Published By

Matthew Vansuch, Icing the Judicial Hellholes: Congress’ Attempt to Put Out “Frivolous” Laswuits Burns a Hole Through the Constitution, 30 Seton Hall Legis. J. 249 (2006).

Unfortunately, Dr. Zhivago’s love for Lara Antipova did not convince Congress to pass a bill grouping LARA, a/k/a Lawsuit Abuse Reduction Act, with our favorite topic, CAFA. However, for an interesting read (if you like 3 1/2 hour films about the life of a Russian doctor/poet who, although married, falls for a political activist's wife and experiences hardships during the Bolshevik Revolution, you’ll enjoy this work) see this article by Mr. Vansuch. While the article does not analyze CAFA, it does dedicate a footnote (lucky 13 to be exact) to why LARA should be more like CAFA if it wants to be passed. 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (1)

 Thomas M. Byrne, Class Actions, 58 Mercer L. Rev. 1171 (Summer 2007).

In his cleverly titled article, Thomas Byrne gives a review of the Eleventh Circuit’s 2006 work in our favorite area, class actions. One may think such a title mundane, but Byrne spices it up by aptly titling his section on CAFA, “The CAFA Trio.” Following Byrne’s lead, the CAFA Law Blog editorial staff proudly presents The CAFA Three Amigos a/k/a what the 11^th Circuit did with CAFA in 2006. This isn’t your ordinary article, grab your favorite beverage and enjoy, because:

“Wherever there is injustice, you will find us. Wherever there is suffering, we'll be there. Wherever liberty is threatened, you will find...The Three Amigos!”

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Thomas M. Byrne & Valerie S. Sanders,Commentary, See No Removal, Hear no Removal: The 11th Circuit’s New Posture on Removal in Lowery v. Alabama Power Co., 25 No. 15 Andrew’s Toxic Torts Litig. Rep. 11 (August 2007).

Are you ready to rumble?! The state versus federal forum fight for class action lawsuits continues. The Eleventh Circuit weighs in and delivers a 1, 2 punch against removals. Affirming remand of a toxic tort mass action, the Court sets new ground rules that make removal more difficult in Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007). Thomas M. Byrne and Valerie S. Sanders provide insightful commentary.  (Editors’ Note: See the CAFA Law Blog analysis of Lowery posted on May 15, 2007).

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Tim Sensing, Who's On First?: The United States Supreme Court Takes A Swing At Interpreting The Ever-Elusive Language Of The § 1367 Supplemental Jurisdiction Statute In Exxon Mobil Corp. v. Allapattah Servs. Inc., 26 Miss. C. L. Rev. 321 (2007)

Just in time to get CAFA Law Blog readers warmed up for the Spring Training and the World Series (it’s only 10 months away), the Mississippi College Law Review recently published a baseball-themed case note analyzing Exxon Mobil Corp. v. Allapattah Services, Inc. (Editors’ Note:  See the CAFA Law Blog analysis of Exxon Mobil Corp. posted September 22, 2005.) 

The note focuses on the United States Supreme Court’s interpretation of supplemental jurisdiction under 28 U.S.C. § 1367, in situations where complete diversity exists but one plaintiff’s claims do not meet the $75,000 amount in controversy requirement. In Exxon Mobil, the Court decided that federal courts can exercise supplemental jurisdiction over such plaintiffs. The Court did not say much about CAFA--giving it only a passing mention near the end of the opinion. 

This case note explores the class action field a bit more in the text at footnote 228. Mr. Sensing suggests the result of the Exxon Mobil Court’s decision in the context of class action litigation gives plaintiffs more options to manipulate their claims to fit into one of the statutes providing federal jurisdiction, leading to ever-increasing case loads in federal courts. It is an interesting point. We are not sure it is interesting enough to get the legislative attention Mr. Sensing calls for, but you never know what could happen in an election year!

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Steven Puiszis’ Developing Trends With the Class Action Fairness Act of 2005, 40 J. Marshall L. Rev. 115 may be your cure.

Got plenty of time? Jonesing for another cafa-themed law review article thick enough to use for a cutting board?   Then look no further than Steven Puiszis: Developing Trends With the Class Action Fairness Act of 2005  for an exceptionally thorough review of CAFA’s past, present, and anticipated future that makes a perfectly exciting Saturday reading alternative for any Notre Dame, Michigan, (or the elusive and rare literate Auburn) football fan with dashed hopes of a winning season.  So sit back, have a read, and you’ll find yourself up to speed on CAFA’s recent twists and turns faster than you can say 0-3.

Posted By McGlinchey Stafford at 09:00 AM | Comments / Questions (0)

Class, we are delighted to bring you another guest post.  Professor Elizabeth Chamblee Burch of the Cumberland School of Law at Samford University in Birmingham, Alabama is here to enlighten you on CAFA’s impact on litigation as a public good.  I know many of you are wondering if there is anything good in CAFA at all.  Well, Professor Burch posits the position that the effects of CAFA are bad.

Please give Professor Burch your attention.  Excuse me, I see we have a question.  Yes, Mr. Seymour?  I know that football season is starting, but you cannot ask her if she is an Alabama or an Auburn fan.  However, before agreeing to allow her to appear as one of our guest columnists, we did verify that she is not a supporter of Nick Saban's view on the Class Action Fairness Act. Mr. Wilbourn, you can put your hand down.  I am not going to even call on you.

Now, please give your attention to Professor Burch.

Posted By McGlinchey Stafford at 08:50 PM | Comments / Questions (0)

Horan, David, Appealing Remand Orders under the Class Action Fairness Act, 8 J. App. Prac & Process 281 (2006).

Hello, federal court lover. So you opposed remand, lost, and your case has been remanded to the dreaded ninth circle otherwise known as state court.

Posted By McGlinchey Stafford at 08:31 AM | Comments / Questions (0)

Walker, Laurens, The Consumer Class Action Bill of Rights: A Policy and Political Mistake, 58 Hastings L.J. 849 (April, 2007).

Posted By McGlinchey Stafford at 08:00 AM | Comments / Questions (0)

Reiss, John B., et al., Your Business in Court—2006, 62 Food & Drug L.J. 305 (2007).

In its annual review of “Your Business in Court,” the Food and Drug Law Journal authors took note of three CAFA-related matters. 

Posted By McGlinchey Stafford at 08:51 AM | Comments / Questions (0)

Coordinating Related Banking Cases on an Intra-State Basis, 124 Banking L.J. 637 (July, 2007)

Our story begins with a lone warrior, schooled in the ancient arts, clutching her weapon, passing through enormous oak doors. Quietly, openly and deliberately our hero walks through the narrow aisle leading from the doorway. The warrior’s eyes bounce left, then right, alternating smoothly yet sharply with each step.   The warrior stops as the aisle ends and the passage opens to a spacious square area, no ornate décor, finely polished wooden floors. In short order, our hero is surrounded by multiple attackers rather than facing her opponent one-on-one. Is it the Bride coming to exact her revenge on the Deadly Viper Assassination Squad? http://en.wikipedia.org/wiki/Image:The_bride_%28kill_bill%29.JPG 

Is she armed with her katana fashioned by the legendary sword-smith Hattori Hanzō? http://en.wikipedia.org/wiki/Image:SW-320E-4.jpg 

Are the surrounding attackers the Crazy 88 gang ordered to attack by Deadly Viper O-Ren Ishii? http://en.wikipedia.org/wiki/Image:Crazy88.jpg Well, not so much.

