F. Paul Bland

F. Paul Bland argued for Jackson in the United States Supreme Court on January 15, 2019. The general removal statute permits removal by “the defendant or the defendants,” and the Class Action Fairness Act speaks of “any defendant.” Both provisions, Bland argued, operate inside the original civil action, where the complaint fixes who is plaintiff and who is defendant; a counterclaim cannot create a new removing defendant. On May 28, 2019, in Home Depot U.S.A., Inc. v. Jackson, the Court held, five to four, that neither statute allowed Home Depot, a third-party counterclaim defendant, to remove. Justice Thomas, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, wrote that “the term ‘defendant’ refers only to the party sued by the original plaintiff,” and that the Class Action Fairness Act’s “any” did not expand the word’s meaning. The remand stood.

An Orange Button

In June 2008 Donovan Lee bought a background check from Intelius online and entered his credit card number. He was then taken to a new page. Intelius was the only company named on it; the name of Adaptive Marketing, which ran the offer the page contained, appeared nowhere. The page invited him to a “Community Safety Survey” with ten dollars cash back for trying a Family Safety Report, asked for his e-mail address, and showed a large orange button reading “YES And show my report” beside a smaller grey one reading “No, show my report.” Lee did not have to enter his card number again. Light grey fine print described a seven-day free trial followed by $19.95 a month, and a “Terms and Conditions” hyperlink led to a membership agreement with an arbitration clause that never identified the provider.

When Lee and other consumers sued, Adaptive moved to compel arbitration under the contract it said the page had formed. Bland argued the appeal for the plaintiffs in the Ninth Circuit, and on December 16, 2013, in Lee v. Intelius, Judge William A. Fletcher wrote for the court that Lee had entered no contract with Adaptive: under Washington law the identity of the parties is an essential element of a contract, and the page named no counterparty. The court found the page “designed to deceive him and others like him.” Clicking “YES” bound Lee at most to the offer details on the page, and the arbitration clause sat in terms reachable only through the hyperlink. The denial of Adaptive’s motion was affirmed.

Twenty Thousand Dollars in Escrow

Florencio Pacleb received five automated calls from Allstate on his cellular phone asking for a Frank Arnold, and he and Richard Chen sued under the Telephone Consumer Protection Act. Before either moved for class certification, Allstate offered judgment under Rule 68: $15,000 to Chen, $10,000 to Pacleb, fees and costs, and an agreement to stop the calls. Chen accepted. Pacleb did not, and Allstate moved to dismiss his case as moot. The district court denied the motion, and while Allstate’s appeal was pending the Supreme Court held in Campbell-Ewald that an unaccepted offer does not moot a claim. Allstate then deposited $20,000 in an escrow account for Pacleb, consented to an injunction, and asked the Ninth Circuit to direct entry of judgment in his favor and dismiss the action.

Bland argued for Pacleb. On April 12, 2016, in Chen v. Allstate Insurance Co., Judge Raymond C. Fisher wrote for the court, with Judges Silverman and Tallman, that “an unaccepted settlement offer has no force,” that a claim becomes moot only when the plaintiff “actually receives complete relief,” and that money in an escrow account Allstate still controlled was not relief Pacleb had received. The court also held that “a district court should decline to enter a judgment affording complete relief on a named plaintiff’s individual claims” over his objection before he has had a fair opportunity to move for class certification. The denial of Allstate’s motion was affirmed, and Pacleb’s case went on.

After the Lending Relationship Had Ended

In 2003 Jose Aguayo bought a Ford Expedition from a Glendale dealership on a retail installment contract that was assigned, without his knowledge, to U.S. Bank. He fell behind, and in August 2007 the bank repossessed the vehicle, sent him a notice of its plan to sell it that omitted information California’s Rees-Levering Act requires, sold the car, and pursued him for the deficiency. Aguayo sued in state court for himself and a class under California’s Unfair Competition Law; the bank removed the case and moved to dismiss, arguing that the National Bank Act and the Comptroller of the Currency’s regulations preempted the state notice rules, and the district court agreed.

Bland argued the appeal in Pasadena on February 9, 2011. On August 1, 2011, in Aguayo v. U.S. Bank, the Ninth Circuit reversed. The Comptroller’s own regulation saves state laws governing “rights to collect debts,” and the post-repossession notice, the court wrote, “was sent after the lending relationship had ended”; “Section 2983.2 of the Rees-Levering Act is a state law, directed toward a lender’s debt collection.” The notices were neither disclosures nor credit documents within the express preemption clause, and the case was remanded for Aguayo’s claim to proceed.

Public Justice, 1997

Bland graduated from Georgetown University and Harvard Law School, served as nominations counsel to the Senate Judiciary Committee, and spent about six and a half years at Quinn Ward & Kershaw in Baltimore handling consumer and toxic-tort class actions and defending libel suits. He joined Public Justice as a staff attorney in 1997, handled its appellate and other litigation for seventeen years, and served as its executive director from 2014. On May 8, 2023, he announced that he would leave in May 2024, saying it was time to “put aside this executive role and return to appellate litigation.” On July 15, 2024, he joined Berger Montague in Washington as a shareholder and co-chair, with Josh Davis, of its Appeals and Complex Briefing Department. He has testified before both houses of Congress and before state legislatures and regulatory agencies.

Back in North Carolina

After the remand Home Depot moved in the North Carolina court to compel arbitration under the Citibank card agreement, and on April 6, 2021, the Court of Appeals of North Carolina, in an opinion by Judge Valerie Zachary, affirmed the denial of the motion: Home Depot had not signed the agreement, was not a third-party beneficiary of it under the South Dakota law that governed it, and could not invoke equitable estoppel, because Jackson’s claims under the referral-sales and unfair-trade-practices statutes sought to enforce nothing in the card agreement. In 2025 the Supreme Court of North Carolina held that the referral-sales statute does not require a buyer to prove that the referral promotion induced the purchase. The claims Jackson filed in August 2016 remain before the courts of the state where Citibank first sued him.