Will Barnette, associate general counsel at The Home Depot, likened the experience of arguing before the nation's highest court to preparing for and taking the bar exam. And the stakes were just as high.

Last month, Barnette argued before the U.S. Supreme Court on behalf of Atlanta-based Home Depot in a case involving the federal Class Action Fairness Act with strong jurisdictional implications for corporate defendants haled into cases because a plaintiff who originally had been a defendant added counterclaims against it.

“Like the bar [exam], you would like to have had more time to prepare, but at the same time it was nice to have a deadline and a set period of time by which it was all over,” Barnette said.

But unlike the bar exam, which Barnette said he left with a strong sense that he had succeeded, “I have no idea of the outcome here.”

He added: “I think the argument went well, but at least from the questions, there was a difference of opinion on the issue, so I don't know how it will turn out.”

Barnette's self-described “phenomenal experience” that is the “highlight of my career to date” is one that few in-house attorneys have the opportunity to experience. That is, corporate law departments generally hire law firms with Supreme Court or other experienced appellate practices to handle their biggest cases before the nation's highest courts. In fact, Home Depot had been doing just that in this and other cases.

The home improvement retail giant has been litigating for several years, with little success to date, the issue of whether a third-party counterclaim defendant can remove to federal court a class action under the Class Action Fairness Act.

The U.S. Court of Appeals for the Seventh Circuit found in 2017 that the company's position as a third-party defendant precluded it from invoking federal jurisdiction, and the Fourth Circuit ruled similarly in January 2018 in a suit raising the same claims against Home Depot.

In each case, the original defendant, a Home Depot consumer facing a debt collection action for failure to make payments on a water system, filed counterclaims against Home Depot, alleging unfair marketing practices.

The Supreme Court denied Home Depot's request that it hear the Seventh Circuit case, but last September, it agreed to hear the Fourth Circuit one. The briefing in the cases was handled by outside counsel, with significant input from Barnette and other Home Depot in-house lawyers.

When the news came down, Teresa Wynn Roseborough, Home Depot's top lawyer since November 2011, asked Barnette if he wanted to argue the case.

“She told me that we know these issues as well as anyone else,” Barnette said. “We've had this issue kicking around for a couple of years, and we know the [Class Action Fairness Act] so well that she thought we were as well-positioned as anyone to argue it.”

Roseborough, herself an experienced appellate litigator who earlier in her career served as senior chief counsel for litigation at MetLife in New York, had extended a similar opportunity to an in-house lawyer at MetLife during her time there, so the offer, though unusual, was not entirely unprecedented for Roseborough, Barnette said.

Although an experienced consumer class action litigator who has argued dozens of cases in various state and federal trial and appellate courts, the last time Barnette had done so was before he went in-house at Home Depot in 2004, he said.

“I've been in a lot of courtrooms since then, but it's a lot different when outside counsel is doing the arguing,” he said laughing. “But when you're in-house, a lot of times you're speaking at meetings or making presentations and still using oral advocacy skills, just in a different context.”

After the briefs on the merits were submitted in mid-November, Barnette began focusing heavily on preparing for the argument. While he still oversaw some matters, much of his workload was shifted to allow maximum preparation time.

He was mooted three times in Atlanta, with pro bono help from attorneys at Alston & Bird; Bondurant, Mixson & Elmore; Caplan Cobb; Jones Day and King & Spalding, as well as a professor from Emory University School of Law and in-house attorneys at Home Depot.

In D.C., he was further mooted by lawyers at Bethesda, Maryland-based appellate boutique firm Goldstein & Russell and various amici in the case, including the U.S. Chamber of Commerce. Sarah Harrington, the former assistant to the solicitor general at the U.S. Department of Justice and now a partner at Goldstein & Russell, handled the Supreme Court briefing in the case.

“I don't think I've ever been that prepared for anything else,” Barnette, 49, said, adding that his wife, their three sons and his mother joined the 25-or-so-person Home Depot contingency in the gallery on Jan. 15. “I was nervous but less nervous than I expected I would be. I felt focused from the beginning and made the arguments I wanted to make.”

The gist of that argument was that Home Depot's only role in this case is that of defendant, that it didn't sue anyone in this litigation, and thus should be authorized to remove under the Class Action Fairness Act, an argument that Chief Justice John Roberts, as well as Justices Brett Kavanaugh and Samuel Alito, seemed to buy, according to a transcript of the arguments.

The traditionally liberal justices, however, remained skeptical, led by Justice Elena Kagan's argument that for a case to be removable, the federal district court must have had original jurisdiction, which was not the case in the current litigation, where the original complaint pitted creditor Citibank against the Home Depot consumer defendant.

“The gist of her questions revolved around the issue that you're not the original defendant,” Barnette said. “I don't think that's the right reading of the law, and I tried to argue that at the hearing.”

The moot court participants had prepared Barnette for questions from Justice Ruth Bader Ginsburg, who has authored several opinions in recent years on issues of procedural gamesmanship used by both sides in class litigation, but who was absent due to health reasons.

Nonetheless, Barnette said, “We didn't get any question that we hadn't practiced. They varied in how they were worded, but the issues were the same.”

Kacy Goebel, senior corporate counsel in Home Depot's commercial litigation group, said the only word to describe the experience is “surreal.” Having been sworn into the Supreme Court bar just that morning, Goebel joined Barnette at the counsel table for the “amazingly fast-paced” argument.

“You're looking around the room, and you realize, 'I've read these people's opinions. I've seen them on the news.' And now they're right here within reaching distance asking us questions about this case I've worked on for about [two and a half] years,” she said. “It is a treat if nothing else.”