Posts Tagged ‘CAFA’

Anyone who has been on the receiving end of unsolicited communications from lawyers who don’t represent you knows that such missive can sometimes be a frightening thing. But not always. I am pleased to pass along a response by two Jones Day lawyers to arguments I set forth in a blog post about their amicus curiae brief in Standard Fire Insurance Co. v. Knowles a couple months ago (as well as to related arguments set forth in an amicus curiae brief opposing theirs). Their response does not change my assessment of the merits of their position, which I still find unpersuasive. But it’s a shrewd move on their part to continue the conversation. The first challenge of amicus curiae advocacy of the sort in which they are engaged is to get one’s arguments considered. These lawyers accomplished this in the first instance through a write-up in Alison Frankel’s “On the Case” column. Were it not for the fortuity of having a link to my post lingering at the top of Howard Bashman’s “How Appealing” for a time, I doubt many would have noticed my arguments about the position in their brief. But I suppose that is how the Internet works. In any event, I am happy to satisfy the Jones Days lawyers’ request to post this response. While I do not think that their position ought to prevail in Standard Fire, their firm is on the right side of the HHS Mandate litigation and I am grateful for that. Their full response is below. (more…)


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I posted yesterday about a fascinating jurisdictional argument about CAFA that appears in an amicus curiae brief filed by Jones Day on behalf of the National Association of Manufacturers in Standard Fire v. Knowles. I continue to think that the brief represents strong lawyering. But having considered the details of the argument in some depth, I am unpersuaded. In what follows, I try to “show my work” leading up to this (provisional) conclusion. The argument is a bit rough and the language is unpolished. I should also caution that I never paid careful attention to the relevant provision of CAFA until yesterday. Nevertheless, I have found the question of how to interpret 28 U.S.C. § 1453 to be very interesting and have thus far enjoyed trying to work through it. So, here goes . . .


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Alison Frankel wrote an overview yesterday of a fascinating jurisdictional argument arising out of CAFA in the upcoming Supreme Court case of Standard Fire v. Knowles. The argument appears in an amicus brief filed by Jones Day on behalf of the National Association of Manufacturers. Frankel credits Jeffrey Mandell of Jones Day with developing the argument.

The basic claim is that a CAFA provision that relaxes prior limits on removal (Section 5 of CAFA, at 28 U.S.C. § 1453) provides a statutory basis for federal jurisdiction over class actions removed from state court, regardless of whether those class actions satisfy all the requirements for original jurisdiction in the CAFA provision that expands original jurisdiction (Section 4 of CAFA, at 28 U.S.C. § 1332(d)).

To evaluate the argument, one needs to dive into the details. For example, § 1453 contains no mention of either complete diversity or minimal diversity. Is the provision best read it as a broad jurisdictional grant that is unconstitutional whenever there is no minimal diversity?  I hope to explore this and other issues in the future, for a first review of the brief indicates that the argument is worth pursuing. Kudos to Mandell and the lawyers at Jones Day.

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John O’Brien reported in Legal Newsline earlier this week that the Fourth Circuit granted the motion of several pharmacy chains to stay its decision in West Virginia v. CVS Pharmacy pending a petition for certiorari. In the underlying case, the Fourth Circuit held, by a 2-1 vote, that a parens patriae action brought by West Virginia’s Attorney General (represented by two private law firms) was not removable under the Class Action Fairness Act (“CAFA”). Judge Niemeyer wrote the opinion, joined by Judge Davis. Judge Gilman (CA6, sitting by designation) dissented. The decision affirms Judge Copenhaver (SDWV).

The issue of when a federal court can look through the form of a parens patriae case to determine that the case actually is a removable “class action” or “mass action” under CAFA may be ripe for review by the Supreme Court, in this or some other case. For a decision that, on a broad level, conflicts with the Fourth Circuit’s decision, see the Fifth Circuit’s split decision in Louisiana v. Allstate Ins. Co., 536 F.3d 418 (2008). (I use the qualifier “on a broad level” because the Fifth Circuit decision held that the removed action qualified as a “mass action” under CAFA whereas the issue in the Fourth Circuit case is whether the removed action qualified as a “class action.” Notwithstanding this difference, the cases have many similarities.)

Additional cases and analysis may be found in an excellent student note by Dwight R. Carswell in Volume 78 of the University of Chicago Law Review.

Prediction: If and when the Supreme Court addresses this issue, the Court’s decision will be in line with the conclusion reached by the Fourth Circuit and Mr. Carswell.

(N.B. The title of the post comes from the concluding paragraph of Judge Gilman’s dissent: “In sum, there is a saying that if something looks like a duck, walks like a duck, and quacks like a duck, it is probably a duck. To my mind this case “quacks” much more like a CAFA class action than a parens patriae case. I would therefore reverse the judgment of the district court and allow this case to proceed in federal court.”)

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