Posted By McGlinchey Stafford at 08:26 AM | Comments / Questions (0)

Adrogué, Sophia, Recent Developments In Fifth Circuit Business Torts Jurisprudence, 39 Tex. Tech L. Rev. 587 (2007).

In her annual review of the Fifth Circuit’s business tort opinions, Houston, Texas attorney Sophia Androgué features a pair of 2006 CAFA cases surely to be familiar to our faithful readers: Patterson v. Dean Morris, LLP (dealing with commencement and scope of appellate review of remand orders under CAFA) and Braud v. Transport Service Company of Illinois (another commencement opinion). In case you missed our posts (or just want to read more about the how the judges of the Fifth Circuit are dealing with CAFA issues), take a peek at Ms. Androgué’s article in the Spring 2007 issue of the Texas Tech Law Review. (Editors' Note: for a scholarly analysis of these two cases worthy of a law review see the CAFA Law Blog analysis of Patterson posted on June 5, 2006, and the CAFA Law Blog analysis of Braud posted on May 24, 2006).

Posted By McGlinchey Stafford at 07:52 AM | Comments / Questions (0)

(Editors’ suggestion—to maximize your reading pleasure, try reading the following post in your best Ben Stein impersonation, circa “Ferris Bueller’s Day Off.”)

The Federal Reserve has issued a letter providing guidance to regulated banking and financial institutions on their duties to provide notice of proposed settlements to their state and local regulators. The notice states that, within 10 days after the filing of a proposed class action settlement agreement with the court, any defendant financial institution covered by the law and supervised by the Federal Reserve should send notice of the proposed settlement to the General Counsel at the responsible Federal Reserve Bank. The notice required to be filed with the Federal Reserve Bank must also be filed with the financial institution’s state bank supervisor, if any.

Posted By McGlinchey Stafford at 05:00 AM | Comments / Questions (0)

Hey guys, we found another law review article while we were out scouring the internet for CAFA goodies. The title of this one is Protecting Federalism Interests after the Class Action Fairness Act of 2005: A Response to Professor Vairo by Heather Scribner published in the Winter 2005 issue of the Wayne Law Review. 

Posted By McGlinchey Stafford at 04:54 AM | Comments / Questions (0)

Class Action Fairness Act 2005 – Potential Pitfalls for Defendants by Andrew J. McGuinness and Richard Gottlieb, Andrew’s Class Action Litigation Reporter, Volume 13, No. 9 Andrew’s Class Action Litig. Rep. 16. (October, 2006).

Finally, some practical application in all of these articles. Authors McGuinness and Gottlieb published an article in Andrew’s Class Action Litigation Reporter giving us a few practice pointers. And pretty good ones too.  Although these pointers are drafted from the perspective of the defendants, those readers who represent plaintiffs should be able to figure out how to make them work for you too.

Posted By McGlinchey Stafford at 04:28 AM | Comments / Questions (0)

Robert E. Bartkus, Defendants Removal Burden, New Jersey Law Journal (Feb. 19, 2007).

On February 19, 2007, Robert E. Bartkus, published a short article in the New Jersey Law Journal, regarding the burden of proof for removal cases under the new provisions of CAFA. Bartkus cites heavily the Third Circuit case of Morgan v. Gay and the Second Circuit case of Blockbuster v. Galeno throughout the article. Bartkus states that in recent cases where defendants have removed actions to federal court on the basis of CAFA, they have attempted to change the traditional rule that the party asserting federal subject matter jurisdiction has the burden of proving jurisdiction, with no success. (Editors' Note: See the CAFA Law Blog analysis of Blockbuster posted on January 24, 2007 along with our analysis of its holding posted on January 26, 2007. As for the three Morgan cases, the district court opinion was analyzed on October 24, 2006, the first Third Circuit opinion was analyzed on December 7, 2006, and the second Third Circuit opinion was analyzed on January 19, 2007. You avid readers already know our position on this issue.  But just in case you don’t, see our law review article on the subject). 

Posted By McGlinchey Stafford at 04:26 AM | Comments / Questions (0)

The opportunity to curl up with an entire law review symposium on CAFA causes us to start humming the music to Will Smith's Gettin' Jiggy Wit It.  You don't have to admit it, but you know we know you feel the same way too.  The Loyola of Los Angeles Law Review has published an issue containing five articles all about CAFA. The title of their new issue is Developments in the Law: The Class Action Fairness Act of 2005. It is Volume 39 ,No. 3 published in September of 2006. 

The Foreward is by Georgene M. Vairo. The articles are:

Removal, Remand, and Other Procedural Issues Under the Class Action Fairness Act of 2005 by Lauren D. Fredricks

Plaintiffs' Paradise Lost: Diversity of Citizenship and Amount in Controversy Under the Class Action Fairness Act of 2005 by Cameron Fredman

Once More Into the Breach, Dear Friends: the Case for Congressional Revision of the Mass Actions Provisions in the Class Action Fairness Act of 2005 by S. Amy Spencer

New Rules for Class-Action Settlements: the Consumer Class Action Bill of Rights by Jennifer Gibson

The Class Action Fairness Act of 2005: a First Year Retrospective Review by Lonny Sheinkopf Hoffman.  (Editors' Note:  Professor Lonny Hoffman is one of favorite authors on CAFA issues.  See the CAFA Law Blog  analysis of his recent law review article on commencement issues and his guest post on the CAFA Law Blog on commencement issues.)

Posted By McGlinchey Stafford at 04:47 AM | Comments / Questions (0)

Fern P. O’Brian & Joshua I. Kaplan, Analysis & Perspectives—The Class Action Fairness Act of 2005: Where Have We Been and Where Do We Go From Here?, Class Action Litigation Reporter Vol. 8, No. 4.

For today’s reading pleasure, we provide you with another CAFA primer and overview. The read, eight pages of CAFA glory, runs you through CAFA at a blistering pace (kind of like a tour bus driver whizzing past the Grand Canyon at 100 miles per hour) from beginning to end, pointing out all the hot spots along the way.  It does its job, just don’t expect to take over the world afterward. 

The article isn’t all a retread, though.  It does provide some perspective on the future of the Act, such as a prediction that the plaintiffs’ bar will start originating class actions in federal court if and when class action reform fully permeates state procedural laws. The predicted result—to make the defendants fight (and carry the burden?) to get back to state court where it’s nice and safe. 

Posted By McGlinchey Stafford at 04:50 AM | Comments / Questions (0)

Timothy Kerr, “Cleaning Up One Mess to Create Another: Duplicative Class Actions, Federal Courts’ Injunctive Power, and the Class Action Fairness Act of 2005,” 29 Hamline L. Rev. 218 (Spr. 2006).

