Texas asks Fifth Circuit to force J&J to pay for Tylenol court shuffle

Texas is appealing to the Fifth Circuit to recover legal fees from Johnson & Johnson and Kenvue after the companies removed a Tylenol-autism consumer protection case to federal court just 13 hours before a state hearing, a move that automatically froze the state proceeding. The federal judge who handled the case, J. Campbell Barker, remanded it back to state court and called the removal 'zealous advocacy,' but declined to award fees, finding the companies' jurisdictional argument at least debatable.

At oral argument, Texas's attorney argued courts wrongly reward defendants for citing 'something federal lurking somewhere' even when they lose, noting 16 similar removals in the circuit over the past year were all sent back, yet fees are almost never awarded. Company counsel maintained the removal was objectively reasonable given other courts had found federal jurisdiction in comparable FDA-labeling disputes.

Judges pressed both sides on precedent and tone, including admonishing Texas's brief for calling the opposing argument 'delusional and on Kool-Aid.' No other state attorney general has apparently succeeded in winning fees after a similar remand, a fact both lawyers confirmed under questioning.

The full dispatch is available from the source below.