By Brian Wolfman
The Second Circuit has just joined a number of other circuits in holding that the party invoking federal jurisdiction under the Class Action Fairness Act -- usually a defendant seeking to remove a class action from state court -- bears the burden of proof on CAFA's basic jurisdictional prerequisites (100 class members, minimal diversity, $5 million in controversy). See Blockbuster, Inc. v. Galeno, No. 05-8019-cv (2d Cir. 12/26/06).
I have whined on this blog on multiple occasions, including here and here, that the courts have failed to point out that the Senate Report on CAFA is not genuine legislative history because it was issued after CAFA's enactment. In Blockbuster, the Second Circuit slammed the defendant's reliance on the Senate Report for a number of reasons and then came close to holding that the Report is not worth the paper that it's written on: "Moreover, the Senate report was issued ten days after the enactment of the CAFA statute, which suggests that its probative value for divining legislative intent is minimal." Right on!
So . . . After placing the burden of proof on the removing defendant, the Second Circuit remanded the case to the district court to make findings on the jurisdictional prerequisites. (In case you're wondering, the plaintiffs in the case claim that Blockbuster's supposed "no late fee" policy was deceptive as a matter of New York statutory and common law.)
Noted Pittsburgh consumer lawyer Mike Malakoff is among the lawyers for the plaintiffs. [Disclosure: I provided a bit of assistance on the appeal.]