Timothy Kerr has some pointed criticism for the Class Action Fairness Act of 2005. “Ultimately, I argue that the Class Action Fairness Act will have undesirable effects that outweigh its potential as a partial solution to the specific problems of duplicative class actions,” he declares in the opening paragraph of his scholarly piece about the interrelationship between CAFA and the judiciary’s ability to tackle problems associated with duplicative litigation.

Kerr endeavors to outline the problems posed for the federal bench by duplicative class actions, and outlines particular concerns generated by Rule 23 and the Anti-Injunction Act. He addresses the tension between the Anti-Injunction Act and the federal abstention doctrine. Finally, he offers his suggested prescriptions for Congressional reforms that might allow state and federal actions to maintain parallel or sequential tracks. CAFA’s expansion of federal diversity jurisdiction, says Kerr, represents a “disproportionate” Congressional response to problems posed by duplicative actions. Kerr argues that “Congress should not focus on original diversity or removal jurisdiction, but should focus on the amendments to the Anti-Injunction Act or the Rules Enabling Act to allow the courts and rule-makers to respond in the most effective manner.”

Posted By McGlinchey Stafford at 04:12 AM | Comments / Questions (0)

CAFA and Erie:  Unconstitutional Consequences?, Volume 75 Fordham Law Review 1065 (2006).

The Editors of the CAFA Law Blog are delighted to present a guest post for our readers.  Justin Forlenza, a 3L at the Fordham Law School, has just published a law review article that analyzes the relationship between one of our favorite topics, the Class Action Fairness Act, and a topic we have not thought much about since we were in law school ourselves, the Erie doctrine.  Now we turn over the microphone to Justin Forlenza.

Posted By McGlinchey Stafford at 02:21 AM | Comments / Questions (0)

Ashish R. Talati, The Class Action Fairness Act of 2005: Changing the Class Action Landscape, Circuit By Circuit, 61 Food & Drug L.J. 561 (2006).

Although Chris Farley and Julie Andrews dashing through an open meadow – hand in hand - harmonizing “these are a few of my favorite things” would be intensely entertaining (at least to us), the Food & Drug Law Journal couldn’t muster such a meeting. Those of us who are members of both Farley’s and Andrew’s fan clubs, of which there is a surprisingly high number, are again left downtrodden and depressed – something the Food & Drug Law Journal probably could help with.

I forgot, what were we doing here…oh yeah, an article about the Class Action Fairness Act. This article serves its purpose, providing a primer on CAFA for readers of the Food & Drug Law Journal. The article reviews CAFA’s principle provisions and summarizes the big name cases. But don’t expect to finish feeling inspired – you’ll need to up your dosage of Prozac for that.

Bottom Line: We are high on life (we promise that’s all), so we’ll pass on this one.

Posted By McGlinchey Stafford at 02:20 PM | Comments / Questions (0)

Lawrence Hurley, Two Years On, Class-Action Law Brings Unclear Effect, Daily Journal (2007).

In an article out of the Daily Journal, Elizabeth Cabraser of the plaintiffs’ firm Lieff Cabraser Heimann & Bernstein, is quoted by Lawrence Hurley as declaring that regarding CAFA: “In purely practical terms, we haven’t seen any catastrophic ramifications yet.” The article focuses on CAFA’s effects, or lack thereof, on certain areas of class action practice in the almost two years since its enactment. What’s the verdict on CAFA’s first two years? Well, the collective opinion seems to be – it's too early to tell.

The defense attorneys consulted in the article seemed to be generally happy about CAFA’s effects. John Beisner, a member of a Washington D.C. based defense firm, says he thinks CAFA “has generally had the impact people wanted.” Cabraser agreed - sorta. She believes that CAFA will produce a bottleneck of class action cases in federal court, and claims this is exactly what supporters of the legislation “secretly” wanted. Cabraser explained, “[i]f nothing happens, the plaintiffs run out of money or lost interest.”

Besides the pontification about CAFA’s past and future effects, the article also touches on CAFA's burden of proof issue, noting the confusion over who bears the burden of establishing federal jurisdiction. Cabraser opined: “It’s the first question in CAFA that’s leading to a circuit split and important enough for Supreme Court review.”

Posted By McGlinchey Stafford at 02:34 AM | Comments / Questions (0)

Michael Hoenig, Atkins Diet Alleged Harm; CAFA’s Jurisdictional Demands, 1/08/2007 N.Y.L.J. 3, Volume 237 (2007).

In the Products Liability section of January’s issue of the New York Law Journal, Michael Hoenig reviews two interesting new opinions. In Gorran v. Atkins, Judge Chin of the Southern District of New York, considered whether a plaintiff claiming he suffered adverse consequences from following the Atkins Diet could recover against the Atkins Empire on claims of products liability, negligent misrepresentation, and deceptive conduct. The result? No soup for the plaintiff - although word is he is currently binging on carbs. Judge Chin dismissed the plaintiff’s action for failure to state a claim. The heirs of Dr. Atkins can enjoy their bacon cheeseburgers in peace.

The other new release was a case from the Second Circuit considering whether a defendant removing under CAFA bears the burden of establishing jurisdiction or whether the plaintiff must demonstrate federal jurisdiction doesn’t exist. In Blockbuster v. Galeno, Blockbuster removed a suit filed against it for its No Late Fees program to federal court alleging jurisdiction under CAFA. (Editors' Note:  See the CAFA Law Blog analysis of Blockbuster posted on January 25, 2006.  Also, see our critique of Blockbuster posted on January 26, 2007). 

After the plaintiff’s motion to remand was denied, the plaintiff appealed to the Second Circuit Court of Appeals. Blockbuster argued that CAFA altered the tradition diversity jurisdiction burden of proof by placing a burden to demonstrate jurisdiction does not exist on the party attempting to stay out of federal court. Blockbuster pointed to CAFA’s legislative history as an indication of Congress’s intent to shift the jurisdictional burden to the party opposing federal jurisdiction. However, the Second Circuit disagreed with Blockbuster, pointing to the lack of a clear textual directive in the statute to shift the burden of proof, putting the court in lock step with every other Circuit Court to address the issue.

For a different take on who should shoulder CAFA’s jurisdictional burden of proof, check out the recently published article drafted by three of our own leading men:  H. Hunter Twiford, III, Anthony Rollo & John T. Rouse, CAFA’s New "Minimal Diversity" Standard For Interstate Class Actions Creates A Presumption That Jurisdiction Exists, With The Burden of Proof Assigned To The Party Opposing Jurisdiction, 25 Miss. C. L. Rev. 7 (2005).

Bottom Line: Good reading material for a 10 minute coffee break – and you don’t have to return it within 2 days or pay a late fee.

Posted By McGlinchey Stafford at 01:43 AM | Comments / Questions (0)

Lonny Hoffman, The Commencement Problem: Lessons From a Statute’s First Year, 40 U. C. Davis L. Rev. 469 (2006) [full text available either at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=881779or http://lawreview.law.ucdavis.edu/articles/Vol40/vol40_no2.html].

