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DRI Seeks High Court Review in Home Depot U.S.A. v. Jackson

  • Published May 22, 2018
    Modified July 09, 2020

Scope of Class Action Fairness Act (CAFA) Removal Provision at Issue

CHICAGO – (May 22 , 2018) — DRI–The Voice of the Defense Bar has filed an amicus brief in the U.S. Supreme Court supporting the certiorari petition in Home Depot U.S.A., Inc. v. Jackson, No. 17-1471.  The brief was filed through DRI’s Center for Law and Public Policy, whose core objectives include achieving fairness in class-action litigation.

To curb state-court class-action abuses, Congress, in 2005, enacted the Class Action Fairness Act (CAFA).  One of CAFA’s key provisions, 28 U.S.C. § 1453(b), authorizes “any defendant” to remove a qualifying class-action from state to federal court. To circumvent this expanded removal provision – and thereby keep class-actions in plaintiff-friendly state courts – class-action plaintiff lawyers have been enlisting defendants in ordinary state-court debt-collection suits to file broad, only tangentially related, class-action counterclaims, or third-party class-action complaints, against national or multi-state corporate defendants.  The question presented by the Home Depot appeal is whether such an additional class-action counterclaim defendant, or a third-party class-action defendant, is “any defendant” for purposes of removal under CAFA.  Supreme Court review is needed because all four circuits that have addressed this issue have held that § 1453(b) does not extend to such defendants.  The basis for their holdings is a 1941 Supreme Court case which held that a counterclaim defendant that was the original plaintiff in a debt-collection suit cannot remove a case that it filed in state court.

DRI’s amicus brief argues that these circuit court rulings conflict with CAFA’s text and purpose, which are intended to ensure that national class actions are adjudicated (or settled) in federal, not state, courts.  The amicus brief refers to CAFA’s accompanying Senate Report, which recounts in detail many types of state-court class action abuses, such as certifying even frivolous class actions in order to force settlements which are lucrative for plaintiffs’ lawyers and virtually meaningless for individual class members.             

Amicus brief author Lawrence S. Ebner, founder of Capital Appellate Advocacy PLLC in Washington, D.C. and a fellow of the American Academy of Appellate Lawyers, serves as Chair of the DRI Amicus Committee.  He is available for interview or expert comment through DRI’s Office of Public Policy. The complete text of the DRI brief can be found here.

About DRI – The Voice of the Defense Bar

For more than fifty-five years, DRI has been the voice of the defense bar, advocating for 22,000 defense attorneys, commercial trial attorneys, and corporate counsel and defending the integrity of the civil judiciary. A thought leader, DRI provides world-class legal education, deep expertise for policy-makers, legal resources, and networking opportunities to facilitate career and law firm growth. For more information, log on to