Telesforo Aviles was sued in a putative class action brought in Texas State Court for invasion of privacy.  Mr. Aviles was employed by ADT, and allegedly used his access to spy on ADT customers.

ADT, which was facing other breach of privacy claims in both Texas and Florida, intervened in the lawsuit and removed the case to the United States District Court for the Northern District of Texas.

The suit was originally remanded back to State Court under the “Home State” exception to CAF, but the Fifth Circuit reversed:

“Aviles, who was sued by the plaintiffs, is a ‘primary defendant’ of course. The issue here is whether ADT, a non-citizen of Texas, is also a ‘primary defendant’ under CAFA. If ADT is not a primary defendant, the district court was right to remand to the state court, but if ADT is a primary defendant, the district court was required to retain jurisdiction….

“Whether ADT is vicariously or secondarily liable is a relevant factor, certainly, but it does not necessarily control a court’s determination, or the analysis would often be at odds with the Supreme Court’s admonition against adopting rules in the CAFA context that would exalt form over substance. Madison and Dickson claim to represent a class of plaintiffs seeking millions in recovery for the invasion of their privacy, although, as of yet, they have asserted claims against only the offending employee (who is imprisoned). But the thrust of this suit is to gain access to ADT’s deep pockets, and ADT, having properly intervened, must be considered a primary defendant under CAFA.”

 

Madison v. ADT, No.21-90028, 2021 WL 3732741 (5^th Cir. Aug. 24, 2021).