In a guest post available here, Professor Lonny Hoffman of the University of Houston Law Center, takes a critical look at how courts have addressed CAFA commencement issues. He proposes that the now almost default answer to a commencement issue - perform a relation back analysis - is erroneous, and suggests that the courts should have focused on the statutory interpretation issue these cases raise – what did Congress mean when they set the trigger for CAFA’s application as whether or not a case had commenced? But why does this matter anyway? Aren’t most CAFA commencement issues played out by now? The answer is simple. As long as Congress decides to employ the word “commencement” as a trigger for the applicability of a statute, it will matter how courts interpret that trigger. Therefore, although CAFA commencement cases may be receding faster than Donald Trump's hairline, the issue will raise its deceptively complex head again.

Posted By McGlinchey Stafford at 01:15 AM | Comments / Questions (0)

The Editors of the CAFA Law Blog are honored to bring you a Guest Post from Professor Lonny Hoffman, the George Butler Research Professor of Law, of the University of Houston Law Center.  Professor Hoffman has some very interesting (and we think correct) thoughts about the theory behind the courts' decisions on CAFA's commencement cases, as well as how that theory may raise its ugly head in future cases.  Now, class, we turn the podium over to Professor Hoffman....

Posted By McGlinchey Stafford at 01:16 PM | Comments / Questions (0)

Lauren D. Fredricks, Removal, Remand, And Other Procedural Issues Under The Class Action Fairness Act of 2005, 39 Loy. L.A. L. Rev. 995 (2006).

Ms. Lauren Fredricks, a 3L on the Loyola of Los Angeles Law Review, provides a nice addition to the Law Review’s symposium on CAFA with her review of CAFA’s procedural provisions, and the subsequent issues emanating from the statute. Part A of this symposium article discusses choice of forum and removal historically, including federal jurisdiction pre-CAFA and opportunities for abuse and “gamesmanship.” “Parts B and C describe the current procedural avenues for class action removal and appeal of a remand order under CAFA, evaluating ambiguous provisions, and practical implications.” Part D looks at miscellaneous CAFA-related procedural issues such as the heavily debated jurisdictional burden of proof issue, commencement, and various discovery issues. Finally, Part E concludes that despite some drafting errors and several ambiguous provisions, CAFA accomplishes Congress’s purposes behind the statute.

Bottom Line: Quick read (30 pages) providing review and update on the basics you might says its as easy as ABC, 123 - .

Posted By McGlinchey Stafford at 01:10 AM | Comments / Questions (0)

Helen Norton, Reshaping Federal Jurisdiction: Congress’s Latest Challenge To Judicial Review, 41 Wake Forest L. Rev. 1003 (2006).

Although the confirmation process of a federal judicial nominee attracts more attention than most of Congress’s other checks on the federal judiciary, the legislative body utilizes a number of more subtle tools to influence the federal judiciary. One such tool is its ability to control what type of cases make it into federal court by expanding or contracting federal jurisdiction. This interesting article discusses Congress’s recent use of the Class Action Fairness Act, The Pledge Protection Act, and The Defense of Marriage Act, among other recently enacted statutes, to dictate what claims make it into a federal courthouse. Regarding CAFA, the authors opine that “CAFA's enactment reveals that even politically accountable state judges face jurisdictional change when they deliver results unpopular with Congress on state law questions.” What does that mean? Politics had nothing to do with CAFA!

Posted By McGlinchey Stafford at 01:17 AM | Comments / Questions (0)

It seems like more and more Law Journals and Law Reviews are looking at CAFA. We would like to think that this is the case, but NYLJ probably cited this one because of its local impact. The NYLJ posts Decisions of Interest on its subscription site and this time it is the recent case of DiTolla v. Doral Dental IPA of New York, LLC, No. 06-2324-cv (2d Cir. November 17, 2006). Its kinda hard to get to on the NYLJ site without a subscription, but you can still pick it up by entering the cite as “11/30/2006 NYLJ 26 (col. 3)” in your favorite legal search cite. The NYLJ simply posted the case, but if you would like to see our summary and insight on the issues, here is a link to our analysis posted on December 28, 2006. 

Posted By McGlinchey Stafford at 01:10 AM | Comments / Questions (0)

Bob Yates, Class Action Fairness Act, more than a year later, Chicago Lawyer, December 2006, at 54 .

“The trends are visible,” Rollo said, “but we’re still only in the first or second inning of a nine-inning game.” What could our fearless Editor-in-Chief be referring to? A Nor’easter blowing up the East Coast?...A Category 5 churning in the Gulf?...Nooo – the Class Action Fairness Act, of course. This article out of the Chicago Lawyer reviews the short history of CAFA, and provides differing perspectives on CAFA’s impact by interviewing class action experts with varying backgrounds. The article reviews the events leading up to passage of the Act, an overview of the Act’s mechanics, and a debate over who will benefit, and who will suffer, from CAFA’s enactment. Which is where we pick up Anthony again. What does he think CAFA’s effect has been? “The net effect of CAFA is like Goldilocks. Not too good for the plaintiff, not overly detrimental to the plaintiff, just right so far – although I would put an arrow pointing in favor of defendants as to who has benefited most from CAFA.”  With colorful analysis like that - Cantore - you better watch your back.

Bottom Line: Interesting review of CAFA’s impact thus far – sprinkled with takes on CAFA from experts across the country.

Posted By McGlinchey Stafford at 12:58 AM | Comments / Questions (0)

H. Hunter Twiford, III, Anthony Rollo & John T. Rouse, CAFA’s New "Minimal Diversity" Standard For Interstate Class Actions Creates A Presumption That Jurisdiction Exists, With The Burden of Proof Assigned To The Party Opposing Jurisdiction, 25 Miss. C. L. Rev. 7 (2005).

Over the sound of chestnuts roasting over an open fire, you can hear the sizzle of the blazing law review article that answers the hot question of who bears the burden of proving Minimal Diversity jurisdiction.  We gave you a sneak peek on this law review article back on May 5, 2006.  Now the article has been published.

The authors’ extensive analysis concludes that, correctly interpreted, the Class Action Fairness Act’s text, purposes, and legislative history create a presumption in favor of finding that Minimal Diversity Jurisdiction exists in interstate class actions, with the burden of proof on the party opposing jurisdiction

This in-depth article explains why Congress intended to switch the jurisdictional burden of proof standard for Minimal Diversity under CAFA from the pre-existing rule governing Complete Diversity – which is restrictive, and places the burden of proof on the proponent of federal jurisdiction – because the purposes behind these two jurisdictional enabling statutes are not only different, but are, in fact, opposite. While the courts have split on this question, the authors describe why they believe that Brill, Abrego and similar decisions which hold to the contrary are decided incorrectly. Among other things, each of these courts, the authors note, have completely overlooked Section 2 of CAFA’s text, “Findings and Purposes,” in their burden of proof analyses.

Bottom Line:  This is "the" discussion of jurisdictional burden of proof for Minimal Diversity under CAFA.  You will want to put down the eggnog to read this one.

Posted By McGlinchey Stafford at 12:46 AM | Comments / Questions (0)

Philip Stephen Fuoco & Joseph A. Osefchen, Leveling The Playing Field In The Garden State: A Guide To New Jersey Class Action Case Law, 37 Rutgers L. J. 399 (2006).

