Through a series of opinions issued in the beginning of April, the Ninth Circuit Court of Appeals has clarified three jurisdictional issues arising under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. 1332(d), 1453, 1711-1715. Generally, CAFA allows class actions to be removed when there is minimal diversity between the parties (i.e., at least one plaintiff is a resident of a different state than at least one defendant), the class has at least 100 members, and the amount in controversy is at least $5 million. 28 U.S.C. 1332(d). A case must be removed within 30 days of the initial complaint, or within 30 days of the discovery of a proper basis for removal. 28 U.S.C. 1446(b). In one recent case, the Ninth Circuit held that the issuance of a class certification order that defines a class such that CAFA's amount-in-controversy requirement is met is a "relevant change of circumstances" that reveals "a new and different ground for removal" even when a previous petition for removal was rejected based on a narrower class definition and lower amount in controversy. Reyes v. Dollar Tree Stores, Inc., No. 15-55176 (Apr. 1, 2015). Accordingly, the case was properly removed within 30 days of the new certification order. In another case, the Ninth Circuit held that a class action was properly removed within 30 days of the discovery of a new ground for removal, even when the case could have been removed to federal court on another ground since its inception. Jordan v. Natio, No. 14- 35943 (Apr. 1, 2015). There, the case could have been removed based on federal officer jurisdiction at the time the complaint was filed, but it only later became apparent that the action met CAFA's amount-in-controversy requirement.
In a third case, the Ninth Circuit applied the "securities exception" for the first time and found that a class action that otherwise met CAFA's requirements was not removable. Eminence Investors, LLLP v. Bank of New York Mellon, No. 15-14237 (Apr. 2, 2015). Under the securities exception, a class action cannot be removed if it "solely involves . . . a claim that relates to the rights, duties (including fiduciary duties), and obligations relating to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder." 28 U.S.C. 1453(d)(3). The Ninth Circuit joined the Second Circuit in construing this exception broadly, citing the importance of national uniformity in this area. Even though the plaintiff's claims raised collateral issues of state law and implicated affirmative defenses under state law, such issues still "related" to the security claims at issue.