Damages waiver cannot defeat CAFA removal

The Class Action Fairness Act (CAFA) provides forfederal district courts to have jurisdiction over class actions in which, among other things, the matter in controversy exceeds $5 million in sum or value. Robert Rodriguez filed a putative class action in state court, claiming unpaid wages and overtime. The employer removed the case to federal district court under CAFA. Rodriguez responded by "waiving" -- on behalf of the class -- all damages in excess of $5 million. So the district court remanded the case to state court, citing a lack of the jurisdictional amount required by CAFA.

The 9th Circuit reversed on the basis of Standard Fire Ins v. Knowles, 133 S.Ct. 1345 (2013). Rodriguez v. AT&T Mobility (9th Cir 08/27/2013).

Prior to a class being certified, the putative class representative has no authority to legally bind the other members of the proposed class. So this "waiver" is not a waiver.

In this case there is still an issue as to whether the aggregate of all claims will be over $5 million, so the case goes back to district court to determine that. And the standard of proof on that issue is a preponderance of evidence. [Essentially, this overrules Lowdermilk v. US Bank, 479 F3d 994 (2007), which required the party seeking removal to prove with “legal certainty” that the amount in controversy is satisfied.]