In re Flonase Antitrust Litigation

Case Updates

The Third Circuit affirmed, holding that a motion for approval of a class action settlement qualifies as a suit against a State for Eleventh Amendment purposes, and that the State of Louisiana did not waive its sovereign immunity by receiving a CAFA notice and failing to opt out of the settlement.

The U.S. Chamber filed an amicus brief in the Third Circuit in a case concerning the enforceability of a class settlement against the State of Louisiana. The district court refused to enforce the settlement, holding that the State did not “clearly waive” its sovereign immunity, even though it received the notice required by the Class Action Fairness Act and became a member of the plaintiff class by failing to opt out.

The Chamber’s amicus brief argues that the district court’s decision should be reversed because the history of sovereign immunity demonstrates that the doctrine does not apply when the states are plaintiffs. The brief also argues that allowing states to abuse sovereign immunity in this manner will seriously undermine class-action settlements.

William S. Consovoy, Thomas R. McCarthy, and Cameron T. Norris of Consovoy McCarthy Park PLLC served as counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.