Drug stores appeal Minn. class action ruling

By John O'Brien | Dec 6, 2011


MINNEAPOLIS (Legal Newsline) - Several drug stores sued in Minnesota by a West Virginia law firm are appealing a ruling that says the class action lawsuit should be heard in a state court.

The drug stores -- which include CVS, Target and Wal-Mart -- are alleged to have not passed savings on generic drugs to consumers in the lawsuit. A district judge has determined that the plaintiffs -- who are represented by Bailey and Glasser of Charleston, W.Va. -- timely filed a motion to remand the case after the drug stores had it removed to federal court.

They filed their appeal to the U.S. Court of Appeals for the Eighth Circuit this week.

The remand motion was submitted more than 100 days after the drug stores removed the case to federal court and after Rosenbaum had harshly dismissed the original complaint. The drug stores say the plaintiffs continued to litigate the case after it was removed.

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."

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."

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 and adopted a magistrate's recommendation that the case be remanded.

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 has 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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