Yesterday, the U.S. Supreme Court issued its opinion in Dart Cherokee Basin Operating Co., LLC v. Owens, No. 13-719 (slip opinion). Unsurprisingly, the Court held that a notice of removal under the Class Action Fairness Act does not need to attach evidence regarding the amount in controversy. Given that the removal statute requires a notice “containing a short and plain statement of the grounds for removal,” the Court held that the notice “need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” (Slip op. at 7.) Evidence is required only if the plaintiffs file a motion to remand, or the Court requests an evidentiary showing. In reaching this result, the Court also noted that there is no presumption against removal—“no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court.” (Id.) This is all helpful to defendants in obtaining federal jurisdiction in class actions, although I think it is what most lawyers thought the law was before this decision. This will help ameliorate the “fire drill” that defendants sometimes experience when they are sued in a class action and need to develop an estimate of the amount in controversy.

I’m proud to say that I correctly predicted (see my blog post regarding the grant of certiorari in this case) that the Court would hold that a notice of removal does not require evidence. I was dead wrong, however, about the vote. I thought it would be 9-0 when it turned out to be 5-4. But not because there is any indication that any justice concluded that a notice of removal must attach evidence. Rather, as foreshadowed in the oral argument (see my blog post on the oral argument), the split occurred because of a debate over the scope of the Court’s jurisdiction to hear a CAFA case where the Tenth Circuit had denied leave to appeal, and the application of the appropriate standard of review.

The majority opinion was authored by Justice Ginsburg, and joined by Chief Justice Roberts, and Justices Breyer, Alito and Sotomayor. They concluded that the Court had jurisdiction to review the Tenth Circuit’s denial of leave to appeal, that the Tenth Circuit appeared to have denied review based on a conclusion that the district court’s decision was correct (i.e., that a notice of removal must attach evidence), and that the Tenth Circuit had abused its discretion by erring as a matter of law. The majority noted that the dissenters had joined the Court’s unanimous opinion in Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013), which involved the same procedural posture (the court of appeals had denied review), without suggesting any jurisdictional impediment.

Justice Scalia’s dissent, joined by Justices Kennedy and Kagan, and joined by Justice Thomas except for the conclusion, would have dismissed the case as improvidently granted. The dissent concluded that the Tenth Circuit might not have abused its discretion if, for example, it were simply too busy to decide the case within CAFA’s 60-day period for an appellate decision, or the case was a poor vehicle to decide the issue.  The dissenters felt they had an insufficient basis to determine whether there was an abuse of discretion by the court of appeals. As to Knowles, Justice Scalia concluded he made a mistake in overlooking the potential jurisdictional issue.

Justice Thomas concluded that the Court had no jurisdiction whatsoever because an application for permission to appeal in the court of appeals is not a “case” in the court of appeals, within the meaning of 28 U.S.C. § 1254.

As I noted before in discussing the oral argument in this case, it seems unlikely that Congress intended, when it allowed courts of appeals to accept these types of appeals under CAFA, in their discretion, to restrict the Supreme Court’s ability to hear such cases if the court of appeals declined review. Perhaps Congress will be motivated to settle this issue by amending 28 U.S.C. § 1453(c)(1) to make reference to the Supreme Court as well as the courts of appeals. Other interlocutory appeal statutes might also be worthy of similar amendments.

But in the meantime, what can a defendant do where it is faced with a CAFA appeal (or perhaps some other interlocutory appeal, if the same issue applies) in which leave to appeal might be denied by the court of appeals, perhaps without explanation or with little explanation, and four justices of the Supreme Court are likely to be concerned about whether they have proper jurisdiction? One approach might be to petition for certiorari before the court of appeals has rendered its judgment. 28 U.S.C. § 1254 provides that “Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree . . . .” (Emphasis added.) So if you petitioned the Court before the court of appeals rendered judgment, it would seem to clearly have the power to review the district court’s decision. Perhaps the Court could even hold that “early” petition until after the court of appeals has made its decision, and then still have the power to review the district court’s decision, if the Court chose to take that route.

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Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class…

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class actions involving homeowners’ insurance coverage and market conduct/claim-handling practices. He has been prominently involved in high-profile property insurance litigation concerning the September 11th catastrophe and Hurricane Katrina, and Chinese-made drywall. Based in the insurance capital of Hartford, Connecticut, Wystan writes the blog Insurance Class Actions Insider, which was selected by Lexis Nexis as a top insurance blog for 2011.

Wystan grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state. He always had strong interests in history, politics and baseball and his heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox). Wystan says it was his early fascination with Lincoln that drove him to practice law. As a high school senior, he was one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified his interest in law and government. He went on to Bowdoin College, where he wrote for the Bowdoin Orient and majored in government. After Bowdoin, he went on to Columbia Law School. He also interned in the chambers of then-Judge Sonia Sotomayor on the Second Circuit. Wystan graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole.

When Wystan’s not at his desk, flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation he often can be found watching “Dora the Explorer” or reading or playing whiffleball with his young daughter, helping his wife with her business, Option Realty, reading a book about history or politics, or watching the Boston Red Sox.

Read Wystan’s bio.