Commercial Litigation and Arbitration

Class Action Fairness Act — Burden of Proof on Exceptions

The plaintiffs in the putative class action styled McMorris v. TJX Cos., 2007 U.S. Dist. LEXIS 47458 (D. Mass. June 26, 2007), filed a state court complaint on behalf of ‛[r]esidents of Massachusetts who made purchases and paid by credit or debit card or check or who made a return at one or more Marshalls, T.J. Maxx, HomeGoods, or A.J. Wright stores in the United States in 2003 or from May to December 2006.“ The defendants removed under CAFA. On their remand motion, plaintiffs argued that the class by definition satisfied the requirement in the home state exception, as everyone was a citizen of Massachusetts. But the complaint did not allege citizenship, only ‛residen[cy].“ Therefore, as Chief Judge William Young pointed out, ‛the class may include foreign citizens who resided in Massachusetts during that period and who made purchases at TJX.“

The ‛residency“ faux pas, however, was not determinative. The McMorris Court concluded that, even assuming that citizenship had been properly alleged, the plaintiffs had failed to shoulder their burden of proving the actual citizenship of class members: ‛This Court rules that such a bare assertion cannot sustain the burden of proof.“ Chief Judge Young relied on a series of decisions noting, among other things, that, that when a proposed class period spans several years, it is speculative to conclude putative class members remained citizens of the state. Held, remand motion denied.

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