existence is built on a shaky legal foundation.A Rule-Based Analysis The first issue that must be considered is whether the applicable procedural rules permit class allegations to be asserted in a counterclaim. In some states, the rules at least implicitly allow for counterclaim class actions. See, e.g., Cal. Civ. Proc. Code § 428.20 (providing that counterclaiming defendant “may join any person as a cross-complainant or cross-defendant, whether or not such person is already a party to the action, if, had the cross-complaint been filed as an independent action, the joinder of that party would have been permitted”); Fla. R. Civ. P. 1.220(c) (setting out requirements for bringing claim on behalf of class in “[a]ny pleading, counterclaim, or crossclaim”). While the practical concerns addressed below suggest that such rules may be unwise, the analysis here is limited to the federal rules and their state analogues.Counterclaims May Be Brought Against an “Opposing Party” Fed. R. Civ. P. 13 governs counterclaims. Rule 13(a) defines “compulsory” counterclaims, which arise when the counterclaim “arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim.” If a counterclaim that is compulsory is not asserted, it becomes barred and may not later be asserted. See, e.g., Ross ex rel. Ross v. Bd. of Educ. of Twp. High Sch. Dist. 211, 486 F.3d 279, 284 (7th Cir. 2007) (citing Baker & Gold Seal Liquors, Inc., 417 U.S. 467, 469 n.1 (1974)). Rule 13(b) allows permissive counterclaims, which are essentially defined as “any claim that is not compulsory.” Fed. R. Civ. P. 13(b). Both subsections state that counterclaims may be brought against “an opposing party.” Fed. R. Civ. P. 13(a)(1), (b). This requirement presents the first textual obstacle to a counterclaim class action. As discussed below, under Rule 13(h), a defendant asserting a counterclaim may bring in new “parties” as counterclaim defendants if those parties are being joine

Nationwide argued that under the laws of both Georgia (which likely applies to the insurance coverage issues) and Missouri (the forum state), “mere claimants who do not have a judgment against an insured have no rights to assert against the insurer.”St. Louis Heart responded that because it was joined in the coverage case as a necessary party under FRCP 19(a), it must bring its own action for declaratory judgment as a compulsory counterclaim under FRCP 13(a). It argued that it had standing to seek its own insurance coverage declaration and that if it did not assert its compulsory counterclaim, it would be barred.

Nationwide argued that under the laws of both Georgia (which likely applies to the insurance coverage issues) and Missouri (the forum state), “mere claimants who do not have a judgment against an insured have no rights to assert against the insurer.” St. Louis Heart responded that because it was joined in the coverage case as a necessary party under FRCP 19(a), it must bring its own action for declaratory judgment as a compulsory counterclaim under FRCP 13(a). It argued that it had standing to seek its own insurance coverage declaration and that if it did not assert its compulsory counterclaim, it would be barred.

Bridgestone filed a motion to dismiss, alleging that PIPCO waived its rights to damages with respect to the Skim-2 product in the prior litigation. The district court held that PIPCO’s present infringement claim was a compulsory counterclaim to Bridgestone’s DJ claim of noninfringement in the prior litigation, relying on Fed. R. Civ. P. 13(a) and Federal Circuit precedent holding that when the same patent is at issue in an action for declaration of noninfringement, a counterclaim for patent infringement is compulsory and, if not made, is deemed waived. Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795 (Fed. Cir. 1999).

In addition to firing, demoting, humiliating, threatening, blackmailing and otherwise retaliating against whistleblower employees, contractors and others, corporations also use a variety of legal tools to challenge whistleblowers in litigation.Hagens Berman’s whistleblower team presents here some of the common moves by the dark side:Counterclaims Against False Claims Act WhistleblowersWhen companies sued for fraud are up against a wall, and whistleblower claims have them shaking, defendants will often bring counterclaims against whistleblowers pursuant to Federal Rule of Civil Procedure 13(a) (compulsory counterclaims) or 13(b) (permissive counterclaims).Rule 13(a) is a compulsory rule that requires a defendant to bring a counterclaim for any matter that “arises out of the transaction or occurrence that is the subject matter of the opposing party’s (i.e., the whistleblower's) claim.”