Hey – you’re not dealing with a couple of jamooks here. This couple of good fellas from the neighborhood give their fellow class action practitioners a taste by summarizing every class action decision ever handed down in New Jersey. Working for the family (of NJ class action practitioners), these soldiers described their plan as: “It was the authors' intent to locate every reported New Jersey class action decision, and as many unreported class action opinions as feasible. To provide context, we combined this research with a brief history of the class action device. In doing so, we found that studying the historical use of the device helps to place modern arguments in perspective.” Such dedication will almost certainly set them up to take the Omerta – the gateway to becoming a Wiseguy.

Bottom Line: Gotta respect the usefulness if you are in waste management or practice in New Jersey. Outside of the neighborhood – you know, maybe you don’t waste your time.

Some of you goombahs might need this to understand this post: http://www.hbo.com/sopranos/mobspeak/

Posted By McGlinchey Stafford at 12:54 AM | Comments / Questions (0)

Stephen B. Burbank, Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, 106 Colum. L. Rev. 1924 (2006).

Academic banter – tantalizing, we know. But at least its practical. In this article from the Columbia Law Review’s recent symposium on litigation reform, Professor Stephen Burbank of the University of Pennsylvania responds to Professor Richard Nagareda’s article on aggregated litigation and CAFA, and Professor Samuel Issacharoff’s article on choice of law after CAFA. The debate, at least from Burbank’s perspective, focuses on “procedure as an instrument of power,” and Congress’s strategic use of ambiguity and hypocrisy in finding a solution “to the problem of nationwide classes in cases governed by state substantive law.”

Posted By McGlinchey Stafford at 12:51 AM | Comments / Questions (0)

Brent M. Rosenthal, Misty A. Farris & Amanda R. Tyler, Toxic Torts And Mass Torts, 59 S.M.U. L. Rev. 1579 (Summer 2006).

Posted By McGlinchey Stafford at 12:52 AM | Comments / Questions (0)

Don Zupanec, Federal Litigator, Law And Motion: Notice of Removal - Multiple Defendants - Consent, December (2006).

In this article out of the Federal Litigator, Don Zupanec provides a summary of Andreshak v. Service Heat Treating, Inc. 439 F.Supp.2d 898 (E.D.Wis. 2006), a case in which the district court reminded the defendants about a rule we all learned in elementary school: No one gets any unless everyone does. Most of us know that in lawsuits involving multiple defendants, all defendants who may properly join in removal must consent to removal. Well, in this case, one of the defendants forgot his permission slip for the field trip to the federal courthouse.

In Andreshak, two defendants jointly filed a timely removal petition. Attached to the removal petition was an affidavit from a third defendant in the action, however this defendant had not joined in the petition. Further, the two removing defendants provided no explanation as to why the third defendant was not joined in the petition. After the plaintiff moved to remand, the truant defendant promised the court that it had been fine with removal at the time the other defendants filed the removal petition, and finally filed its own affidavit consenting to removal.

Too late.

The defendants’ 30 day “get out of state court” window had expired like a carton of milk stuck in the back of the cooler. The court concluded removal was improper, and the defendants were sent to detention in state court.

Posted By McGlinchey Stafford at 12:11 AM | Comments / Questions (0)

Jeffrey I. Carton & Lindsay M. Held, A New Battleground For The Class Action War, 10/10/2006 N.Y.L.J. 10, Volume 236 (2006).

Despite an overly dramatic title/metaphor, this article out of the New York Law Journal poses an interesting question: Are class action waiver provisions in consumer contracts enforceable? Or, in sticking with the authors’ metaphor, do these provisions amount to an (unconscionable) ambush or a (knowing and voluntary) duel?

The authors introduce the issue of class action waivers by characterizing the Class Action Fairness Act as a "battle" in the “open warfare between the diametrically opposed sides of the class action struggle.” After a short description of the Act, the authors shift to the article’s real focus, class action waivers, calling them the “next battleground” in the “class action war.” The authors then Charge!(sorry, couldn’t help it) into a discussion of the pervasiveness and enforceability of these clauses, covering the major cases considering the clauses. The authors’ conclusion: “[C]lass arbitrations should be permitted, but broad based class action waivers should not be enforced as a matter of public policy.”

Bottom Line: Interesting article on class action waivers – hits the high points and provides a concise review of the law on the issue. Soldier On.  After reading this article, you may want to strap on your battle gear, i.e., laptop and PDA, and take up the fight. 

Some other metaphors the authors might have considered given the one they selected:

A Fight To The Death: The Blood Match Over Enforcing Class Action Waivers

Nuclear Holocaust: The Fallout From Class Action Waivers

Eradicating the Black Plague, Bird Flu, And Class Action Waivers

Posted By McGlinchey Stafford at 11:53 AM | Comments / Questions (0)

Daniel R. Karon, How Do You Take Your Multi-State Class Action? One Lump Or Two? Infusing State Class Action Jurisprudence Into Federal, Multi-State, Class Certification Analyses In A “CAFA-Nated” World, 46 Santa Clara L. Rev. 567 (2006).

In this article out of the Santa Clara Law Review, Daniel Karon discusses whether “federal judges may rely on years of state class-action jurisprudence to decide class certification under Federal Rule of Civil Procedure 23 when considering multi-state, class action lawsuits alleging a single state law’s substantive application.” You may need to go heat up your coffee after unpacking that introductory sentence…or grab an espresso to get you through it, depending on your interests. The author brews his argument by introducing CAFA, exploring its effects on subject matter jurisdiction, discusses the “choice of law conundrum CAFA created,” and finally concludes that federal courts may draw upon state law decisions when analyzing certification under Rule 23. How he reaches that conclusion? Well you’ll just have to grab a cup, or pot, and imbibe this baby yourself.

Apparently the author experienced a bitter aftertaste after drinking from CAFA’s cup. He complains that CAFA arguably created more problems than it solved by introducing “multiple substantive, jurisdictional, and other theoretical challenges.” We are forced to ask rhetorically, what statute that actually changes the law doesn’t? But every CAFA connoisseur is entitled to his own opinion.   

Posted By McGlinchey Stafford at 11:50 AM | Comments / Questions (0)

BNA "Class Actions Moving To Federal Courts As Result Of New Legislation, Study Shows", Legal News, Volume 75, No. 10, Sept. 19, 2006.

As previously reported by the CAFA Law Blog, the Federal Judicial Center, the research arm of the federal judiciary, conducted a study over the six month period following the enactment of the Class Action Fairness Act that showed a substantial increase in class action filings and transfers to federal court. This BNA article provides a concise summary of the study’s results and just enough background to put it in context.

If you missed our first analysis on this study, here is a quick summary: The study examined over 10,000 class action filings in federal district courts from July 1, 2001- June 30, 2005. After CAFA’s enactment date, February 18, 2005, the percentage of class actions removed to federal court increased from 18% to 23 %. From February 18, 2005- June 30, 2005, the percentage of class actions filed in federal district courts decreased from 82% to 77%. Contract based cases increased by 4.5 %, however tort claims have only increased 4 %, not a statistically significant increase, according to the study.

