E.D. Ark. on "Commencement" under the Class Action Fairness Act (CAFA)

In Weekley v. Guidant Corp., --- F.Supp.2d ----, 2005 WL 2348476 (E.D. Ark. Sept. 23, 2005), a judge in the Eastern District of Arkansas, ruling on a motion for remand, had occassion to interpret the term "commencement" under Section 9 of the Class Action Fairness Act (CAFA). The plaintiff in the case had filed a unitary complaint against the defendants prior to the February 18, 2005 effective date of CAFA, but subsequently, on July 8, 2005, amended the complaint to allege a nationwide class action under Arkansas law. Defendants filed a notice of removal pursuant to 28 U.S.C. §§ 1332(d), 1446, and 1453, arguing that because the amended complaint represented the first time class action status was being sought, the filing of the amended complaint consituted "commencement" of a class action under CAFA.

The court rejected the defendants' argument, stating:

"Section 9 of the Class Action Fairness Act is about as clear and simple as a statute can be; it says that the Act 'shall apply to any civil action commenced on or after the date of enactment of this act.' Rule 3 of the Arkansas Rules of Civil Procedure, like Rule 3 of the Federal Rules of Civil Procedure, provides that an action is commenced by filing a complaint. Because Weekley filed her complaint before February 18, 2005, the Class Action Fairness Act does not apply to this civil action."

This simple and cogent analysis belies the fact that the issue of what "commencement" means under CAFA has been and continues to be the subject of much dispute. An Analysis & Perspective piece in the September 23 issue of U.S. Law Week provides a good review of the various arguments that have been raised and the judicial responses thereto. USLW subscribers can read the piece at http://pubs.bna.com/ip/BNA/cal.nsf/is/a0b1k0b9f3. The citation is USLW, Volume 06 Number 18 September 23, 2005, Page 677 ISSN 1529-8000.