From the class action defense perspective, companies and counsel
alike are almost always looking for an angle to move a state-filed
putative class action to the more rigorous environment of the
federal courts. Congress appreciated the
benefits of a federal court environment and the potential biases
facing out of state defendants in state courts when Congress
enacted the Class Action Fairness Act in 2005
("CAFA"). CAFA provided, among other
things, relaxed standards for removal of class actions to the
federal courts. However, the Supreme Court's
decision in Home Depot U.S.A., Inc. v. Jackson has
now limited access to the federal courthouse by a third-party
counterclaim defendant (a party brought into a lawsuit through a
counterclaim filed by the original defendant). In yet another 5-4
decision this term, Justice Thomas, writing for the majority with
an unusual coalition of Justices Breyer, Ginsburg, Kagan, and
Sotomayor, applied a strict textual view of the general