Stay tuned for the FJC’s next report in the Spring of 2007 (we don't know about you, but we can't wait)  analyzing class actions filed or removed to federal court between July 1, 2005- June 30, 2006.

Bottom Line: If you are not familiar with the FJC study showing that CAFA is actually having it’s intended effect, this article will provided you with a high altitude look at the study’s results.

Posted By McGlinchey Stafford at 11:30 AM | Comments / Questions (0)

Martinek, Paul J., Pain In The Class: CAFA Boosts Legal Costs, Compliance Week, Aug. 29, 2006.

In Blazing Saddles, Hedley Lamar, (not Hedy) was on a crusade to stamp out decency in the West.  Similarly, with the Class Action Fairness Act, Congress was on a crusade to stamp out the numerous abuses in class actions that were thwarting the national judicial system and interstate commerce.

In this article out of Compliance Week, Paul J. Martinek discusses CAFA's crusade and effect on the cost of litigating a class action and includes the thoughts of several well respected practitioners in the class action arena. CAFA has already accomplished many of its intended purposes, including the litigation of more class actions in federal court.  However the incorporation of CAFA into class action practice has resulted in a rise in the cost of litigating these unique actions. In the article, CAFA Law Blog’s Editor in Chief Anthony Rollo explains that most of this cost is a result of “the friction that comes from litigating each of [CAFA’s] little jurisdictional provisions.” Rollo continued, predicting “[f]or the first three to seven years, or until the law is clear, there’s going to be that greater expense. Once the law is clear it will be more smooth, and without the transactional costs we’re seeing at the front edge.”

Simply taking the edge off CAFA hasn’t been the only reason costs have risen. Rollo thinks CAFA may also be decreasing the chance of settlement by restricting the use of coupon settlements. Before CAFA, a defendant that may have been agreeable to a coupon settlement may not be as apt to pursue the same settlement as CAFA has limited the coupon settlements economic attractiveness to a defendant. Combine the extra cost of judicially defining many of CAFA’s provisions with an extended battle, Rollo estimates CAFA has increased the cost of litigating a class action anywhere from 10 to 30 percent, depending on the particular circumstances of each case.

Martinek also explores CAFA’s general impact with Edward Waller, Brian Cabianca, and David Balser, and CAFA’s plaintiff friendly aspects with Paul Rheingold and Joseph Cohen.  Unfortunately, for us Mel Brooks' fans, Sheriff Bart and the Waco Kid were not interviewed - they must have been held up at the William J. La Petomane thruway.

Bottom Line: Good conversational piece providing some insight from people actually in the arena, whose face is marred by the dust and sweat and blood of CAFA. Ok, a little dramatic, but anytime is a good time to incorporate a Teddy Roosevelt quote.

Posted By McGlinchey Stafford at 10:47 AM | Comments / Questions (0)

Anthony Rollo, H. Hunter Twiford III, and John Rouse, CAFA Enunciates A New Burden Of Proof Standard For Federal Jurisdiction, Consumer Financial Services Law Report, Vol. 10, Issue 5 (August 9, 2006).

There aren’t many mantles of honor that hold a higher distinction than the refrigerator door, so when three of our own editors, Anthony Rollo, Hunter Twiford, and John Rouse, brought home this article – well, we were down right proud, and decided to move the dentist appointment reminder and put the article in its place. The article, from the August 2006 issue of the Consumer Financial Services Law Report, takes a look at CAFA’s jurisdictional burden of proof and comes back with a unique, and in our estimation, compelling argument.

The premise of the argument is simply that "CAFA’s text, purposes, and legislative history combine to create a presumption in favor of finding that minimal diversity jurisdiction exists, with the burden of proof assigned to the party opposing jurisdiction." The authors reach this conclusion by considering the effect of CAFA’s introduction of a new minimal diversity standard for interstate class actions into section 28 U.S.C. 1332. The article argues that the introduction of this jurisdiction expanding standard, when considered against the background of Congress’ findings and purposes for CAFA, indicate Congress’ intent that courts apply a different standard and shift the burden of proof to the party challenging jurisdiction. However, many courts considering jurisdiction under CAFA have ignored CAFA’s legislative history and applied the traditional complete diversity burden of proof presumption that the party asserting jurisdiction bears the burden of proving all jurisdictional requirements have been satisfied. Take a look and see if you agree.

Bottom Line:  A well-written article (even if we must say so ourselves) espousing an interesting and arguably correct approach to CAFA’s jurisdictional burden of proof. Who knows, you may like it so much it ends up on your refrigerator door….

The full text of the article is published with the express permission of the Consumer Financial Services Law Report and LRP Publications, Inc. The article is copyright 2006 by LRP, all rights reserved, and is reprinted on the CAFA Law Blog site with permission.

The Editors of the CAFA Law Blog thank Consumer Financial Services Law Report and LRP for their continuing support in publishing articles related to CAFA. Anthony, Hunter and John also welcome comments from the readers of the CAFA Law Blog as to the contents of and opinions expressed in the article.

Posted By McGlinchey Stafford at 09:20 PM | Comments / Questions (0)

Woolley, Patrick, Erie And Choice Of Law After The Class Action Fairness Act, 80 Tul. L. Rev. 1723 (2006).

While CAFA may not have Sue Ellen Ewing to offer, the law has had dynamic effects on class action practice, and this article out of the Tulane Law School’s summer symposium entitled Class Actions in the Gulf South provides more than a teaser of what to expect on the choice of law front. In this article, Professor Patrick Woolley of the University of Texas School of Law delves into CAFA’s potential affects on an already convoluted area of the law. Professor Woolley questions Congress’s reliance on CAFA’s subject matter provisions to influence choice of law analyses in multi-state class actions, instead suggesting Congress should have seized control of the complex issue by passing specific choice of law provisions under Article III and IV. The professor objects to Congress’s assumption that application of a single state’s law in a multi-state class action is necessarily unconstitutional, pointing out that such a presumption severely undercuts the traditional choice of law presumption in favor of forum law. Also addressed is the substitution of Federal Rule of Civil Procedure 23’s burden of proof for the choice of law burden. According to Professor Woolley, a federal court is bound to apply the choice of law rules of the state in which it sits, however many federal courts ignore the state’s choice of law provisions by placing the burden of proof on the class proponent due to Rule 23.

Bottom Line: Choice of law is complicated and often a guessing game. Throw in more uncertainty due to CAFA’s implicit application to the area, and you’ve got a mess. Saving this well written article may save a lot of time and frustration down the road.

Posted By McGlinchey Stafford at 09:15 AM | Comments / Questions (0)

Thomas E. Willging & Shannon R. Wheatman, Attorney Choice of Forum In Class Action Litigation: What Difference Does It Make?, 81 Notre Dame L. Rev. 591 (2006).

How do you know you’re not a figment of someone’s imagination or a two-bit player in someone else’s dreams? Ok, granted – your life is probably not going on all inside someone named Carl’s head, but it never hurts to question some of your beliefs and prejudices, right? Well, this article may just force you to do that.

