Hey guys, we found another law review article while we were out scouring the internet for CAFA goodies. The title of this one is Protecting Federalism Interests after the Class Action Fairness Act of 2005: A Response to Professor Vairo by Heather Scribner published in the Winter 2005 issue of the Wayne Law Review. 

Continue Reading The Class Action Fairness Act is Constitutional…So Says This Wayne Law Review Article.

Class Action Fairness Act 2005 – Potential Pitfalls for Defendants by Andrew J. McGuinness and Richard Gottlieb, Andrew’s Class Action Litigation Reporter, Volume 13, No. 9 Andrew’s Class Action Litig. Rep. 16. (October, 2006).

Finally, some practical application in all of these articles. Authors McGuinness and Gottlieb published an article in Andrew’s Class Action Litigation Reporter giving us a few practice pointers. And pretty good ones too.  Although these pointers are drafted from the perspective of the defendants, those readers who represent plaintiffs should be able to figure out how to make them work for you too.

Continue Reading General George S. Patton (or was it George C. Scott) Said, “You Must Do Your Damdest and Win.” Here are Some Good Practice Pointers on How to Win Your CAFA Case!

Robert E. Bartkus, Defendants Removal Burden, New Jersey Law Journal (Feb. 19, 2007).

On February 19, 2007, Robert E. Bartkus, published a short article in the New Jersey Law Journal, regarding the burden of proof for removal cases under the new provisions of CAFA. Bartkus cites heavily the Third Circuit case of Morgan v. Gay and the Second Circuit case of Blockbuster v. Galeno throughout the article. Bartkus states that in recent cases where defendants have removed actions to federal court on the basis of CAFA, they have attempted to change the traditional rule that the party asserting federal subject matter jurisdiction has the burden of proving jurisdiction, with no success. (Editors’ Note: See the CAFA Law Blog analysis of Blockbuster posted on January 24, 2007 along with our analysis of its holding posted on January 26, 2007. As for the three Morgan cases, the district court opinion was analyzed on October 24, 2006, the first Third Circuit opinion was analyzed on December 7, 2006, and the second Third Circuit opinion was analyzed on January 19, 2007. You avid readers already know our position on this issue.  But just in case you don’t, see our law review article on the subject). 

Continue Reading This Burden of Proof Issue is Getting Some Press, and Not Just From the CAFA Law Blog.

The opportunity to curl up with an entire law review symposium on CAFA causes us to start humming the music to Will Smith’s Gettin’ Jiggy Wit It.  You don’t have to admit it, but you know we know you feel the same way too.  The Loyola of Los Angeles Law Review has published an issue containing five articles all about CAFA. The title of their new issue is Developments in the Law: The Class Action Fairness Act of 2005. It is Volume 39 ,No. 3 published in September of 2006.

The Foreward is by Georgene M. Vairo. The articles are:

Removal, Remand, and Other Procedural Issues Under the Class Action Fairness Act of 2005 by Lauren D. Fredricks

Plaintiffs’ Paradise Lost: Diversity of Citizenship and Amount in Controversy Under the Class Action Fairness Act of 2005 by Cameron Fredman

Once More Into the Breach, Dear Friends: the Case for Congressional Revision of the Mass Actions Provisions in the Class Action Fairness Act of 2005 by S. Amy Spencer

New Rules for Class-Action Settlements: the Consumer Class Action Bill of Rights by Jennifer Gibson

The Class Action Fairness Act of 2005: a First Year Retrospective Review by Lonny Sheinkopf Hoffman.  (Editors’ Note:  Professor Lonny Hoffman is one of favorite authors on CAFA issues.  See the CAFA Law Blog  analysis of his recent law review article on commencement issues and his guest post on the CAFA Law Blog on commencement issues.)

The great feature about this book is that all of the articles are available on-line in full text version. We know you can’t wait to give these a read. Here’s the link to the online table of contents.

Fern P. O’Brian & Joshua I. Kaplan, Analysis & Perspectives—The Class Action Fairness Act of 2005: Where Have We Been and Where Do We Go From Here?, Class Action Litigation Reporter Vol. 8, No. 4.

For today’s reading pleasure, we provide you with another CAFA primer and overview. The read, eight pages of CAFA glory, runs you through CAFA at a blistering pace (kind of like a tour bus driver whizzing past the Grand Canyon at 100 miles per hour) from beginning to end, pointing out all the hot spots along the way.  It does its job, just don’t expect to take over the world afterward. 

The article isn’t all a retread, though.  It does provide some perspective on the future of the Act, such as a prediction that the plaintiffs’ bar will start originating class actions in federal court if and when class action reform fully permeates state procedural laws. The predicted result—to make the defendants fight (and carry the burden?) to get back to state court where it’s nice and safe. 

What does it all mean? A good read for priming yourself on CAFA’s basic concepts and trends; we’re just not convinced that defendants will be clamoring their way to state court anytime soon.

Timothy Kerr, “Cleaning Up One Mess to Create Another: Duplicative Class Actions, Federal Courts’ Injunctive Power, and the Class Action Fairness Act of 2005,” 29 Hamline L. Rev. 218 (Spr. 2006).

Timothy Kerr has some pointed criticism for the Class Action Fairness Act of 2005. “Ultimately, I argue that the Class Action Fairness Act will have undesirable effects that outweigh its potential as a partial solution to the specific problems of duplicative class actions,” he declares in the opening paragraph of his scholarly piece about the interrelationship between CAFA and the judiciary’s ability to tackle problems associated with duplicative litigation.

Kerr endeavors to outline the problems posed for the federal bench by duplicative class actions, and outlines particular concerns generated by Rule 23 and the Anti-Injunction Act. He addresses the tension between the Anti-Injunction Act and the federal abstention doctrine. Finally, he offers his suggested prescriptions for Congressional reforms that might allow state and federal actions to maintain parallel or sequential tracks. CAFA’s expansion of federal diversity jurisdiction, says Kerr, represents a “disproportionate” Congressional response to problems posed by duplicative actions. Kerr argues that “Congress should not focus on original diversity or removal jurisdiction, but should focus on the amendments to the Anti-Injunction Act or the Rules Enabling Act to allow the courts and rule-makers to respond in the most effective manner.”