Commercial Litigation and Arbitration

Effective 12/1/09, CAFA Typo re: Appeal Timing Fixed

28 U.S.C. § 1453 — the removal provision of the Class Action Fairness Act — confers a right of appeal of any remand order, providing that the defense must appeal “not less than 7 days after entry of the [remand] order.” Every Circuit to consider this language has ruled it is a typo — that not “less than” should read “not more than” because it would otherwise contemplate appeals without any temporal cutoff. In coordination with the time computation amendments to the Federal Rules of Civil, Criminal, Bankruptcy and Appellate Procedure that take effect on December 1, 2009, Congress has amended several statutes, and this is one of them. On that date, “not less than 7 days” is stricken and “not more than 10 days” substituted. (7 becomes 10 under the new time-computation approach that counts all days, no longer disregarding intervening weekends and holidays.)

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