Removing the "Fail-Safe" Class Action Under CAFA
20 November 2009
Mayer Brown Article
Congress passed the Class Action Fairness Act (“CAFA”) nearly five years ago to ensure that defendants targeted by large class-action lawsuits filed in state courts would be able to remove such litigation to federal court. In response, the plaintiffs’ bar has resorted to a new and creative tactic for defeating removal under CAFA: pleading a “fail-safe” class—that is, one in which a person’s membership in a proposed class turns on the merits of the person’s underlying claim.