Michael Hoenig, Atkins Diet Alleged Harm; CAFA’s Jurisdictional Demands, 1/08/2007 N.Y.L.J. 3, Volume 237 (2007).

In the Products Liability section of January’s issue of the New York Law Journal, Michael Hoenig reviews two interesting new opinions. In Gorran v. Atkins, Judge Chin of the Southern District of New York, considered whether a plaintiff claiming he suffered adverse consequences from following the Atkins Diet could recover against the Atkins Empire on claims of products liability, negligent misrepresentation, and deceptive conduct. The result? No soup for the plaintiff – although word is he is currently binging on carbs. Judge Chin dismissed the plaintiff’s action for failure to state a claim. The heirs of Dr. Atkins can enjoy their bacon cheeseburgers in peace.

The other new release was a case from the Second Circuit considering whether a defendant removing under CAFA bears the burden of establishing jurisdiction or whether the plaintiff must demonstrate federal jurisdiction doesn’t exist. In Blockbuster v. Galeno, Blockbuster removed a suit filed against it for its No Late Fees program to federal court alleging jurisdiction under CAFA. (Editors’ Note:  See the CAFA Law Blog analysis of Blockbuster posted on January 25, 2006.  Also, see our critique of Blockbuster posted on January 26, 2007). 

After the plaintiff’s motion to remand was denied, the plaintiff appealed to the Second Circuit Court of Appeals. Blockbuster argued that CAFA altered the tradition diversity jurisdiction burden of proof by placing a burden to demonstrate jurisdiction does not exist on the party attempting to stay out of federal court. Blockbuster pointed to CAFA’s legislative history as an indication of Congress’s intent to shift the jurisdictional burden to the party opposing federal jurisdiction. However, the Second Circuit disagreed with Blockbuster, pointing to the lack of a clear textual directive in the statute to shift the burden of proof, putting the court in lock step with every other Circuit Court to address the issue.

For a different take on who should shoulder CAFA’s jurisdictional burden of proof, check out the recently published article drafted by three of our own leading men:  H. Hunter Twiford, III, Anthony Rollo & John T. Rouse, CAFA’s New "Minimal Diversity" Standard For Interstate Class Actions Creates A Presumption That Jurisdiction Exists, With The Burden of Proof Assigned To The Party Opposing Jurisdiction, 25 Miss. C. L. Rev. 7 (2005).

Bottom Line: Good reading material for a 10 minute coffee break – and you don’t have to return it within 2 days or pay a late fee.