International Union of Operating Engineers v. Merck & Co., Inc., No. ATL-L-3015-03, 2005 WL 2205341 (N.J. Super. July 29, 2005).
Perhaps being overly cautious, Judge Carol E. Higbee, of the Superior Court of New Jersey, noted that the Class Action Fairness Act of 2005 would not apply to a nationwide class action filed in New Jersey state court against Merck by users of the drug VIOXX, since CAFA was only intended to apply to actions commenced on or after the date of its enactment, February 18, 2005. In granting the plaintiffs’ motion for class certification, Judge Higbee dispelled all doubt, if any existed, that CAFA would not apply to this class action, which was commenced on October 30, 2003, noting, “Congress specifically narrowed the Class Action Fairness Act to exclude lawsuits that were pending at the time the legislation was enacted regardless of whether class certification had been granted yet.”

The court beat the dying horse with citations to the 10th Circuit’s Pritchett v. Office Depot decision at 420 F.3d 1090 (10th Cir. 2005)(see CAFA Law Blog summary posted on October 23, 2005), that Congress specifically narrowed CAFA to exclude suits pending upon its enactment. Judge Higbee also referred to Pritchett’s discussion of CAFA’s legislative history including the uncannily prophetic statement of a House Representative that “the Class Action Fairness Act would not effect the numerous class actions pending against Merck due to its withdrawal of VIOXX.” Feeling confident that any misgivings about the applicability of CAFA were now sufficiently addressed, Judge Higbee went on to consider and grant the motion for class certification under the United States Supreme Court case of Phillips Petroleum v. Shutts.