Fourth Circuit reversal in the cell phone emissions case

In Pinney v. Nokia, Inc., the Fourth Circuit in an opinion by Judge Michael, joined by Judge Luttig, with Senior Judge Kiser of the W.D. Va. dissenting, reversed the decision by Judge Blake of the D. Md. in the cell phone emissions multidistrict litigation to deny remand to state court and to dismiss the state law class actions based on preemption by the Federal Communications Act. The majority concluded that there was no federal jurisdiction to support removal in four of the five cases, and in the fifth case, there was no preemption.

Michael Allweiss from New Orleans argued for the plaintiffs, Kenneth Starr argued for the defendants.

I guess this case and the recent mold case from the E.D. Va. show the perils of removing products cases on less than ironclad premises - the defendants get to federal court where they can win on legal and evidentiary issues, only to lose their victory on appeal for lack of subject matter jurisdiction.

Senior Judge Kiser, himself a district court judge, was convinced by the good work of the district court judge - and explained that he thought the plaintiffs could not prove their claims without litigating the federal emissions standards. The whole case, Judge Kiser determined, was more of an attack on the FCC standards than anything else. He concluded: "we should use common sense and recognize that plaintiffs’ claims directly implicate a federal regulatory scheme and threaten to undermine that same scheme."

The AP has this report on the decision.