Complex Litigation: CAFA and Retroactivity

Abstract

Commentary and analysis of the problem of retroactive application of federal court jurisdiction under the Class Action Fairness Act of 2005 (CAFA). Congress enacted CAFA in 2005 to create new federal diversity jurisdiction especially for class actions. In order to gain access to federal court, the proponents of a class action must demonstrate diversity of citizenship between the class claimants and the defendants, that there are at least 100 members in the class, and that the amount in controversy exceeds $5 million. 28 U.S.C. § 1332(d). To satisfy these requirements, the proponents needs only to show minimal diversity among the parties, and may aggregate the claimants’ damages to reach the $5 million amount-in-controversy threshold. In addition, the CAFA statutory scheme created new removal jurisdiction for class actions filed in state courts. 28 U.S.C. § 1453. This article discusses the problem created by class actions that plaintiffs filed before enactment of CAFA in 2005, but pending class certification or subsequently amended. The issue centers on the question whether a post-CAFA amendment of a class action complaint commences a new lawsuit which then brings the action within the scope of CAFA’s provisions, rather than pre-existing class action principles in place before 2005.