Tompkins v. Basic Research, LLC, 2008 WL 1808316 (E.D. Cal. 2008).
For only $39.99, you can lose all of the weight you want without diet or exercise. Sound too good to be true? Probably because it is, but for the makers of Akavar, CAFA saved the day and it will at least get to trim down the plaintiff’s claims in federal court.
Believe it or not, the editors of the CAFA Law Blog had a tough time coming up with something creative for an amount in controversy case involving a bunch of people p.o.’d because they didn’t lose weight by just taking the magic pill…nah, just kidding, we looked to our favorite source, songs for the sixties with hidden (or not so hidden) drug references. We give you White Rabbit, by Jefferson Airplane, adapted by CAFA Law Blog.
One pill makes you larger and one pill makes you small and the one that mother gives you don’t do anything at all. Go ask Alice when she’s ten feet tall…
Unfortunately for the plaintiffs in Tompkins, the one pill didn’t make them small. Because the inventors and manufacturers advertised that the drug Akavar 20/50 was foolproof and required no exercise or diet for success, the plaintiffs did what plaintiffs do, they asked Alice, or the judge in California, by filing suit.
And if you go chasing rabbits and you know you’re going to fall; tell ‘em a hookah smoking caterpillar has given you the call; call Alice, when she was just small…
Call Alice they did, the defendants that is. Realizing the plaintiffs where merely chasing rabbits trying to recover in state court, the defendants removed under that glorious banner we carry, CAFA! The defendants immediately satisfied the first two elements of CAFA removal – 100 or more members in the proposed class (plaintiffs alleged “thousands of persons”) and (2) minimal diversity (there was actually complete diversity). The one problem – amount in controversy.
When the men on the chess board get up and tell you where to go; and you’ve just had some kind of mushroom and your mind is moving low; go ask Alice, I think she’ll know…
This time, Alice is Senior District Judge Lawrence Karlton of the Eastern District of California. He reminded the defendants that they bear the burden of demonstrating that the amount in controversy for CAFA removal, $5 million, was met. Judge Karlton was quick to point out that the plaintiffs claim damages less than $75,000.00 each, which could mean anywhere from $1 to $75,000.00 so the pleading could not be relied on. Instead, the defendants were taken to task and reminded that Lowdermilk (Editors’ Note: See the CAFA Law Blog analysis of Lowdermilk posted on July 30, 2007) required summary judgment type evidence relevant to the amount in controversy at the time of removal.
When logic and proportion have fallen sloppy dead; and the White Knight is talking backwards and the Red Queen’s “off with her head!” remember what the door man said: “Feed your head… feed your head…feed your head…”
Fortunately for the defendants, logic did not fall sloppy head. Judge Karlton determined that the defendants’ evidence regarding sales, the plaintiff’s claim for a “common fund,” and attorney’s fees would equal $4,500,000.00. The judge next considered the cost of compliance with the injunction sought. Based on the amount of Akavar on store shelves and necessary corrective advertising, nationwide compliance would costs $20 million. The court concluded that it was more likely than not that the $5 million dollar amount in controversy was met.
Feed your head…feed your head…feed your head…