The Eleventh Circuit’s recent decision in Thomas v. Bank of America Corp. evidences the wide gap that has developed between that Circuit and other federal circuits regarding removals under the Class Action Fairness Act. The Thomas court relied on Lowery v. Ala. Power Co., and held that “[a] case does not become removable as a CAFA case until a document is ‘received by the defendant from the plaintiff — be it the initial complaint or a later received paper … that unambiguously establishes federal jurisdiction.’” The court clarified: “In other words, a defendant may not simply file a notice of removal thirty days after the filing of the complaint unless that document shows that the CAFA’s jurisdictional requirements … are met.”

The Thomas complaint sought recovery of premiums paid for credit protection plans, as well as treble damages and attorney’s fees under RICO, but did not estimate the number of class members or the amount in controversy. Bank of America’s removal was supported by a declaration stating that it had enrolled 77,787 customers and collected $4,825,809 in fees for the credit protection plans. It argued that the estimated number of class members and total premiums collected, coupled with the claims for treble damages and attorney’s fees, established CAFA’s requirements. The district court ordered the case be remanded and the Eleventh Circuit affirmed, finding that Bank of America failed to satisfy CAFA’s amount in controversy and size requirements.

Under the Eleventh Circuit’s approach, CAFA removals are likely to become very rare, if not extinct, standing Congress’ purpose in enacting CAFA on its head. The Eleventh Circuit’s standard also is in stark contrast to that of other circuits. For example, the Seventh Circuit recently held in Spivey v. Verture, Inc., that “[o]nce the proponent of federal jurisdiction has explained plausibly how the stakes exceed $5 million, then the case belongs in federal court unless it is legally impossible for the plaintiff to recover that much.”