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Eight months after President Bush signed the Class Action Fairness Act into law, Pub. L. 109-2, 119 Stat. 4 (2005), federal courts have been grappling with the retroactive application of the statute to class actions pending at the time of the signing. Appellate and district courts have generated no fewer than two dozen decisions analyzing retroactivity issues. Already, federal courts have issued conflicting opinions resolving an array of interesting retroactivity problems. Generally, retroactivity problems have centered on two distinct issues. First, courts have addressed whether CAFA applies to state class actions that were pending when CAFA was signed, but that the defendants subsequently removed to federal court after Feb. 18, 2005. Second, courts have grappled with the questions of whether a plaintiff’s various post-CAFA amendments of pleadings commences a new lawsuit so as to bring that “new” class action subject to CAFA. Courts have differed in their approaches to these questions. FOUR CIRCUITS HAVE RULED ON CAFA’S REMOVAL ISSUE CAFA applies to, and became effective for, all class actions “commenced on or after” Feb. 18, 2005. Pub. L. 109-2, � 9. In a number of cases, defendants have attempted to remove state class actions into federal court under CAFA’s new removal provisions, after Feb. 18. See 28 U.S.C. 1453. In the instances where defendants have removed after Feb. 18, the defendants have argued that removal triggers the commencement of a new lawsuit that makes the removed case subject to CAFA’s federal jurisdiction provisions. See 28 U.S.C. 1332(d). Four federal courts of appeal have now decided this issue, and all substantially agree that an action “commences” when the action originally was filed in state court and is not recommenced — or newly commenced — when defendants remove the case to federal court. See Bush v. Cheaptickets Inc., 2005 WL 2456926, 3 (9th Cir. Oct. 6, 2005); see also Natale v. Pfizer Inc., 379 F. Supp. 2d 161 (D. Mass. 2005) (collecting all decisions discussing this issue). The 9th Circuit’s Cheaptickets decision illustrates a common problem that federal courts now encounter with post-CAFA class actions. The plaintiffs in Cheaptickets filed their state class action in California superior court on Feb. 17, 2005, or one day before the president signed CAFA into law. In anticipation of CAFA’s enactment, a large slew of class actions were filed in state court on the day before the legislation’s signing. Cheaptickets Inc. removed the case to federal court in March 2005, arguing that the action was subject to CAFA because the lawsuit commenced on removal. The district court disagreed and remanded the action to state court; on appeal, the 9th Circuit agreed that CAFA’s “commenced” language “surely refers to when the action was originally commenced in state court.” Cheaptickets, id. Furthermore, the 9th Circuit ruled that federal courts must determine the “commencement” issue by application of the state’s own laws and rules of procedure to determine when a dispute may be cognizable in state court. In California courts, an action is commenced when the plaintiffs file the action in court. Calif. Civ. Proc. Code � 350. This commencement rule comports with Fed. R. Civ. P. 3, which indicates that “a civil action is commenced by the filing of a complaint with the court.” In other states, such as New York and Connecticut, an action is commenced when the plaintiff serves the complaint or summons on the defendant. See e.g., Conn. Gen. Stat. � 52-45a (2003). The 9th Circuit, along with other circuits, has concluded that this interpretation of CAFA best comports with the plain language of the statute, the CAFA statutory scheme, and CAFA’s legislative history. See Cheaptickets, id. at 3-4. The 1st, 7th and 10th circuits have resolved the “commencement” issue in the same way. See Knudsen v. Liberty Mutual Insurance Co., 411 F.3d 805 (7th Cir. 2005); Pfizer Inc. v. Lott, 417 F.3d 725, 726 (7th Cir. 2005); Pritchett v. Office Depot Inc., 420 F.3d 1090 (10th Cir. 2005). QUESTIONS RAISED BY SECOND CLUSTER OF CAFA CASES Additionally, numerous federal district courts have applied CAFA’s “commencement” language to mean when an action was originally filed in state court, not at the time of removal. See e.g., In re Expedia Hotel Taxes and Fees Litig., 377 F. Supp. 2d 904 (W.D. Wash 2005); Lander and Berkowitz P.C. v. Transfirst Health Servs. Inc., 374 F. Supp. 2d 776 (E.D. Mo. 2005); Natale v. Pfizer, 379 F. Supp. 2d 161 (D. Mass. 2005). A second cluster of CAFA cases have grappled with the question whether a plaintiff’s post-CAFA amendment