A divided Fourth Circuit Court of Appeals panel has refused to return to federal court asbestos-related injury lawsuits filed against a cosmetics company, despite evidence that the plaintiffs misrepresented their potential exposures to support their motion to remand. Barlow v. Colgate Palmolive Co., Nos. 13-1839, -1840 (4th Cir., decided April 30, 2014). The plaintiffs claimed that exposure to asbestos in face-powder products caused their mesothelioma. In their motion to remand after the case was removed to federal court, they argued that other exposures involving in-state defendants were a possibility.

After remand to state court, the plaintiffs apparently reversed that position, stating that their asbestos exposures had one cause and one cause only—face powder. Thereafter, the defendant sought an order striking the remand order as a sanction for counsel’s alleged misrepresentation regarding the existence of subject-matter jurisdiction. The district court denied the request, finding that it lacked jurisdiction to consider the matter. The Fourth Circuit majority agreed, discerning “no basis to infer that Congress intended to etch a litigation-integrity exception into its prohibition on the review of remand orders” in 28 U.S.C. § 1447(d).

The dissenting judge would have found ample precedent for a court to exercise jurisdiction after remand to consider whether plaintiffs’ counsel had violated Federal Rule of Civil Procedure 11 and whether sanctions should be imposed for their “(nowconfirmed) intentional misrepresentations that were perpetrated upon the district judges while the cases were removed.” According to this judge, Rule 11 sanctions are “collateral to the merits” of an action, and the majority, by reaching the opposite conclusion, “maroons itself on an island all alone, thereby creating a cosmic circuit split and contravening Supreme Court precedent and this Court’s precedent.”