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Supreme Court Opinion in Dart Cherokee Basin v. Owens

By Wystan Ackerman & Wystan Ackerman on December 16, 2014
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Yesterday, the U.S. Supreme Court issued its opinion in Dart Cherokee Basin Operating Co., LLC v. Owens, No. 13-719 (slip opinion). Unsurprisingly, the Court held that a notice of removal under the Class Action Fairness Act does not need to attach evidence regarding the amount in controversy. Given that the removal statute requires a notice “containing a short and plain statement of the grounds for removal,” the Court held that the notice “need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” (Slip op. at 7.) Evidence is required only if the plaintiffs file a motion to remand, or the Court requests an evidentiary showing. In reaching this result, the Court also noted that there is no presumption against removal—“no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court.” (Id.) This is all helpful to defendants in obtaining federal jurisdiction in class actions, although I think it is what most lawyers thought the law was before this decision. This will help ameliorate the “fire drill” that defendants sometimes experience when they are sued in a class action and need to develop an estimate of the amount in controversy.

I’m proud to say that I correctly predicted (see my blog post regarding the grant of certiorari in this case) that the Court would hold that a notice of removal does not require evidence. I was dead wrong, however, about the vote. I thought it would be 9-0 when it turned out to be 5-4. But not because there is any indication that any justice concluded that a notice of removal must attach evidence. Rather, as foreshadowed in the oral argument (see my blog post on the oral argument), the split occurred because of a debate over the scope of the Court’s jurisdiction to hear a CAFA case where the Tenth Circuit had denied leave to appeal, and the application of the appropriate standard of review.

The majority opinion was authored by Justice Ginsburg, and joined by Chief Justice Roberts, and Justices Breyer, Alito and Sotomayor. They concluded that the Court had jurisdiction to review the Tenth Circuit’s denial of leave to appeal, that the Tenth Circuit appeared to have denied review based on a conclusion that the district court’s decision was correct (i.e., that a notice of removal must attach evidence), and that the Tenth Circuit had abused its discretion by erring as a matter of law. The majority noted that the dissenters had joined the Court’s unanimous opinion in Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013), which involved the same procedural posture (the court of appeals had denied review), without suggesting any jurisdictional impediment.

Justice Scalia’s dissent, joined by Justices Kennedy and Kagan, and joined by Justice Thomas except for the conclusion, would have dismissed the case as improvidently granted. The dissent concluded that the Tenth Circuit might not have abused its discretion if, for example, it were simply too busy to decide the case within CAFA’s 60-day period for an appellate decision, or the case was a poor vehicle to decide the issue.  The dissenters felt they had an insufficient basis to determine whether there was an abuse of discretion by the court of appeals. As to Knowles, Justice Scalia concluded he made a mistake in overlooking the potential jurisdictional issue.

Justice Thomas concluded that the Court had no jurisdiction whatsoever because an application for permission to appeal in the court of appeals is not a “case” in the court of appeals, within the meaning of 28 U.S.C. § 1254.

As I noted before in discussing the oral argument in this case, it seems unlikely that Congress intended, when it allowed courts of appeals to accept these types of appeals under CAFA, in their discretion, to restrict the Supreme Court’s ability to hear such cases if the court of appeals declined review. Perhaps Congress will be motivated to settle this issue by amending 28 U.S.C. § 1453(c)(1) to make reference to the Supreme Court as well as the courts of appeals. Other interlocutory appeal statutes might also be worthy of similar amendments.

But in the meantime, what can a defendant do where it is faced with a CAFA appeal (or perhaps some other interlocutory appeal, if the same issue applies) in which leave to appeal might be denied by the court of appeals, perhaps without explanation or with little explanation, and four justices of the Supreme Court are likely to be concerned about whether they have proper jurisdiction? One approach might be to petition for certiorari before the court of appeals has rendered its judgment. 28 U.S.C. § 1254 provides that “Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree . . . .” (Emphasis added.) So if you petitioned the Court before the court of appeals rendered judgment, it would seem to clearly have the power to review the district court’s decision. Perhaps the Court could even hold that “early” petition until after the court of appeals has made its decision, and then still have the power to review the district court’s decision, if the Court chose to take that route.

Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class…

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class actions involving homeowners’ insurance coverage and market conduct/claim-handling practices. He has been prominently involved in high-profile property insurance litigation concerning the September 11th catastrophe and Hurricane Katrina, and Chinese-made drywall. Based in the insurance capital of Hartford, Connecticut, Wystan writes the blog Insurance Class Actions Insider, which was selected by Lexis Nexis as a top insurance blog for 2011.

Wystan grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state. He always had strong interests in history, politics and baseball and his heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox). Wystan says it was his early fascination with Lincoln that drove him to practice law. As a high school senior, he was one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified his interest in law and government. He went on to Bowdoin College, where he wrote for the Bowdoin Orient and majored in government. After Bowdoin, he went on to Columbia Law School. He also interned in the chambers of then-Judge Sonia Sotomayor on the Second Circuit. Wystan graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole.

When Wystan’s not at his desk, flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation he often can be found watching “Dora the Explorer” or reading or playing whiffleball with his young daughter, helping his wife with her business, Option Realty, reading a book about history or politics, or watching the Boston Red Sox.

Read Wystan’s rc.com bio.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and most of the class actions I’ve defended have been brought against insurance companies. I’ve also handled some involving products liability, managed care, health care, utilities, financial services, higher education and environmental issues.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at work, you might find me running lines or watching a musical with my teenage daughter who hopes to be a Broadway star (or taking her to voice or dance lessons) or reading a good book.

Read more about Wystan AckermanEmail
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  • Posted in:
    Class Action & Mass Torts, Insurance
  • Blog:
    Class Actions Insider
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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