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Saturday, February 24, 2007



I'll just quibble back at ya. I agree with the court in Serrano that the 100-person requirement is a jurisdictional prerequisite. If you don't have 100 people, the court has no power to hear the case. You could call it an "exception," just like you could the (d)(4)-type class action an "exception." My point is that if the court lacks power to hear the case - - whatever terminology one uses to describe that lack of power - - then I don't see why the burden of proof should be allocated differently from how it is ordinarily allocated.

I agree with Charles that the statute is hard to understand at points and even redundant in a couple spots. What is interesting is that, typically, statutes with have such problems are drafted hastily. This statute was around for years before it was enacted.

Charles Delbaum

RE: Serrano v. 100 Connect, Inc., No. 06-17366 (Feb. 22, 2007)-- It's clear that the statute was not carefully drafted. Otherwise, it would not provide in (d)(5)(B) that, if there are less than 100 in the class, (d)(4)'s provision about declining to exercise jurisdiction does not apply. Completely unnecessary.

While, like Brian, I am not persuaded by Serrano, the only point on which I would quibble with his analysis is that I think that having fewer than 100 in the class is an exception to jurisdiction because it is in(d)(5)'s list of jurisdictional provisions that "do not apply" , rather than 100 or more being a prerequisite to jurisdiction, even though it sensibly should have been structured as a prerequisite. This is different than the $5 million requirement, and so at least arguably not a basic jurisdictional requirement.

Charles Delbaum
National Consumer Law Center

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