Complex Litigation: CAFA "Carve-Outs"

Abstract

Commentary and analysis of two carve-outs and exceptions to federal 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. This article discusses two types of carve-outs from federal jurisdiction in which courts must decline to exercise jurisdiction (mandatory), and circumstances in which courts may decline to exercise jurisdiction (discretionary). The article focuses on how courts have treated one type of CAFA mandatory carve-out, dealing with securities litigation, and one permissive carve-out, dealing with repetitive, duplicative class litigation. 28 U.S.C. § 1332(d)(9); 28 U.S.C. 1332(d)(4)(A).