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'Mass Actions': Eleventh Circuit Attempts to Find a Method to the Madness

By Alan E. Rothman

In the May issue of PLLS, I identified a number of the many unanswered questions regarding CAFA's 'mass action' provisions, codified at 28 U.S.C. '1332(d)(11). See Rothman, 'CAFA: Finding a Method to the Madness of 'Mass Actions,” Product Liability Law & Strategy (May 2007) ('Mass Action Part I').

As that issue was going 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 action' provisions ' which the court (generously) 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). (The district court decision is cited at page 6 of Mass Action Part I.) In affirming the grant of remand in an action arising from the alleged discharge of pollutants, the court of appeals set forth the jurisdictional framework for a 'mass action.' Specifically, the court identified four jurisdictional threshold prerequisites for a 'mass action' removal: 1) numerosity ' 100 or more plaintiffs; 2) diversity ' any plaintiff is a citizen of a state different from that of any defendant ('minimal diversity'); 3) commonality ' plaintiffs' claims share common questions of law or fact; and 4) amount in controversy ' the aggregate value of plaintiffs' claims exceeds $5 million. Lowery, 2007 WL 1062769, at *10.

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