Lott v. Pfizer, __ F.3d __, No. 06-3372, 2007 WL 1804261 (7th Cir. June 25, 2007).

We all remember Rocky Balboa, the Italian Stallion, the Philly blue-collar boy clawing his way to the top. Can’t you picture the attorneys for the Lott plaintiffs and Pfizer similarly running up the steps of the Philadelphia Museum of Art? Their collars ripped open, their cuff-links glistening with sweat, the soles of their wing tips burning. Can’t you hear the music, and the chorus of voices singing in unison in the background … "getting stronger … getting stronger." Can’t you see Burgess Meredith belittling those lawyers as they struggle to make it to the apex. I can … but I’m not quite sure if the kids from the neighborhood are running after the "heroes" this time. In fact, we here at the CAFA law blog aren’t real sure at this point who is Rocky, who is Apollo Creed, or just where Clubber Lang is just yet because Lott and Pfizer appear unwilling to stop this fight! Or maybe we are just watching Rocky 2 for the second time, who knows? (And by the way, just where is Cousin Paulie in this whole mess?)

Anyway, in Round 4 the 7th Circuit weighed in on the fight, again, reversed the decision of the district court, and held that the plaintiffs should not have been awarded attorney’s fees because Pfizer’s removal was indeed "objectively reasonable." (Editors’ Note:  See the CAFA Law Blog analysis of the district court decision in Lott v. Pfizer posted on September 7, 2006. You may also want to see the CAFA Law Blog analysis of the original 7^th Circuit decision in Lott v. Pfizer posted on September 20, 2005).  

Did Lott head-butt Pfizer, was their a punch below the belt? Not this time. Rather, the court noted that the Supreme Court’s decision in Martin v. Franklin Capital Corp., 126 S.Ct. 704 (decided after the district court had awarded attorney’s fees) applied retroactively to this fight because the case was pending at the time. Martin stands for the proposition that fees should be awarded only when the "removing defendant lacked objectively reasonable grounds to believe the removal was legally proper."

The 7th Circuit borrowed its "objectively reasonable" standard utilized in its qualified immunity cases, and held that Pfizer’s belief that removal was proper was "objectively reasonable." As our avid readers remember, in our September 20, 2005 analysis, the plaintiffs brought this matter in state court the day before CAFA became effective; thus its generous removal provisions did not apply. Pfizer originally argued that removal was proper under CAFA because the action did not "commence" until Pfizer tried to remove it to federal court (a date that was after the effective date of CAFA). While the argument was rejected, the issue in Round 4 was whether this construction of "commenced" was objectively reasonable.

The Court noted that at the time of Pfizer’s attempted removal, there were conflicting district court opinions regarding what procedural event (filing a complaint or removing a case) constituted "commencement." Thus, Pfizer’s action was found to be "objectively reasonable."

The plaintiffs also argued that (1) the legislative history (statements from two congressmen and three senators) showed that CAFA was not to applied retroactively, and (2) that Pfizer’s knowledge garnered through its efforts in lobbying Congress regarding CAFA made their actions unreasonable, but the Court rejected these claims.

The day the decision was released, numerous reports flooded the airwaves of people hearing purported tired screams of joy. As one person stated "all I heard was someone screaming ‘ADRIAN! ADRIAN!’ ."