Nelson v. BIC USA, Inc., 2008 WL 906049 (S.D. Cal. April 1, 2008)

The plaintiff originally brought her class action suit in a California state court alleging causes of action under the California consumer protection, false advertising, and unfair competition statutes associated with the sale of certain BIC disposable lighters, which the plaintiff claims falsely claim to be “Made in the USA.”   The putative class included all persons who purchased BIC J-26 Maxi “Made in the USA” lighters in California from 2003 to 2007. BIC removed the putative class action to federal court under the Class Action Fairness Act. 

The plaintiff moved to remand the case to state court, pointing to the complaint filed in state court which expressly alleged that no class member individually sought more than $10 in damages and the total amount in controversy to all class members “does not exceed $4,999,900.” 

BIC opposed the remand asserting that the plaintiff’s allegation of damages failed to include any calculation of the value of the other remedies, such as restitution and disgorgement which the plaintiff sought. In addition, BIC provided evidence to show that even if the court were to look at only the alleged $10 maximum in damages per putative class member, the $5 million jurisdictional threshold of CAFA was satisfied. According to sales data, during the class period, BIC sold more than 50 million J-26 Maxi “Made in the USA” lighters to more than 500,000 individuals who would fall into the putative class.

The court, citing the Ninth Circuit’s holding in Lowdermilk v. U.S. Bank Nat’l Ass’n, noted that in situations where a plaintiff has expressly pled an amount of damages under the jurisdictional minimum, a defendant can remove a case to federal court by showing to a legal certainty that the amount in controversy exceeds the statutory minimum. (Editors’ Note: See the CAFA Law Blog analysis of Lowdermilk posted on July 30, 2007).

Despite plaintiff’s argument to the contrary, the court found that it could look beyond the four corners of the complaint to determine whether it had a foundation to exercise removal jurisdiction. The court found that the testimony related to sales data provided an adequate evidentiary basis to support BIC’s representation that the amount of damages claimed per putative class member alone was enough to satisfy the jurisdictional threshold, without attempting to value the plaintiff’s additional claims of restitution, disgorgement of profits and injunctive and other relief.

Accordingly, having found the actual damages alleged per class member to be sufficient to support CAFA removal, the court denied the plaintiff’s motion to remand.