West Virginia Attorney General Darrell McGraw's office in a suit filed in the Mountain State. The U.S. Supreme Court on Monday decided not to hear the stores' appeal of a Fourth Circuit ruling that remanded the case.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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