F. Paul Bland
Appellate Advocacy · Forced Arbitration · Class-Action Procedure
It is time for me to put aside this executive role and return to appellate litigation.
Before the Merits
F. Paul Bland’s appellate cases address removal, online contract formation, attempts to moot putative class actions, and federal preemption of state consumer law.
Home Depot’s Failed Removal
On May 28, 2019, the Supreme Court held that Home Depot could not remove George Jackson’s class claims from North Carolina court. The company had been brought into the litigation through Jackson’s counterclaim, not through the complaint that began the action. Justice Clarence Thomas wrote the five-justice majority. F. Paul Bland argued for Jackson, whose position preserved the state forum.
The route to that holding began with a debt case. Citibank sued Jackson over charges on a Home Depot credit card. Jackson responded with class claims against Home Depot and Carolina Water Systems, alleging that a water-treatment promotion used unlawful referral sales and deceptive practices. Citibank later dismissed its claim, but Home Depot’s attempt to transfer the remaining dispute to federal court produced a separate fight over who counted as a removing defendant.
The ruling left the alleged sales violations unresolved, but it kept Jackson’s claims in North Carolina court. Removal, arbitration, mootness, certification, and preemption often determine whether a consumer case reaches evidence and judgment.
The Defendant in the Complaint
Two removal statutes supplied the language. The general statute permits removal by “the defendant or the defendants.” The Class Action Fairness Act relaxes several limits and uses the phrase “any defendant.” Home Depot argued that those words reached a company forced to defend a class counterclaim. Jackson answered that both provisions operated within the original civil action, where Citibank’s complaint fixed the plaintiff and the defendant.
At oral argument, Bland kept returning to the action created by the original complaint. He argued for Jackson; Karla Gilbride, Leah Nicholls, Jennifer Bennett, Brian Warwick, Janet Varnell, David Lietz, and Daniel Bryson were also listed on the brief.
The majority accepted the action-based reading. A counterclaim could not supply original jurisdiction, and the defendant to the action was the party sued in the complaint. The words “any defendant” in the class-action statute removed specified restrictions; they did not enlarge the class of parties allowed to remove. Four justices dissented, arguing for a broader reading and emphasizing the position of a party involuntarily drawn into a class case.
The Missing Contract Behind the Orange Button
Lee v. Intelius concerned whether an online transaction formed an arbitration agreement with Adaptive Marketing. Donovan Lee bought an online background report and reached a new page bearing only the Intelius name. A large orange button promised to show the report. Small print purported to enroll him in a seven-day trial for a separate Family Safety Report, followed by a monthly charge. Adaptive later sought to compel arbitration based on terms associated with that page.
The Ninth Circuit examined the transaction as it appeared to the consumer. Lee had already entered his payment information and had not received the report he bought. The button appeared to complete that purchase. Critical language was small and light-colored, and the page did not identify Adaptive as the proposed contracting party. The controlling question was whether this page formed this contract with this company, even though electronic agreements can exist.
The court held that Lee had not contracted with Adaptive to purchase the added report and had not agreed with Adaptive to arbitrate. Bland argued for the plaintiffs alongside lawyers from Cohen Milstein and Keller Rohrback.
Contract Formation on the Webpage
Contract formation depended on the webpage and sequence presented to Lee. He did not reenter a credit-card number on the second page. The button said it would show a report he had already purchased. The terms that supposedly created a new relationship appeared in small, light-colored print. The page’s design formed part of the evidence of what a reasonable user was asked to understand.
The court was careful about the limit of its ruling. Because Washington law was unsettled on when a click objectively manifests assent, the panel did not rest solely on that point. It instead applied the requirement that a written contract identify its parties. Nothing on the page identified Adaptive or an Adaptive-related entity. Even an exceptionally careful consumer, the court concluded, would have understood the linked terms as Intelius’s.
Bland’s argument identified the governing formation rule, preserved the screen and purchase sequence, separated Intelius from Adaptive, and showed where assent failed. The appeal turned on counterparty identity and the legal effect of one click.
