Duane Morris Takeaway: This week’s episode of the Class Action Weekly Wire features Duane Morris partners Jennifer Riley and Alex Karasik and associate Derek Franklin with their discussion of key rulings involving the Class Action Fairness Act (“CAFA”).
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Episode Transcript
Jennifer Riley: Thank you for being here again for the next episode of our weekly podcast the Class Action Weekly Wire. I’m Jennifer Riley partner at Duane Morris and joining me today are Alex Karasik and Derek Franklin. Thank you both guys for being on the podcast.
Alex Karasik: Great to be here, Jen. Thank you.
Derek Franklin: Thanks for having me, Jen.
Jennifer: Today we wanted to discuss trends and important developments in the area of the Class Action Fairness Act, or the CAFA. Alex, can you tell our listeners a little bit about the CAFA before we get into the latest developments?
Alex: Absolutely. Jen. The CAFA is a staple of class action litigation. It was signed into law by George W. Bush, on February 18, 2005. The CAFA expands federal subject-matter jurisdiction over significant class action lawsuits and mass actions in the United States. Functionally, the CAFA provides a mechanism for defendants to remove class actions from state courts to federal courts. So, as a result, CAFA impacts form selection strategies in the class action litigation space.
Derek: Also, to add to Alex, the CAFA does more than facilitate the removal of class actions from state court to federal court. It also regulates the selection of class counsel, toughen certain pleading standards, tightens control over the range of attorneys’ fees that may be awarded in class action settlements, it facilitates the appeals of class certification orders, and it regulates the settlement process in class action settlements.
Jennifer: Thanks so much for that background, guys. Derek, can you talk a bit more about the impact of CAFA on class action litigation?
Derek: Yeah, CAFA has played a major role in large bet the company class actions. The plaintiffs’ class action bar has traditionally maintained success in achieving class certification in state courts, particularly those with locally elected judges who may be hostile toward out-of-state defendants. Prior to the implementation of the CAFA, in order for a federal court to have maintained jurisdiction, there needed to be a monetary threshold of $75,000 met by every plaintiff in the case, and all named plaintiffs in a class action had to be citizens of states differing from those of all defendants. Now under the CAFA, jurisdictional requirements are much less restrictive, and thus more difficult for the plaintiffs’ bar to establish that the action should remain in state court.
Jennifer: Alex, what types of class action litigation, would you say, are most affected by the CAFA?
Alex: Great question, Jen. Class actions filed under federal statute, such as the FLSA, Title VII, or ERISA, are almost exclusively filed in federal court. So, the CAFA has most significantly impacted state law wage and hour claims and related state law type class action claims in employee-friendly states, such as California. The plaintiffs’ class action bar notoriously pursues wage and hour claims in state courts. It tends to be a more favorable forum for plaintiffs in certain areas. The Second Circuit over time became known as the federal circuit where securities law became the most developed. However, the Ninth Circuit became a circuit where more rulings under CAFA were made than any other circuit in the federal system. So, we tend to see various wage and hour and other potential consumer claims filed in state court, and therefore removed under the CAFA.
Jennifer: Were there any key CAFA rulings in 2023?
Alex: It doesn’t happen every year – but in 2023, in fact, courts and all of the federal circuits adjudicated jurisdictional issues based on the CAFA. Beyond the traditional wage and hour context, the CAFA rulings come in a variety of shapes, form, and sizes. Some of those came under the Illinois Biometric Information Privacy Act, which the three of us know very well, being located here in Chicago, Illinois. Other claims involve breaches of consumer product warranties, for instance, under the Magnum-Moss Warranty Act, so CAFA claims can really impact a wide variety of different types of causes of action.
Derek: In particular, the Third Circuit ruled on a breach of warranty case in Rowland, et al. v. Bissell Homecare, Inc., which involved a consolidated appeal concerning four putative class actions filed in state court, alleging violations of the MMWA. The defendants removed those cases pursuant to the CAFA and the plaintiffs filed motions to remand which the district court granted on appeal. The Third Circuit affirmed the District Court’s rulings under the MMWA. The amount controversy must be at least $50,000, and, if it’s a class action, it must have at least 100 named plaintiffs. The Third Circuit opined that in imposing additional requirements for federal jurisdiction, that Congress manifested an intent to restrict access to federal court for MMWA claims. The Third Circuit determined that at a minimum, the requirement that a class action name at least 100 plaintiffs for federal jurisdiction under the MMWA was not satisfied because each complaint at issue named only one plaintiff. The Third Circuit also reasoned that the MMWA’s stringent jurisdictional requirements were irreconcilable with the CAFA because they have differing requirements for how many plaintiffs must be named in a class action that can be brought in federal court, i.e., the CAFA requires only one plaintiff, and the MMWA requires at least 100 plaintiffs. The Third Circuit, therefore, concluded that applying the CAFA in this situation would render the MMWA’s named plaintiff requirement meaningless.
Jennifer: Alex, with the explosive amount of privacy class action litigation recently, can you tell us a bit more about the BIPA ruling in particular that you mentioned earlier?
Alex: Yeah, Jen, there was a really interesting ruling in the Northern District of Illinois in a case called Halim, et al. v. Charlotte Tilbury Beauty, Inc. There the plaintiff filed a putative class action in Illinois state court against the defendants, a makeup and cosmetic company and its parent corporation, alleging violation of the BIPA. It wasn’t a fingerprint scan BIPA case, but rather, this is one where, the defendants allegedly unlawfully collected facial geometry when the plaintiff used the virtual try-on software to superimpose the defendant’s makeup products on the plaintiff’s face. The defendants removed the case to federal court, and the plaintiffs thereafter sought to remand. The court granted plaintiffs’ motion to remand the action to state court because the defendants did not satisfy the $5 million amount-in-controversy requirement. The defendants had argued in removing the case, that they satisfied the requirement through their calculation of a $12 million dollar amount-in-controversy calculation for the BIPA. They claim there was six violations of the BIPA for each putative class member, times 100 putative class members, times two face scans per class member, times $5,000 per violation – which is the statutory amount for a reckless violation – times two defendants. Yeah, that’s a lot of math. And using all this math, defendant came up with an 8-figure number that they anticipated would be the damages exposure. Court rejected this calculation, saying, it’s too speculative and unreasonable to satisfy the defendant’s burden, and therefore, because of that, the court remanded this case back to Illinois state court.
Jennifer: What should corporate counsel and employers be on the lookout for in 2024?
Alex: We anticipate, there will be continued arguments over removal due to jurisdictional issues. The plaintiffs’ bar is crafty and constantly evolving their strategies for arguing against litigating cases in federal court. Many times state courts are more favorable forum, and I don’t think that trend will change in the coming year. What remains to be seen is how effective these strategies will be, and granting motions through remand especially as many of the major class action statutes, such as the BIPA, might evolve at the legislative level.
Jennifer: Well said. Thank you so much for all of this great analysis. Derek and Alex, thank you for being here with me today, and listeners, thank you so much for tuning in.
Alex: Thanks for having me, Jen, and thank you to all of our listeners. We appreciate you tuning in today as well.
Derek: Thanks, everyone.