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PHILADELPHIA � The Bauhaus school of architecture famously preached that “less is more,” but the Third Circuit U.S. Court of Appeals now has taken that one step beyond, finding that in statutory construction, the word “less” sometimes actually means “more.” Following the lead of three other circuits, a unanimous panel of the Third Circuit held this week that a key provision of the Class Action Fairness Act includes a “typographical error” in which Congress accidentally used the word less when it meant to say more. Under CAFA, a defendant named in a class action filed in the state courts may remove the suit to federal court. The law also provides that if the federal court determines that the case should be sent back to the state courts, the defendant may file a discretionary appeal. The glitch in the law, courts have discovered, is the wording of the time limit imposed on such appeals. CAFA states that a federal appellate court “may accept an appeal” from a remand order “if application is made to the court of appeals not less than seven days after entry of the order.” Read literally, the law seems to impose not a time limit on the appeal, but a waiting period followed by an unlimited time to appeal. Now, in Morgan v. Gay, the Third Circuit has joined a growing chorus of appellate courts in saying that Congress obviously meant the opposite of what it said. “Because the uncontested legislative intent … was to impose a seven-day deadline for appeals, we conclude that the statute as written contains a typographical error and should be read to mean ‘not more than seven days,’” Judge D. Brooks Smith wrote. Smith, in an opinion joined by Judges Maryanne Trump Barry and Richard Nygaard, noted that the Ninth, Tenth and Eleventh circuits have all reached the same conclusion. In Pritchett v. Office Depot Inc., the Tenth Circuit said, “Given Congress’ stated intent to impose time limits on appeals of class action remand orders and the limited availability of appeals prior to the statute’s enactment, we can think of no plausible reason why the text of the act would instead impose a seven-day waiting period followed by a limitless window for appeal.” Smith said he recognized that looking to legislative history is a controversial practice that has been described as “looking over a crowd and picking out your friends.” But in the case of CAFA, Smith said, “the crowd speaks with one voice.” As a result, Smith concluded that “this court does not need to step into a statutory interpretation debate over the role of legislative history and congressional intent to conclude that [the law] needs common sense revision that accurately reflects the uncontested intent of Congress.” The ruling clears the way for the defense to pursue an appeal of an order by U.S. District Judge Garrett Brown Jr. of the District of New Jersey that remanded a class action brought by purchasers of the skin cream Stri Vectin-SD alleging false advertising and other claims. Garrett ruled that the federal courts lacked jurisdiction over the case and remanded it to the New Jersey Superior Court. Now the Third Circuit has agreed to hear an appeal of the ruling and will issue a second decision on the merits. Shannon P. Duffy is a reporter with The Legal Intelligencer, a Recorder affiliate based in Philadelphia.

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