In Bartnikowski v. NVR Inc., a wage and hour employment class action brought under state law, the Fourth Circuit Court of Appeals held that the employer/defendant failed to satisfy the amount in controversy requirement for federal removal jurisdiction under the CAFA because the employer relied upon unsupported assumptions as to the average hours of overtime worked per week by the putative class of employees. The Bartnikowski plaintiffs had not specified the amount of damages in their complaint, and therefore the employer had the burden of showing the jurisdictional threshold was met. In attempting to do so, the employer extrapolated the number of overtime hours class members allegedly worked by looking to one plaintiff’s declaration in an unrelated lawsuit that he had worked an average of five extra hours per week. The employer argued that if all class members had worked an average of five hours of overtime per week, then the amount in controversy would be satisfied. The court of appeals rejected this approach, reasoning that the employer’s “calculations” were wholly unsupported, as there were no records or other evidence suggesting the five-hours-per-week average was a reasonable assumption. The court pointed out that the employer might be able to remove the case at a subsequent stage in the litigation because Congress eliminated the one-year time limitation on removals under CAFA. One member of the panel dissented, arguing that “the five-hour estimate is not so speculative as to not even require a response from [the plaintiffs].” The dissenting judge took the view that the employer had made a prima facie showing removal was proper and it was now up to the plaintiffs to come back with rebuttal evidence demonstrating otherwise.