Willging, a Senior Researcher with The Federal Judicial Center, and Wheatman, a former research associate with The Federal Judicial Center, put pen to paper on several common assumptions made by attorneys regarding forum based advantages in class action litigation. Particularly challenged by this article/study is the premise that federal court is a superior forum to adjudicate multi-state class actions – characterized by the authors as a “major premise” of the Class Action Fairness Act. The article takes on attorneys’ general perceptions regarding judicial predispositions, judicial rulings, and monetary recoveries in state and federal court, and then does the research – producing some surprising results: attorney expectations only proved to be accurate in 50% of the cases. What else are we getting wrong half of the time?

Bottom Line: Interesting article questioning “common sense” perceptions made by attorneys on a daily basis - and answering those questions with cold, hard, and unexpected facts.

Added Bonus for Our Faithful Readers:  You may also access the Interim Progress Report on the Class Action Fairness Act Study by Willging and Emery Lee for the Federal Judicial Center Research Division dated May 22, 2006 by clicking here.

Posted By McGlinchey Stafford at 09:32 AM | Comments / Questions (0)

Robert H. Klonoff & Mark Herrmann, The Class Action Fairness Act: An Ill-Conceived Approach To Class Settlements, 80 Tul. L. Rev. 1695 (2006).

Nationally renown class action expert Robert Klonoff and his co-author, Mark Herrmann, take CAFA’s drafters to task, criticizing CAFA’s settlement provisions for their less than comprehensive coverage of settlement contingencies in this article from Tulane Law School’s summer symposium discussing class actions.  Before exposing CAFA’s settlement provision faults, the authors acknowledged the provisions’ “laudable purpose” of stopping class action settlement abuse and disproportionate coupon settlements such as the class action brought against Blockbuster for allegedly charging excessive late fees.  The video chain settled the suit by disbursing $1 discount coupons to class members for future rentals while class counsel earned $9.25 million dollars in fees. Sounds fair.  The Netflix people think so.

After giving Congress a “well, at least you tried,” Klonoff and his comrade expose many unanswered questions sure to provide fodder for future litigation, such as: what exactly constitutes a coupon?; how should courts realistically value coupons?; when has a coupon been redeemed?; etc. The authors also point out that coupon settlements constitute only 10% of class action settlements, leaving a wide range of settlement options open to class counsel.  One such option is a “reversionary” settlement where any uncollected funds revert to the defendant – a settlement template carrying the same potential for abuse as coupon settlements.  CAFA fails to address reversionary settlements. But instead of just finding fault, Klonoff and Herrmann provide Congress a suggested amendment to cure the perceived ailments - but you’ll have to read the article for that.

Posted By McGlinchey Stafford at 09:59 AM | Comments / Questions (0)

James M. Garner, Congressional Welcome To Federal Court—The Class Action Fairness Act: Has The Party Just Begun?, 80 Tul. L. Rev. 1669 (2006).

Although not quite as entertaining as watching Bret Maverick talk his way out of a tough situation, this article authored by James M. Garner, (Sorry, couldn’t pass it up) provides a summary of commencement rulings, and suggests an alternative to the traditional Rule 15 analysis generally conducted by courts facing the commencement issue.  Garner’s piece breaks down the common contingencies producing a CAFA commencement battle such as amending a complaint to add claims, defendants, or class representative, and gives the reader an idea of the amendments' likely effect by reviewing opinions dealing with the issue. Garner engages in a little Maverick-esque conduct by coming up with his own lingo – he coins the term “Knudsen I Commencements” for any amendment resulting in a post-CAFA commencement date.  He also throws out an alternative to a Rule 15 analysis based on picking up CAFA’s jurisdictional goals to analyze post-CAFA amendments while discarding Rule 15’s notice and prejudice requirements.

Posted By McGlinchey Stafford at 09:38 AM | Comments / Questions (0)

Robert M. Langer, Timothy A. Diemand, Kim E. Rinehart, Class Action Fairness Act of 2005, 41 Ark. Law 18, Winter, 2006.

It seems everyone is trying to get up to speed on the Class Action Fairness Act.  (Of course, the easiest way to do it is to be a regular reader of the CAFA Law Blog.)  This article attempts to do just that for its readers by concisely covering the many provisions of the Act in an almost bullet point fashion.  After a brief introduction to the rationale and impetus for CAFA, the article briefs CAFA’s expansion of federal diversity jurisdiction, CAFA’s modifications to removal of class actions, and the Consumer Class Action Bill of Rights.  Although somewhat abbreviated, the article makes up for this lack of depth by providing at least a sentence on each exception and unique provision. The article concludes by providing its reader “Areas to Watch,” including an often overlooked but soon to be litigated issue, CAFA’s sections regarding the settlement of class actions.

Bottom Line: Good introduction to CAFA, but if you know her already, it's not required reading.

Posted By McGlinchey Stafford at 09:19 AM | Comments / Questions (0)

Charles DeLafuente, Bill Would Let Low Bidder Be Lead Attorney, ABA Journal e Report, Aug. 18, 2006, http://www.abanet.org/journal/ereport/au18auction.html.

How about choosing lead counsel in class actions by having interested firms engage in a competitive bidding process instead of allowing the lead plaintiff to make the selection? Apparently Congress is looking into it. Chief District Court Judge Vaughn R. Walker of the Northern District of California recently testified in front of a House subcommittee in an effort to promote the bill proposed by US Representative Richard Baker, R-La which would allow a court to “employ alternative means in the selection and retention of (class) counsel . . . including a competitive bidding process.”  One opponent to the legislation, (and alumnus of the CAFA Law Blog) Tulane Law Professor Edward Sherman, asserts the bill is unnecessary since the 2003 Amendments to the Federal Rules of Civil Procedure provide courts the discretion to employ a bidding process or other “alternative” method for selecting class counsel.

What do you think? Should judges allow the market to choose class counsel? Do we need a law to specifically allow for such a process or is this legislation unnecessary?

Posted By McGlinchey Stafford at 09:26 AM | Comments / Questions (0)

Coby Warren Logan, Not Fair At All: The Class Action Fairness Act of 2005 Is Based On Flawed Reasoning And Will Harm Both Federal And State Courts, 41 Ark. Law. 10, Winter, 2006.

Cody Warren Logan, a third year law student at the University of Arkansas, makes a bold statement in this article out of the Winter 2006 issue of the Arkansas Lawyer.  Characterizing CAFA as a statute with the potential to severely limit the ability to litigate class action suits in state court, the article asserts that the primary goal of CAFA’s drafters was to “eliminate state courts as a viable forum for multistate class action lawsuits.” The article’s central complaint regarding CAFA is that the legislation “contradicts one of the fundamental premises of our dual court system: that state courts should adjudicate disputes arising under state law.” The article also lodges grievances against CAFA’s use of minimal diversity, and allowing aggregation of claims when calculating the amount in controversy, claiming both allow an unjustified expansion of federal jurisdiction. Fiesty.

Posted By McGlinchey Stafford at 09:20 AM | Comments / Questions (0)

Edward F. Sherman, Class Actions After The Class Action Fairness Act of 2005, 80 Tul. L. Rev. 1593 (2006).

