Thomas E. Willging & Shannon R. Wheatman, Attorney Choice of Forum In Class Action Litigation: What Difference Does it Make? 81 Notre Dame L. Rev. 591 (Jan. 2006).

Is there a better way to discuss CAFA implications than through movie analogies? Of course not. Why not throw in an analogy to the blockbuster A Few Good Men


If you think about it, Tom Cruise and Demi Moore (Kevin Pollak too) had it pretty easy. Sure, their characters were defending two soldiers accused of murder, but they did receive some benefits. They took a trip to Guantanamo to visit Colonel Nathan Jessep; they added yet another movie to their resume that qualifies as a link in the six degrees of Kevin Bacon game; they were party to one of the most famous movie quotes of all time! (Ranked # 29 by the American Film Institute); and they weren’t faced with the gut-wrenching decision of forum selection for class actions. Do we file in Federal or state court? Do we remove? Do we remand?

According to an article penned by Thomas Willging and Shannon Wheatman, a significant driving force behind the passage of the CAFA was the “perception” that federal forums were superior at handling class actions compared to state forums. What perceptions you ask? Those that say that state courts were more favorable to plaintiffs while federal courts were more favorable to defendants. However, these perceptions were just that, unsubstantiated theories not backed by empirical data. This article presents empirical evidence that compares lawyers’ perceptions to real results.

What did the data show? Are you sitting? Are you sure you are ready? What is it that you want, really? The truth? (Wow, what a softball!) The truth is that the perceptions often did not match reality, but why take our word for it. Why don’t you ask Colonel Jessep what the truth is?

Colonel Jessep, can you give our readers the truth? And remember Colonel, you are under oath.

(Jessep): They can’t handle the truth! You see CAFA reader, we live in a world that has courts, and those courts are presided over by people with law degrees and robes. Whose gonna do that presiding over? You? Those courts, the state and Federal ones, have more responsibility and impartiality to class actions than you or any other lawyer could possibly fathom, and the data shows that. Plaintiffs weep when their cases are removed, and they curse the Federal courts. That some cases are removed to Federal court, while tragic in the eyes of the plaintiff, probably saves lives.

(CAFA moderator): Uhh, Colonel!

(Jessep): And that some cases are remanded or never meet the removal criteria, while grotesque and incomprehensible to defense lawyers, probably saves lives. 

(CAFA moderator): Colonel?

(Jessep): I know deep down in places you don’t talk about at parties, you don’t want to defend a class in state court or prosecute one in Federal court, but you may want to cross that wall, you may need to cross that wall. This article shows that courts, both state and federal, evenly apply words like code, numerosity, and jurisdiction.

I have neither the time nor the inclination to explain the rest of this data or the methodology through which it was reached to readers who rise and sleep under the blanket of CAFA knowledge that I provide, then question the manner in which I provide it. I prefer you readers say thank you, and went on your way, Otherwise, I suggest you pick up a weapon, and stand to post …

(CAFA moderator): Whoa! Whoa! Whoa, Colonel Jessep! That’s all for now. Thanks for imparting the info from the article. And CAFA readers, please check out the article. There is plenty of interesting stats throughout.