One might think that a tobacco company would steer as clear as possible from the federal government. The U.S. Justice Department brought a Racketeer Influenced and Corrupt Organizations Act action against the industry seeking $280 billion. Although the industry is in the driver’s seat in that action (see U.S. v. Philip Morris USA Inc., 396 F.3d 1190 (D.C. Cir.), cert. denied, 126 S. Ct. 478 (2005) (rejecting government’s claim that disgorgement is a proper RICO remedy)), it is somewhat ironic that it would seek to remove a state court consumer fraud class action to federal court on the theory that it is a federal agent under 28 U.S.C. 1442(a)(1), the so-called federal officer removal statute. Yet that is precisely what Philip Morris did.
Why would a private company want to label itself a federal agent? Well, as the readers of this column well know, corporate defendants generally want to avoid state courts, specifically consumer state court class actions. Before the Class Action Fairness Act was enacted in 2005, plaintiffs had the upper hand in keeping such cases in state court, by naming local defendants to destroy complete diversity under 28 U.S.C. 1332(a).
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