Professor Sherman’s march through CAFA, as part of the Tulane Law Review’s summer symposium entitled Class Actions In The Gulf South And Beyond, takes the reader on a thorough tour of the revolutionary new statute. The article covers CAFA’s provisions affecting federal jurisdiction, the home state and local controversy exceptions, and even touches on the choice of law issues set ablaze by multi-state class actions brought to federal court under CAFA.  The Professor also makes a few predictions – CAFA will cause a reduction in the number of multiple state class actions, and will effectively make federal court the “only game in town.”  Sherman’s torch also leads us through CAFA’s interaction with the recent U.S. Supreme Court case, Exxon Mobil v. Allapattah Services (Editors' Note:  See the CAFA Law Blog analysis of Allapattah Services posted on September 22, 2005), and describes the statute’s notice provisions as “Frankenstein’s Monster” of CAFA.

Bottom Line: Sherman’s article provides a comprehensive review and a fairly strong analysis of CAFA’s long term effects on class action practice.

Posted By McGlinchey Stafford at 09:18 AM | Comments / Questions (0)

Sarah S. Vance, A Primer On The Class Action Fairness Act Of 2005, 80 Tul. L. Rev. 1617 (2006).

Of all the articles that have come across this CAFA Law Blog Editor’s desk/screen since our Founding Editor Anthony Rollo’s article entitled "The Newly Enacted Class Action Fairness Act" introduced the legal world to CAFA in March of 2005, this article authored by United States District Judge Sarah S. Vance is the best primer yet. Included in the Tulane Law Review’s recent symposium, Class Actions in the Gulf South and Beyond, Judge Vance’s article does exactly as she claims in the title, provides a comprehensive briefing of CAFA.  What sets it apart from the others is the Judge’s beautiful use of logic in organizing the article which makes the article a pleasure to read, and ensures the reader gets the big picture instead of getting lost in the corners of the statute.  Judge Vance takes the statute from its Congressional Findings, often overlooked in these articles, introduces CAFA’s basic features, and follows the same path a case would take by covering CAFA’s expanded federal jurisdiction, exceptions, affect on removal, appellate review provisions, and the Act’s settlement provisions. But she’s not done. Judge Vance goes the extra mile by covering the big issues surrounding the interpretation of the statute – commencement and the burden of proof. She also takes a stab at how she thinks CAFA will impact the class action landscape. Who reading this right now wouldn’t want to know what a federal judge thinks about CAFA’s impact on the class action landscape?

Posted By McGlinchey Stafford at 08:35 AM | Comments / Questions (0)

Benjamin G. Shatz & Lara Krieger, Class-Action Statute Fails To Address Appellate Questions, Los Angeles Daily Journal, June 16, 2005, at page 7.

Although this article was published a little over a year ago in the Los Angeles Daily Journal, Mr. Shatz and his comrade Lara Krieger fleshed out in plain language the likely affect of 28 U.S.C. section 1453, CAFA’s appeal provision. Without the guide wires of precedent, the two appeals connoisseurs distilled 1453 down to two main points. First, appeal of a class action remand order is discretionary; and second, CAFA puts the appellant and the court on a relatively short clock. The moving party only has 7 days to request appeal after issuance of the remand order, and the court only has 60 days to rule on an accepted appeal. Of course, numerous court decisions have added some twist and turns to this strict statutory analysis, but the article does a great job of generally explaining section 1453, and pointing out areas where CAFA's drafters did not provide appellant guidance. So if you want to be smarter and better looking, click on the hyperlinked name of the article for your own read.

Posted By McGlinchey Stafford at 08:18 AM | Comments / Questions (0)

Andrew M. Low, Class Action Appeals, 35 Colorado Lawyer 85, June 2006.

In “Class Action Appeals,” the author spins a short story (reminiscent of Prof. James W. McElhaney's litigation articles in the ABA Journal) involving a softball game, a surprise softball talent – although no Roy Hobbs, and a lesson on appealing class action certifications under FRCP 23. This short, entertaining read is a quick diversion, and offers a review of federal appellate court interpretation of newly amended Rule 23(f); particularly, the Seventh Circuit’s recent opinions in In re Bridgestone/Firestone, Inc. Tires Products Liability Litigation, 288 F.3d 1012 (7^th Cir. 2002), and Blair v. Equifax Check Services, Inc., 181 F.3d 832 (7^th cir. 1999).

You may access the article by clicking here.

Posted By McGlinchey Stafford at 08:38 PM | Comments / Questions (0)

Sarah Day Hurley, The Class Action Fairness Act of 2005, Procedural Reforms for Interstate Class Actions, South Carolina Lawyer, July 2005.                      

All of you that practice under the Palmetto and Cresent should take a look at a July 2005 article in the South Carolina Lawyer aptly entitled “The Class Action Fairness Act of 2005, Procedural Reforms for Intestate Class Actions.” The author touches on important jurisdictional changes produced by the statute including CAFA’s expansion of federal jurisdiction over class actions, CAFA’s affect on removal, and CAFA’s exception allowing appeal of remand orders. The article also briefly addresses CAFA’s Consumer Bill of Rights and how CAFA provisions affect mass actions. If you are not familiar with the procedural changes produced by CAFA or simply need a refresher, this just might be worth your time. 

Find it on Westlaw at: 17-JUL S.C. Law. 25

Posted By McGlinchey Stafford at 08:38 PM | Comments / Questions (0)

The CAFA Law Blog is seeking guest commentary from readers regarding the law review article authored by CAFA Law Blog Editors Hunter Twiford, Anthony Rollo and John Rouse first previewed on the CAFA Law Blog (See CAFA Law Blog post on the article dated May 5, 2006). The article, scheduled for publication in the Spring 2006 edition of the Mississippi College Law Review, is entitled “CAFA’s New ‘Minimal Diversity’ Standard For Interstate Class Actions Creates A Presumption That Jurisdiction Exists, With The Burden Of Proof Assigned To The Party Opposing Jurisdiction,” and is available prior to publication in the Mississippi College Law Review to CAFA Law Blog readers through the blog.

The premise: the Class Action Fairness Act’s text, purposes, and legislative history, correctly interpreted, combine to create a presumption in favor of finding that federal jurisdiction exists in interstate class actions under the Minimal Diversity standard, and that the burden of proof is on the party opposing federal jurisdiction, despite the contrary decisions of some federal courts which have addressed the burden of proof question, but have not considered the clear mandates of Section 2 of CAFA as part of their analysis. So, to accommodate the requests of some CAFA Law Blog readers for another reference to the article, here you go.

Posted By McGlinchey Stafford at 05:29 PM | Comments / Questions (0)

CAFA Law Blog Editors Hunter Twiford, Anthony Rollo and John Rouse have written a law review article scheduled for publication in the Spring 2006 edition of the Mississippi College Law Review entitled “CAFA’s New ‘Minimal Diversity’ Standard For Interstate Class Actions Creates A Presumption That Jurisdiction Exists, With The Burden Of Proof Assigned To The Par