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Supreme Court to Address Requirements for Class Action Removal

By Jordan Grotzinger on April 9, 2014
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Consumer products companies are frequently the targets of nationwide class actions, and a common defense strategy includes removing these cases to federal court under the Class Action Fairness Act of 2005. “CAFA” provides federal jurisdiction over certain class actions where the amount in controversy  exceeds $5 million. See 28 U.S.C.  §§ 1332(d)(2), (5). On April 7, 2014, the Supreme Court granted review of a 10th Circuit case that was removed under CAFA and then remanded based on a lack of evidence supporting the amount in controversy. The Supreme Court, thus, appears poised to clarify what is required of a defendant removing a case under CAFA (or on other grounds for that matter).Supreme Court

The case is Dart Cherokee Basin Operating Co., LLC v. Owens, 730 F.3d 1234 (10th Cir. 2013), in which the Tenth Circuit declined to overturn a Kansas District Court opinion granting a motion to remand a case removed to federal court by Dart Cherokee Basin Operating Co. under CAFA. Although Dart’s Notice of Removal explained why the Plaintiff’s royalty claims raised the amount in controversy above $5 million, the District Court granted the Plaintiff’s motion to remand because the Notice of Removal was not supported by evidence, “such as an economic analysis … or settlement estimates” supporting Dart’s amount in controversy estimate.  Id. at 1234. When Dart proffered supporting evidence in opposition to the motion to remand, the Court held that it was too late based on the requirement that removal papers are generally due within 30 days of the filing of the complaint.

An en banc panel declined review, and the dissenting opinion explained that “nothing in the removal statutes or Supreme Court decisions, or any holdings of this court, require the submission of such evidence before the jurisdictional allegations are challenged.” Id. at 1235. In fact, the dissent noted, Supreme Court precedent holds that, “[w]hen challenged on allegations of jurisdictional facts, the parties must support their allegations by competent proof.” Id. at 1236, quoting Hertz Corp. v. Friend, 559 U.S. 77, 96-97 (2010) (emphasis added). Prior to such challenge, all that should be required is “a short and plain statement of the grounds for removal.”  730 F.3d at 1235, quoting 28 U.S.C. § 1446(a). “The burden imposed by the district court on Petitioners was excessive and unprecedented.” 730 F.3d at 1237.

The Supreme Court’s grant of review may signal a reversal, and its decision should clarify what a removing defendant must allege (or proffer) and when in order to satisfy the requirements for removal jurisdiction. Predecent suggests that evidence will not be required with removal papers, but perhaps the Court will require more than a “short and plain statement” along the lines of the “plausibility” standard applicable to complaints as set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and related cases. Consumer products companies defending potentially removable cases should watch for this decision as it will provide useful guidance.

Photo of Jordan Grotzinger Jordan Grotzinger

Jordan Grotzinger, Co-Chair of the Los Angeles Litigation practice, is a business trial lawyer focusing on trade secret law, FinTech and financial services litigation, entertainment litigation and consumer class action defense.

As creator and host of Greenberg Traurig’s Trade Secret Law Evolution Podcast

…

Jordan Grotzinger, Co-Chair of the Los Angeles Litigation practice, is a business trial lawyer focusing on trade secret law, FinTech and financial services litigation, entertainment litigation and consumer class action defense.

As creator and host of Greenberg Traurig’s Trade Secret Law Evolution Podcast, Jordan offers comprehensive summaries of and concrete takeaways on the latest developments and trends in trade secret law, including distinctions between the Uniform Trade Secrets Act (UTSA) and the Defend Trade Secrets Act (DTSA), what constitutes a trade secret, what’s required to maintain trade secret status, how to sufficiently identify trade secrets for purposes of pleadings and discovery, remedies for misappropriation and how to get them, and practical tips to protect these critical assets and litigate these cases. Working with his Knowledge Solutions group and other key team members, Jordan created this podcast to systematize his constant learning of this ever-important subject as it develops in real time and give listeners who need to stay current in this area an easy, digestible analysis of its latest and material developments in episodes short enough for a commute.

Jordan has tried jury and non-jury cases throughout California and has argued before the Ninth Circuit Court of Appeals and the California Court of Appeal.

Read more about Jordan GrotzingerEmail
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  • Posted in:
    Business and Commercial, Class Action & Mass Torts
  • Blog:
    Consumer Products Counselor
  • Organization:
    Greenberg Traurig, LLP
  • Article: View Original Source

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