June 20, 2013 Articles

Defendants Missing Opportunities to Remove Class Actions to Federal Court

The best reading of the removal provision allows defendants leeway to remove almost any class action.

By Gregory G. Katsas and Jeffrey A. Mandell

This article argues that defendants have not made full use of the Class Action Fairness Act of 2005’s provision authorizing removal of class actions from state to federal court. Though class-action defendants litigating in inhospitable state courts have inexplicably ignored CAFA’s plain text, the statute allows defendants to remove most class actions to federal court if they so choose.

We presented this textual analysis in an amicus brief filed in Standard Fire Insurance Co. v. Knowles, No. 11-1450 (U.S. Mar. 19, 2013). The Supreme Court did not engage our argument, but it did expressly state that the numerosity and amount-in-controversy requirements determine whether “the federal district courts [have] ‘original jurisdiction’ to hear a ‘class action.’” Slip Op. at 3.

The parties in Knowles did not question—and the Court did not assess—the contours of CAFA’s removal provision. Nothing in the Court’s short, unanimous decision forecloses reading that provision as substantially broader than CAFA’s grant of original jurisdiction, giving class-action defendants significant flexibility to avoid litigating in state court when they prefer a federal forum.

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