Class Action

Four new CAFA opinions from the federal appellate courts

By Kimberly A. Kralowec

The Courts of Appeals for the Second, Fourth, Seventh and Ninth Circuits have all issued CAFA-related opinions in recent weeks:

• In Luther v. Countrywide Home Loans Servicing, LP, ___ F.3d ___ (9th Cir. Jul. 16, 2008), the Ninth Circuit held that CAFA's "general grant of the right of removal of high-dollar class actions does not trump" section 22(a) of the Securities Act of 1933 (15 U.S.C. section 77v(a)), which contains a "specific bar to removal of cases [filed in state court and] arising under the ... Act." Slip op. at 6-7.

• In Strawn v. AT&T Mobility, ___ F.3d ___ (4th Cir. Jun. 30, 2008), the Fourth Circuit held, for the first time, that CAFA did not alter the removing party's ordinary burden of proving that a basis for federal jurisdiction exists. Slip op. at 8 (citing Abrego Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006)). The opinion goes on to address CAFA's $5 million jurisdictional minimum and how it can be established. Id. at 8-11. [Via Competition Law360]

• In Spivey v. Vertrue, Inc., ___ F.3d ___, 2008 WL 2357099 (7th Cir. Jun. 11, 2008), the Seventh Circuit held, contrary to a number of other Circuits, that "less" means "less" and not "more" when it comes to the time limit to appeal from a remand order. Coming from that Circuit, such a ruling is not really all that surprising. Accordingly, a petition for permission to appeal filed "not less than 7 days" after the remand order was timely. "To the possibility that this gives litigants forever to appeal, and thus interferes with the objective of ascertaining the correct forum as quickly as possible, we say: No way." Slip op. at 6. In the absence of a specific deadline in CAFA, Federal Rules of Civil Procedure 4(a) and (5)(a)(2) impose a thirty-day default deadline, which "allow[s] a party 23 days more than the authors [of CAFA] anticipated." Id.

  Drug & Device Law has a lengthy post on Spivey, as does Consumer Law & Policy, and I have covered earlier federal opinions on the "less is more" issue in these several posts.

• Finally, in Estate of Pew v. Cardarelli, 527 F.3d 25 (2d Cir. May 13, 2008), the Second Circuit "join[ed] our sister circuits in interpreting the statute to mean 'not more than 7 days.'" Slip op. at 7 (emphasis in original). The opinion then went on to address the "securities exceptions" to CAFA jurisdiction, ultimately adopting an extremely narrow interpretation of those exceptions, and holding (over the dissent of one judge) that they did not apply to the case before it. Id. at 13-23.

  Full post as published by The UCL Practitioner on July 22, 2008 (boomark / email).

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