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UPDATE: Eleventh Circuit Affirms Lowery Case

By Alan E. Rothman

As the May edition of LJN's Product Liability Law & Strategy went to press, the Eleventh U.S. Circuit Court of Appeals sought to 'unravel some of the mysteries of CAFA's cryptic text' with respect to the 'mass actions' provisions ' which the court characterized as an 'opaque, baroque maze of interlocking cross-references that defy easy interpretation.' Lowery v. Alabama Power Co., __ F. 3d __, 2007 WL 1062769, at *1, *8 (11th Cir. Apr. 11, 2007), affirming Lowery v. Honeywell Int'l Inc., 460 F. Supp. 2d 1288 (N.D. Ala. 2006). In affirming the grant of remand, the Court of Appeals (in dicta) addressed some of the issues presented in our article 'CAFA: Finding a Method to the Madness of 'Mass Actions”:

1) The court observed that reliance on the Supreme Court's decision in Exxon v. Alapattah Servs. Inc., 545 U.S. 546, 125 S. Ct. 2611 (2005) to support the exercise of Supplemental Jurisdiction (28 U.S.C. '1367) over all plaintiffs in a 'mass action' where at least one plaintiff seeks in excess of $75,000, is misplaced. Lowery, 2007 WL 10622769, at *14 n.51; and

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