The Class Action Fairness Act (“CAFA”) allows removal of class actions to federal court where the amount in controversy exceeds $5 million (exclusive of interest and costs). See 28 U.S.C. § 1332(d)(2). There have been a number of appellate and trial court decisions addressing the issue of whether, on a motion to remand, the plaintiff has the burden of disproving—or the defendant has the burden of proving—satisfaction of CAFA’s jurisdictional threshold.

In the January 2006 issue of The Insurance Class Action Reporter, we reported on the Seventh Circuit decision in Brill v. Countrywide Home Loans, 427 F.3d 446, 448 (7th Cir. 2005), holding that the defendant has the burden of proof on this issue. Since that time, two additional federal circuit courts have followed the Brill reasoning on this issue. See Miedema v. Maytag Corp., 450 F.3d 1322, 1328- 30 (11th Cir. 2006); Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 686 (9th Cir. 2006). In these decisions, the Ninth and Eleventh Circuits, respectively, held that on removal the defendant bears the burden of proving that the jurisdictional threshold under CAFA has been met.