Commercial Litigation and Arbitration

New Eleventh Circuit Decision — Class Action Fairness Act

Download associated file: Lowery.pdf 

On Wednesday, the Eleventh Circuit issued its decision in Lowery v. Alabama Power Co., Nos. 06-16324 & 06-325, --- F.3d ---, 2007 WL 1062769 (11th Cir. Apr. 11, 2007). The Lowery panel was not shy in its views on the clarity of CAFA's statutory language--describing its opinion as an effort to "unravel some of the mysteries of CAFA's cryptic text" and to "plot[] the proper route through [a] statutory labyrinth" that includes "convoluted" language and an "opaque, baroque maze of interlocking cross-references."

Judicial trepidity aside, Lowery addresses a number of important issues under CAFA, including:

(1) Can defendants named in an action before CAFA's effective date (February 18, 2005) join in the removal initiated by a defendant named after CAFA's effective date? The Lowery panel said yes.

(2) Who bears the burden of proof of establishing the jurisdictional requirements? The Lowery panel said the removing defendants do.

(3) What standard of proof applies? The Lowery panel said that the standard is a preponderance of the evidence.

(4) What "evidence" should the Court look to? The Lowery panel said that courts should look to the complaint, any other document received by the defendant from the plaintiff, and the notice of removal.

(5) Are removing defendants entitled to seek discovery to establish the propriety of removal? The Lowery panel said no.

A copy of the Lowery decision is linked below.

Doug Pepe

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