of the class action, to change the class definition, add new defendants or add new claims, commences a new action for the purposes of subjecting the action to CAFA. Federal courts have taken different approaches to resolving these issues. See e.g., Adams v. Federal Materials Co. Inc., 2005 WL 1862378 (W.D. Ky. 2005) (recognizing and discussing the competing lines of jurisprudence). NEW DEFENDANTS CAN LEAD TO NEW LITIGATION The 7th Circuit opened the possibility that a post-CAFA amendment to a class action pleading might subject a pre-CAFA state class action to CAFA, through application of the so-called “relation-back” doctrine in Fed. R. Civ. P. 15(c). See Knudsen, 411 F.3d 805 (7th Cir. 2005); Schorsch v. Hewlett-Packard Co., 417 F.3d 748 (5th Cir. 2005). In Knudsen, the 7th Circuit rejected the argument that a plaintiff’s change in the class definition “commenced” a new action for CAFA purposes. However, the court further speculated that if a plaintiff added new defendants, then this action could commence a new piece of litigation through application of Rule 15(c)’s relation-back doctrine. In Knudsen, 7th Circuit Judge Frank H. Easterbook indicated: “[A] new claim for relief (a ‘new cause of action’ in state practice), the addition of a new defendant, or any other step sufficiently distinct that courts would treat it as independent for limitations purposes, could well commence a new piece of litigation for federal purposes even if it bears an old docket number for state purposes. “Removal practice recognizes this point: An amendment to pleadings that adds a claim under federal law (where only state claims had been framed), or adds a new defendant, opens a new window of removal. “We imagine, though we need not hold, that a similar approach will apply under the [CAFA] Act, perhaps modeled on Fed. R. 15 (c), which specifies when a claim relates back to the original complaint (and hence is treated as part of the original suit) and when it is sufficiently independent of the original contentions that it must be treated as fresh litigation.” Knudsen, 411 F.3d at 807. Other courts have followed the 7th Circuit’s suggestion and held that an amended complaint that added new defendants did commence a new civil action for the purposes of the new defendants and permitted the defendants to remove pursuant to CAFA. See e.g., Adams, supra. However, a plaintiff that has amended to add new defendants may avoid application of CAFA if the plaintiff voluntarily dismisses the added defendants and the dismissal does not result in prejudice to the defendants. See Robb v. Stericycle Inc., 2005 WL 2304475 (W.D. La. Aug. 19, 2005). If a plaintiff amends a complaint to add new claims, then some courts have applied the four-factor test in Rule 15(c) to determine whether these newly added claims relate back to the original complaint, or commence a new action. In Plummer v. Farmers Group Inc., for example, an Oklahoma district court concluded that the plaintiff’s addition of new claims under Rule 15(c) was the equivalent of filing a new action. The amended class action petition, then, was a de facto commencement of a new suit, which made that suit removable pursuant to CAFA. See Plummer, 2005 WL 2292174, 5, citing Knudsen, 411 F.3d at 807. CHANGES TO CLASS DEFINITION COULD BE PROBLEMATIC Changes to the class definition may be more problematic with regard to the “new action” issue. A number of federal courts have found that amended class petitions that change the class definition give rise to a new action within the meaning of � 9 of CAFA. See Senterfitt v. Sun Trust Mortgage Inc., 2005 WL 2100594 (S.D. Ga. Aug. 31, 2005); Heaphy v. State Farm Mut. Auto Ins. Co., 2005 WL 1950244 (W.D. Wash. Aug 15, 2005). Other courts, however, have disputed whether CAFA permits application of the relation-back doctrine, because Congress did not say so in CAFA. See Weekley v. Guidant Corp., 2005 WL 2348476 (E.D. Ark. Sept. 23, 2005). Problems relating to retroactivity commonly arise after Congress enacts a new statute or procedural rule. One may expect a stream of CAFA cases within the next year dealing with the commencement issue. The simple retroactivity problems concerning pre-CAFA filing most likely will be resolved in accord with the emerging consensus of the federal circuits. However, post-CAFA cases involving amended petitions, adding new claims, parties or class definition may continue to challenge the federal courts well into the future. Linda S. Mullenix holds the Morris and Rita Atlas Chair in Advocacy, University of Texas School of Law. She can be reached at [email protected].

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