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….

Professor Hoffman

With some luck, we may have seen the last of the commencement problems under CAFA: that is, whether a case was “commenced” before or after the effective date of the new act. As anyone who has been following the case law knows well, this has been a recurrent problem with which many courts and litigants have had to deal since the law went into effect. Unfortunately, most haven’t gotten it right, in my view. Too often, courts rely on rules and doctrines directed to purposes other than answering the statutory inquiry. There are plenty of examples, though the worst culprit surely has been reliance on doctrines and rules governing relation back of amendments. It would be far better, I argue in a paper that’s just come out in the UC Davis Law Review, if courts and litigants stayed focused on the statutory interpretation issue that these cases raise: that is, what did Congress intend when it provided that the statute would apply only to cases “commenced” on or after the law’s effective date.

Why should we still be concerned with commencement issues under CAFA? The cases decided in CAFA’s first years warrant continued and careful consideration, I think, because the issues with which the courts have dealt also regularly arise beyond the class action context, and will continue to do so. As long as Congress continues to pass laws and use “commencement” as the statutory trigger, a judicial role in interpreting to whom and over what subject matter the laws apply will remain. By confusing the inquiry, courts can—and do—often get into trouble. As I conclude in my article:

When the text of a law passed by Congress does not instruct differently, reflexive consideration of service of process requirements imposed for other purposes, or of relation back rules used for measuring the timeliness of an otherwise stale claim, confuses the inquiry before the court. The consequence is that courts end up defining the scope of statutes without regard to the policies that animated their passage. To honor legislative intent and the judicial responsibility to discern it when the text is unclear, it is necessary to recollect that the question — the only relevant question — is to determine what Congress meant by the triggering words it chose. A court that follows [my] three canons of construction is more likely to better keep straight the proper inquiry about which it should be engaged.

For those interested in more, the cite to the law review article is 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  or]. 

I hope this article will be valuable to lawyers and judges working both in and outside the class action context. But if we’re lucky, the CAFA commencement cases may finally have run their course.