Weitz & Luxenberg’s Ellen Relkin recently testified before the U.S. House Subcommittee on Courts, Intellectual Property and the Internet to discuss the rise of ‘snap removals’ in the legal system and to implore Congress to pass legislation that closes the ‘snap removal’ loophole.
As a result of the hearings, Representatives Jerry Nadler (D-NY) and Hank Johnson (D-GA) have introduced a bill to curb what Nadler called “the important and growing problem” of defense attorneys using the tactic to have cases removed from state courts.
A ‘snap removal’ is a procedural tool increasingly used by counsel for corporate defendants – often involving product liability and mass tort actions against large pharmaceutical companies – that exploits a loophole in federal law to move lawsuits filed against them from state to federal court before the defendant has even been served. ‘Snap removals’ ultimately allow corporate defendants to delay civil litigation and remove a case from the state courts where the corporations are headquartered or incorporated. This limits venue choices, delays litigation, and usurps the role of state courts in deciding their own state’s law in governing the conduct of their corporate citizens.
The bill proposed by Nadler and Johnson incorporates a ‘snap back’ solution that requires federal courts to remand cases back to state courts if plaintiffs properly serve a defendant within 30 days or within the time provided by state service process rules, whichever is less.
“I applaud Congressmen Nadler and Johnson for recognizing the seriousness of this issue and proposing a solution that will close the snap removal loophole, alleviate the burden on our justice system, and most importantly, protect the rights of plaintiffs who are being treated unfairly by these underhanded tactics employed by corporate defense attorneys,” said Ms. Relkin following the bill’s introduction.
In November of 2019, Ms. Relkin testified on Capitol Hill about the need to close the ‘snap removal’ loophole.
“Snap removals are a public policy issue because they deprive state courts of jurisdiction,” testified Ms. Relkin. “I want to implore you, as a practicing attorney representing injured people, who has repeated experience with the very technique I am decrying herein — my experience is real, practical, and actual, and not theoretical — good people are being hurt.”
Ms. Relkin appeared alongside three other witnesses at the first hearing on the topic to testify about how ‘snap removals’ defy the Forum Defendant Rule of 1948. The rule mandates that the state in which corporate defendants are headquartered are the ones who have jurisdiction over their cases. But thanks to the adoption and widespread use of electronic filing, defense counsel can now electronically remove the plaintiff’s complaint to federal court before counsel for the plaintiff has time to physically serve the defendant.
As evidence of the now widespread exploitation of the loophole, Ms. Relkin cited how a subsidiary of Johnson & Johnson began snap removing hernia mesh cases filed against it in New Jersey state court in 2018. The defense counsel became so efficient that by the end of the year, snap removals were being effected less than 10 minutes from when the case was filed in New Jersey state court, making it impossible for plaintiffs to serve the defendants. She explained that the same counsel then adapted that artifice to remove hip implant cases involving the Tritanium cup against Stryker Orthopedics.
Ms. Relkin further testified that to combat the rise of snap removals, plaintiff attorneys began stationing process servers in a defendant’s corporate parking lot so they could be served within minutes of the electronic filing. Corporations responded by having security guards stall process servers in the lobby to allow time for the snap removal, and in some rare cases, individuals have actively fled process servers on sight to ensure a snap removal could be executed.
“The rise of electronic filings that alert defendants immediately combined with individuals literally running away when they see process servers approaching is becoming a huge problem in the legal system,” testified Ms. Relkin.
Ms. Relkin, who co-chairs W&L’s Defective Drugs and Devices practice, went on to argue that snap removals drain the resources of an already stretched federal court system and inserts undue delay in the administration of justice. She also detailed that the practice of snap removals has also affected the pre-suit resolution of cases, because approaching defense counsel with a pre-suit resolution only serves to put them on notice of pending litigation and allows them to prepare to remove – and thereby delay – the case even further.
In the conclusion of her testimony, Ms. Relkin asked Congress to level the playing field for plaintiffs by taking “the necessary steps to introduce and pass legislation that closes the snap removal loophole, and thereby restores the balance not just of federal and state court jurisdiction, but of power between injured people and corporations.”