Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., No.” 2:05-CV-292 (M.D. Ala. April 14, 2006).

In the continuing saga occurring in Judge Mark E. Fuller’s Middle District of Alabama courtroom, Aetna has been trying to reserve a permanent place on the court’s dance card through the Class Action Fairness Act since December of 2005, and has finally succeeded. (Editors’ Note: See the CAFA Law Blog summary posted on March 14, 2006 regarding Aetna’s original request for a dance). The dispute between a group of pharmacies and Aetna over reimbursements for brand-name prescriptions first came before Judge Fuller December 14, 2005, when the judge determined the claims of the class were not preempted by ERISA, but that the plaintiffs’ delay in filing summonses deferred the action’s commencement date to post-CAFA, thereby potentially allowing CAFA to apply. However, not wanting to dance with just anyone, in his initial opinion Judge Fuller reserved judgment as to whether CAFA allowed removal concluding the court did not have sufficient information to make a finding as the whether CAFA’s amount in controversy requirement was satisfied. He ordered the parties to brief the issue, specifically focusing them on whether the party attempting to avoid federal jurisdiction or the party attempting to invoke federal jurisdiction under CAFA carries the burden of proof.

Judge Fuller began by establishing that typically “the party asserting federal jurisdiction bears the burden of demonstrating that jurisdiction exist,” and that burden must be proven by a preponderance of the evidence. He next acknowledged that some courts have concluded CAFA shifts the burden to the plaintiff to prove the amount in controversy has not been satisfied, and thus jurisdiction does not exist.  (Editors’ Note:  See CAFA Law Blog’s summary of Yeroushalami v. Blockbuster, Inc. posted Nov. 28, 2005). Considering the Senate Committee Report relied on by these courts in determining CAFA shifted the burden, Fuller decline to accept this authority as persuasive, concluding “[w]hile courts may look to legislative history in interpreting ambiguous statutory language, this particular report does not correspond to any new statutory language.” Relying on the reasoning of Brill, and also declaring that applicable 11th Circuit precedent was consistent with the 7th Circuit’s holding in Brill, Fuller decided to apply the “traditional” view and assigned the burden of proof to Aetna. (Editors’ Note:  See CAFA Law Blog’s summary of the 7th Circuit’s opinion in Brill v. Countrywide Home Loans, Inc. posted Nov. 2, 2005).

But Aetna still prevailed, and was awarded a dance to its favorite tune by Otis Day and the Knights. The insurance company presented evidence through the affidavits of an Aetna Business Systems Manager and a pharmacoeconomics expert (apparently there’s an expert for everything) that “the amount in controversy would be approximately $7,195,000 just for 2003 through 2005.” Based on this evidence, Fuller abruptly jotted down Aetna on his card since the defendant had satisfied its burden of demonstrating that, more likely than not, more than $5 million was in controversy. Because Aetna previously established the action commenced post-CAFA, the court denied the plaintiffs’ motion to remand and extended an inviting hand to Aetna.