March 21, 2012 Articles

The Evolving Burden for Removal under CAFA

By Laurie A. Novion and Ina D. Chang

Since its adoption in 2005, the Class Action Fairness Act (CAFA) has been pivotal in expanding federal jurisdiction over class actions where the amount in controversy exceeds $5 million. But even after more than six years since its effective date, there remain various open issues concerning removal of class actions to federal court. In particular, one legal issue not clarified by CAFA’s provisions is the burden of proving the required $5 million jurisdictional amount. CAFA itself is silent on whether the act alters the traditional rule that the burden of proving federal jurisdiction rests on the removing party. Several circuits and various district courts have grappled with who has the burden for removal, what the level of burden is, and what evidence can be used to support it. As a result, the standards have evolved over time and vary by circuit.

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