There's been a lot of talk among class-action lawyers about what post-filing actions might make a state-court class action removable under the Class Action Fairness Act (CAFA). By its terms, CAFA applies only to cases "commenced" after the law was enacted, or February 18, 2005. But what if the plaintiff amends a complaint to add a new class representative? What if the plaintiff amends a complaint to add new allegations about an existing legal theory or amends to add a new defendant? What if the plaintiff changes the class definition? Do any of these actions commence a new case for CAFA purposes?
In Knudsen v. Liberty Mutual Insurance Company, No. 05-C-1489 (6/7/05), the Seventh Circuit ruled on at least one of these questions: a change to the class definition, even if substantial, does not "commence" a new case under CAFA. In Knudsen, the plaintiffs expanded the class definition to include customers of a new corporate entity that was not a party to the suit. In his opinion, Judge Easterbrook implied that the new class definition might be flawed for other reasons, but it did not make the case removeable under CAFA:
[A] new development in a pending suit no more commences a new suit than does its removal. Plaintiffs routinely amend their complaints, and proposed class definitions, without any suggestions that they have restarted the suit--for a restart (like a genuinely new claim) would enable the defendant to assert the statute of limitations . . . [A] plaintiff may assert an entirely novel legal theory in mid-suit without creating a "new" claim in the sense that the defendant could block it by asserting that it had been propounded after the period of limitations expired.
In this passage and others, Judge Easterbrook implies what post-filing changes might make a case removable under CAFA: an entirely new claim for relief, a new defendant, "or any other step sufficiently distinct that courts would treat it as independent for limitations purposes." Easterbrook suggests that a body of CAFA law might develop that will be modeled after Rule 15(c), which determines when a claim "relates back" to the original lawsuit on the one hand or when it creates "fresh litigation" on the other. While fresh litigation might allow removal under CAFA, merely changing the class definition does not.
Meanwhile, there have been at least two other cases dealing with removal under CAFA of pre-CAFA lawsuits: Pritchett v. Office Depo Inc., discussed in a newsletter by Nixon Peabody (pdf); and Lander and Berkowitz, P.C. v. Transfirst Health Services, Inc., discussed in my post "The Schoolhouse Rock Precedent." For general information about the Class Action Fairness Act, see my post titled, "Thinking Out Loud About the Federal Class-Action Bill."