Class Action Removal Standards in Flux

Effective Litigation Strategies for Plaintiff and Defense Counsel

Third Circuit provides new guidance on standards for removal under CAFA

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, June 16, 2009

or call 1-800-926-7926
Program Materials

This seminar will examine the federal Circuit Courts’ varying standards for removal under the Class Action Fairness Act (CAFA) and the impact on future cases, discuss strategies for defense counsel for obtaining removal, and outline tactics plaintiffs’ counsel can employ for maneuvering post-removal.


On March 26, 2009, the Third Circuit issued a precedent-setting opinion on the standard for removal from federal to state court under the Class Action Fairness Act (CAFA). The ruling addressed two separate issues of first impression under CAFA’s local controversy exception.

The recent Third Circuit decision is one of many in recent years interpreting standards for removal under CAFA. There is currently a circuit split regarding the evidence required in a CAFA removal action to show that the “amount in controversy” standard has been satisfied.

The Third Circuit applied the "legal certainty" standard in two cases in 2006 and 2007, diverging from at least five other circuit courts that apply the "preponderance of the evidence" standard. The Eleventh Circuit requires "an unambiguous statement,” yet another standard.

Listen as our panel of class action attorneys examines the varying standards for removal in the various circuit courts and reviews the impact of these rulings on future litigation. The panel will also discuss strategies for defense counsel for obtaining removal and offer their perspectives on tactics for plaintiffs’ counsel to maneuver post-removal.



  1. Who has burden of proving jurisdiction?
  2. Effect of post-CAFA amendment to pre-CAFA pleading
  3. “Amount in controversy” standards
    1. Abrego Abrego v. Dow Chemical Co. (9th Cir. 2006)
    2. Lowery v. Alabama Power Co. (11th Cir. 2007)
    3. Frederico v. Home Depot (3d Cir. 2007)
    4. Morgan v. Gay (3d Cir. 2006)
    5. Blockbuster v. Galeno (2d Cir. 2006)
  4. Exceptions-- “Local controversy” standard—Kaufman v. Allstate New Jersey Insurance Co. (3d Cir. 2009)
  5. CAFA appeals
  6. Plaintiffs’ strategies for maneuvering post-removal


The panel will review these and other key questions:

  • How are the Circuit Courts currently responding to requests for removal in class action litigation?
  • What strategies have been effective for plaintiffs' counsel who are forced to litigate in federal court?
  • What tactics should defense counsel consider using to obtain removal to federal court?
  • What is the effect of amending a pleading that was filed pre-CAFA on removal?


D. Matthew Allen
D. Matthew Allen

Carlton Fields

Mr. Allen has a particular emphasis in class action and antitrust litigation, having litigated dozens of class...  |  Read More

Brian Anderson
Brian Anderson

O'Melveny & Myers

He focuses on the defense of all forms of aggregated litigation, including class actions, mass torts, multi-district...  |  Read More

Garrett W. Wotkyns
Garrett W. Wotkyns

Of Counsel
Schneider Wallace Cottrell Brayton Konecky

His practice focuses on class action litigation, with an emphasis on matters involving banking, insurance and employee...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include program handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Audio