Twenty Thousand Dollars in Escrow
Chen v. Allstate concerned whether an offer of individual relief could moot a putative class action. Florencio Pacleb alleged that Allstate placed unsolicited automated calls to his mobile phone in violation of the Telephone Consumer Protection Act. During the appeal, Allstate placed $20,000 in escrow, consented to individual injunctive relief, and asked the court to direct payment, enter judgment for Pacleb, and dismiss the action before class certification.
The Ninth Circuit declined. Funds in escrow were an offer or tender, not relief Pacleb had actually received. His individual claim therefore remained live. Bland argued for the plaintiffs with Claire Prestel and lawyers from Kazerouni Law Group and other firms listed in the opinion. The panel affirmed the order denying Allstate’s motion to dismiss for lack of subject-matter jurisdiction.
The panel refused to direct entry of judgment over Pacleb’s objection before he had a fair opportunity to seek class certification. Because funds in escrow were not relief he had received, his individual claim remained live and the certification question could proceed.
The Named Claim and the Proposed Class
Chen prevented a defendant from ending a proposed class action by tendering relief only to the named plaintiff before certification. Otherwise, a defendant could approach each representative before the certification motion and avoid a ruling on collective treatment. The Ninth Circuit relied on precedent disapproving that method of “picking off” representatives, especially where small individual claims might not support separate lawsuits.
Chen kept Pacleb’s individual claim alive and allowed him a fair opportunity to seek class certification. Liability and certification remained for later proceedings.
Home Depot tried to change the forum by expanding who could remove a case. Allstate tried to end a putative class by tendering relief only to the representative. Bland’s appellate arguments kept each dispute before the court authorized to decide the next question.
A National Bank Still Faced State Collection Law
Aguayo v. U.S. Bank concerned whether federal banking law preempted California repossession-notice requirements. After Jose Aguayo defaulted on a vehicle loan, U.S. Bank repossessed and sold the vehicle, then sought the remaining deficiency. Aguayo alleged that the bank’s post-repossession notices omitted information required by California’s Rees-Levering Act and that the omission barred collection of the deficiency.
The district court dismissed the case, holding that the National Bank Act and regulations of the Office of the Comptroller of the Currency preempted the state notice provisions. Bland argued the appeal for Aguayo with a Public Justice and California team. The Ninth Circuit reversed, concluding that the provisions governed debt collection and were not displaced by the federal banking regime.
The analysis depended on reading the regulation as a whole. Its preemption language addressed certain credit-related disclosures, while its savings clause preserved state law concerning contracts and the right to collect debts. The bank had used state-law repossession remedies, and the savings clause preserved state consumer-protection rules governing that collection process. The ruling kept the state rule available without deciding Aguayo’s ultimate recovery.
The Organization Behind the Appeals
Bland joined Public Justice as a staff attorney in 1997 and became executive director in 2014. He announced in 2023 that he would leave the executive position the following May, after ten years leading the organization. Public Justice later named Sharon McGowan as his successor and fixed his departure for May 31, 2024. After leaving the executive position, Bland returned to full-time appellate litigation.
The current Berger Montague biography describes seventeen years in senior legal work at Public Justice before his decade as executive director. His work combined case selection, briefing, oral argument, staffing, communications, and organizational finance across matters handled with co-counsel, staff lawyers, local counsel, and amici.
When Bland announced the transition, he said he wanted to leave the executive role and return to appellate litigation. Berger Montague announced in 2024 that he would join as a shareholder and co-chair its Appeals and Complex Briefing Department, giving him more time to work directly on records and briefs.
Current Appellate Practice
Bland now serves as a Berger Montague shareholder and co-chairs the department with Josh Davis. His practice includes forced arbitration, federal preemption, consumer appeals, and worker claims. He graduated from Harvard Law School and Georgetown University.
In April 2026, Bland appeared as counsel of record for bipartisan current and former United States senators in a D.C. Circuit amicus brief in the Perkins Coie litigation. The filing records his current Berger Montague affiliation and Washington office.
Across Home Depot, Lee, Chen, and Aguayo, Bland argued questions of removal, contract formation, mootness, and preemption. The rulings determined whether the claims remained in court and what issues could proceed, while leaving the underlying liability questions for later stages.