Summit Contractors, Inc. v. Crum & Forster Specialty Ins. Co., No. 8:13-CV-295-T-17TGW, 2015 WL 628761 (M.D. Fla. Feb. 12, 2015).Commercial General Liability Insurance Policies; Declaratory Judgment; Severing Crossclaims Against Coparty – While a plaintiff may lack standing to sever defendant’s crossclaim against a codefendant under Fed. R. Civ. Pro. 13(g), the Court may still sever such claims under Rule 21 when the claims involve different factual and legal issues irrelevant to plaintiff’s claim that will greatly increase plaintiff’s costs. Subcontractor’s insurer brought declaratory judgment action against subcontractor and general contractor to determine whether subcontractor’s commercial general liability policy covered property damage caused by subcontractor.

The district court dismissed count 11 for failure to state a claim, concluding that the Agreement’s specific provisions disclaiming creation of any third-party beneficiaries must prevail over Huawei’s conclusory allegation of third-party-beneficiary status. Lastly, the district court dismissed count 16 under Fed. R. Civ. P. 13(a) as a compulsory counterclaim to the claims in the Texas suit. Huawei appealed the district court’s dismissal of counts 11 and 16.

Good's brief acknowledges that the 11th Circuit has not addressed this issue, but references one Northern District of Georgia decision and one 9th Circuit ruling and four lower court decisions from other circuits. Good relies upon Fed. Rule Civ. Proc. 13(a)(1)(A) as requiring AirWatch to file as a compulsory counterclaim any claim that "arises out of the transaction or occurrence that is the subject matter of the opposing parties claim" - held "at the time of its service." [Emphasis added.]

Id. In addressing the first part of the test for defendant preclusion, the Federal Circuit began its analysis with Fed. R. Civ. P. 13(a)(1). The Federal Circuit noted that it has applied three tests to determine whether the “transaction or occurrence” test of Rule 13(a) is met: “(1) whether the legal and factual issues raised by the claim and counterclaim are largely the same; (2) whether substantially the same evidence supports or refutes both the claim and the counterclaim; and (3) whether there is a logical relationship between the claim and the counterclaim.”

P’s counterclaims all arose from “the same transaction or occurrence,” namely SAP’s development of HANA.The district court granted summary judgment to SAP on Teradata’s antitrust and technical trade secret claims and stayed proceedings on Teradata’s business trade secret claim and to Teradata on SAP’s patent counterclaims. Teradata appealed to the Federal Circuit.SAP moved to transfer the appeal to the Ninth Circuit. The Federal Circuit denied the motion but instructed the parties to address the jurisdictional issue in the merits brief. 28 U.S.C. §1295(a)(1) grants the Federal Circuit exclusive appellate jurisdiction over final decisions in which a party claims or asserts a compulsory counterclaim related to patents. As it relates to this case, the issue was whether SAP’s patent infringement counterclaims were “compulsory,” meaning SAP would be unable to later sue on these patent infringement allegations “if it did not press them in this action.”The Federal Circuit began by looking at Federal Rules of Civil Procedure 13(a), which states that a counterclaim is “compulsory” if it arises from the same transaction or occurrence as a plaintiff’s claim. The Court explained that it uses three tests to determine whether the transaction or occurrence is sufficiently related between the claim and counterclaim:Whether the legal and factual issues are substantially the sameWhether the evidence will be substantially the sameWhether there is “a logical relationship between the claim and the counterclaim.”Taken together, these tests essentially ask if there is substantial overlap between what the plaintiff and the defendant must establish to succeed on the claim and counterclaim, respectively.The Federal Circuit found that the first two tests clearly weighed against SAP’s counterclaim being compulsory. While an understanding of the accused products and alleged trade secrets would be necessary for both the claim and the counterclaim, “same-field overlap” is not enough to make the issues or necessary evidence “substanti