Chicago Business Litigation Lawyer Blog
Thirty days. That is the window a defendant has to decide where an Illinois class action will be litigated, and the decision is frequently made by default, in the middle of a document collection, by a company that has not yet read the complaint closely enough to know what it is holding. The forum question looks procedural. It is not. It determines which standing doctrine applies, whether a certification ruling can be appealed before trial, which precedents bind the judge, and in the privacy and statutory damages cases that dominate Illinois class litigation, it often determines whether the case survives at all.
The instinct to remove is usually right, and the analysis that supports it is more forgiving than defendants expect. Under the Class Action Fairness Act, 28 U.S.C. section 1332(d), a federal court has jurisdiction over a class action where any class member is a citizen of a state different from any defendant, the proposed class has at least one hundred members, and the aggregated claims exceed five million dollars. In Dart Cherokee Basin Operating Co. v. Owens, the Supreme Court held that a notice of removal need include only a plausible allegation that the amount in controversy is met, with evidence required later and only if the plaintiff contests it or the court questions it, and the Court noted that no antiremoval presumption applies to cases invoking CAFA. In Standard Fire Insurance Co. v. Knowles, a unanimous Court held that a named plaintiff cannot defeat CAFA jurisdiction by stipulating before certification that the class will not seek more than five million dollars, because he cannot bind absent class members before they are a class.