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When the Class Action Fairness Act was passed ten years ago, many businesses breathed a collective sigh of relief. No longer would the plaintiffs' bar be able to keep their cases in certain magnet jurisdictions (a/k/a "judicial hellholes") known for looking favorably on class action lawsuits. Many of the cases now would be removable to federal courts, where defendants felt that they had a better chance for fair treatment.
The opportunity to remove, of course, was not limited to cases filed in the magnet courts. It soon became the norm for defendants to remove state court class actions to federal court, regardless of the state or county of origin. Removal of such cases became so routine that many plaintiffs' lawyers who might otherwise have filed their cases in state court began filing them in federal court just to avoid the hassle of the removal process. Today, when a company is faced with a removable class action in state court, and especially a state court with which it is not familiar, its immediate instinct is to remove.
Although that instinct has much to be said for it, removal may not always be the best approach. Many state courts may be equally capable of ensuring sound case management and fair treatment as their federal counterparts, and some may even be preferable in certain respects. Before a defendant rushes to federal court, it should ask at least some of the following questions:
- How backlogged are the state and federal courts in the forum state, and how quickly will the case be resolved in either forum?
- Does the state court have in place a process for individual case management, or will my class action just be treated like one of thousands of cases clogging the court's docket?
- Will there be an opportunity to have a judge specially assigned to the case in state court, or will the case be handled by multiple judges depending on who happens to be sitting at any given time?
- How capable is the pool of judges from which one or more judges would be drawn to handle the case, and how experienced are they with class actions?
- Are any of the judges in either court known to lean one way or the other with respect to class certification or other issues in the case?
- Do I need to be concerned about any anti-business bias among either pool of judges?
- Is either forum's class certification rules more plaintiff-friendly than the other?
- Does the state court have an analog to Daubert for challenging expert testimony?
- Does the state court have a system in place for streamlining discovery?
- Does the state court have an embedded mediation process?
- Are there other characteristics unique to the state court that may weigh in favor of or against removal?
The answers to these questions are not static. Like everything, they have a tendency to change over time as court conditions change, new rules are adopted, and new judicial interpretations of both substantive and procedural law come down. Class action defense counsel need to stay abreast of these changes so they can provide their clients with well-informed advice when it comes time to decide whether to remove.