Brian Glasser

MINNEAPOLIS (Legal Newsline) - Attorneys for a group of prescription drug retailers say the actions of plaintiffs attorneys suing them should not be tolerated and that their ignorance of federal class action rules is no excuse for their behavior.

The attorneys wrote Friday that plaintiffs lawyers - including Bailey & Glasser of Charleston, W.Va. - are only asking for their case to be remanded to state court because they received an adverse decision by the federal court. The drug stores made their argument in response to the plaintiffs' motion to remand.

Former U.S. District Judge James Rosenbaum once called the allegations made in the complaint - that the drug stores did not pass savings on generic drugs onto consumers - "laughable" and told the plaintiffs they could amend their complaint. However, Rosenbaum remanded the case, though the U.S. Court of Appeals for the Eighth Circuit overturned that decision.

The drug stores - which include CVS, Target and Wal-Mart - noted that it took more than 100 days from the time the suit was removed to federal court for the plaintiffs to ask for remand.

"This abuse of the federal forum cannot be tolerated," attorneys for the stores wrote. "Indeed, preventing such blatant gamesmanship is particularly important in this case. Following the Eighth Circuit's guidance, this court will be the first to address the local controversy provision as a non-jurisdictional basis for remand."

The local controversy provision of the Class Action Fairness Act "operates as an abstention doctrine, which does not divest the district court of subject matter jurisdiction," the Eighth Circuit ruled in March.

"Endorsing plaintiffs' forum-shopping here would surely invite other class action lawyers to follow suit. Nor do Plaintiffs have any meaningful response to the Eighth Circuit's reasons for remanding this case, as set forth in its opinion," attorneys for the drug stores wrote.

"Plaintiffs' sole 'excuse' - that their counsel did not know about the local controversy provision - does not even begin to explain (let alone justify) their tactics.

"The maxim 'ignorance of the law is no excuse' is well known. It should apply with special vigor to practitioners of the law."

The generic drug-pricing suits filed by Bailey & Glasser have not attained much success:

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

-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; and

-Representing West Virginia Attorney General Darrell McGraw, Bailey & Glasser is also locked in a fight over whether the lawsuit should be heard in federal court, with the drug stores claiming it is a class action.

A separate lawsuit brought on behalf of McGraw's office against one defendant has been remanded to state court. Also hired by McGraw was DiTrapano Barrett & DiPiero. 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.

U.S. Magistrate Judge Janie Mayeron will rule on Bailey & Glasser's remand motion. The firm said in April that their request was made within a reasonable time frame and that the Eighth Circuit has ruled that it is never too late for a court to abstain from exercising jurisdiction.

"Courts will consider abstention at any stage of a litigation because abstention doctrines serve important interests of federalism and comity between state and federal courts that do not elapse over time," it wrote. "CAFA similarly serves important federalism and interstate comity interests by extending jurisdiction of the federal courts to national class actions while ensuring that class actions that are local in nature (such as this one) are resolved in state courts."

The firm adds that no discovery has been undertaken and that the defendants have not been prejudiced by the delay.

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