New opinions: Bashman wins, plus an arbitration case

Howard Bashman’s appellate blog How Appealing is essential reading for federal appellate junkies everywhere. And he’s a highly respected appellate advocate in his own right. So when he argues a CA3 case, and he’s opposed by another top-shelf appellate specialist, it deserves a little extra attention. Even if the legal issues in the appeal are a trifle dry.

Bashman represents a plaintiff born with a birth defect and her mother. The plaintiffs alleging that GlaxoSmithKline drug Paxil caused the defect and sued them in PA state court. GSK removed to the case to federal court, and the district court remanded to state court because it found that GSK was a citizen of PA. Then CA3 then held in another case that GSK is a citizen of DE, so GSK removed to federal court a second time, and this time the district court denied removal but certified the issue for interlocutory appeal. The issue in the case was whether the second removal was timely under 28 USC 1446. Ruling for Bashman’s clients, CA3 today reversed.

The case is A.S. v. Smithkline Beecham. Opinion by Shwartz, joined by Smith and Roth. Arguing counsel were Howard Bashman for the plaintiffs and Lisa Blatt of Arnold & Porter for GSK. The argument was less than a month ago, audio is here.

In today’s other published case, CA3 reversed a district court opinion that had enforced an arbitration clause against a non-signatory to the agreement based on equitable estoppel.

The case is Flintkote Co. v. Aviva. Opinion by Vanaskie, joined by Smith and Shwartz. Arguing counsel were Fred Alvarez for the appellant and Louis Chiafullo for the appellee.