State of West Virginia v. CVS, et al.

Fourth Circuit Order addressing CAFA and Affirming Remand of Attorney General Consumer Act Case


The Court of Appeals for the Fourth Circuit addressed an appeal (under CAFA) of a remand order by the United States District Court for the Southern District of West Virginia. In affirming remand, the Fourth Circuit denied CAFA's applicability to an action brought by the State of West Virginia, by its Attorney General, under West Virginia's Consumer Protection Act. The Attorney General filed suit in West Virginia state court to enjoin certain pharmacy companies from overcharging for generic prescription drugs under the State's Pharmacy Act, in violation of the State's Consumer Protection Act. After an order of remand by U.S. District Judge Copenhaver, the defendants appealed under CAFA's unique appeal provision (ordinarily appeals of remand order are not permitted, but they are allowed under CAFA). The defendants argued that West Virginia's Consumer Act was "similar" to a "class action" under federal rule 23. The State countered that its claims were not filed as a class action, and the Consumer Act did not have any of the hallmarks of a class action. The Fourth Circuit agreed with the State, affirming remand. The Fourth Circuit further found that the legislative history of CAFA was "hardly probative" of the issue, and that principles of federalism and comity weighed on the side of remand as well.

The State of West Virginia was represented by Sean McGinley and Joshua Barrett of DiTrapano Barrett & DiPiero, PLLC, John Barrett and Brian Glasser of Bailey & Glasser, LLP, and Francis A. Hughes, West Virginia's Chief Deputy Attorney General.

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Reference Info:Decision | Federal, 4th Circuit, West Virginia | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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