Michael S. Kun Quoted in Article "AT&T Mobility Case Eases Class Action Removal Hurdles"

The Ninth Circuit's Tuesday ruling that employees' waiver of any claim over the $5 million federal jurisdictional threshold didn't merit remanding a proposed wage-and-hour class action against AT&T Mobility Services LLC to state court will likely make it easier for employers to remove putative class actions to federal court and keep them there, lawyers say.

Since CAFA was passed in 2005, plaintiffs attorneys have engaged in a number of tactics to try to fend off removal of class actions to federal court, including having plaintiffs stipulate that they would not seek more than $5 million in damages in order to duck CAFA's minimum jurisdictional limit, according to Michael Kun, national co-chair of Epstein Becker & Green PC's wage-and-hour practice.

"For the Ninth Circuit to confirm that the plaintiffs could not agree to waive the over-$5 million threshold is in many regards an important affirmation that this tactic is dead," Kun said.

As a result, defendants in class actions in the Ninth Circuit are likely to have an easier time pushing the cases to federal court and having them stay there under CAFA, which was intended to steer cases of national importance and considerable heft to federal court, according to Kun.

"This ruling is good news for defendants and a nice reaffirmation of what CAFA is all about in the first place," he said.

Still, though the Ninth Circuit foreclosed on the use of waivers to avoid removal under CAFA, plaintiffs could continue to skirt CAFA in other ways, including pleading claims and defining a proposed class in a vague manner in order to make it difficult for the defendant to calculate the amount in controversy with any precision, according to Kun.

The case is Rodriguez v. AT&T Mobility Services LLC, case number 13-56149, in the U.S. Circuit Court of Appeals for the Ninth Circuit.