The S&P Litigation and Access to Federal Court: A Case Study in the Limits of Our Removal Model
On June 6, 2013, the United States Judicial Panel on Multidistrict Litigation ordered the consolidation of fifteen actions filed by state attorneys general against the Standard & Poor’s rating agency for its role in the collapse of the market for structured finance securities. The cases are important: The underlying events shook markets worldwide and contributed to a global recession, the legal actions themselves take aim at foundational aspects of the way rating agencies go about their business, and the suits threaten the imposition of significant fines and penalties against S&P. So it is unsurprising that the order of the MDL panel—typically the sort of thing that would fly well under the radar—garnered an extraordinary measure of media attention. Many observers marked the consolidation order as a significant victory for S&P. The Wall Street Journal, for example, characterized the decision as an “incremental but important legal victory” for the defendants and emphasized that consolidation will permit S&P “to streamline costs and avoid a piecemeal legal battle in state courts across the country.” Another observer deemed the decision a “big win” for S&P and highlighted the fact that it enabled S&P to move the suits away from the AGs’ home courts and onto (arguably) more neutral terrain. But the reality is that S&P has won no more than a lottery ticket. It will enjoy the efficiencies associated with consolidation and keep the state AGs off of their home turf only if the judge to whom the cases have been assigned seriously misapplies federal jurisdictional law. This Essay has two principal goals. The first is to show that our jurisdictional law does not permit removal in these cases. S&P has argued that these lawsuits are eligible for federal court jurisdiction on a federal question theory—i.e., on the ground that they “arise under” federal law within the meaning of 28 U.S.C. § 1331. I will show in Part I that these arguments are strained and ultimately unavailing. My second goal (pursued in Part II) is to show that the relevant jurisdictional law is seriously unsatisfying. The S&P litigation raises challenging questions of jurisdictional policy, but the law as it stands simply fails to engage them. It relies instead on a pair of mechanical rules for sorting cases between the state and federal courts that have only an attenuated relationship to considerations of sound jurisdictional policy.
Seinfeld, Gil. "The S&P Litigation and Access to Federal Court: A Case Study in the Limits of Our Removal Model." Colum. L. Rev. Sidebar 113 (2013): 123-35.