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35 W. St. U. L. Rev. 193 (2007-2008)


In this Article, I wish to suggest one place in which state courts can continue to have an impact on class-action practice: the adjudication of counterclaim class actions. A counterclaim class action arises when a non-class complaint is filed by a plaintiff against a defendant, who turns around and asserts against the plaintiff, on behalf of a class of similarly situated individuals, a counterclaim for relief. In Part II, I explain the factual, jurisdictional, and legal dynamics of such state-court counterclaim class actions. In Part III, I argue that counterclaim class actions, when filed in state court, are not removable to federal court under either the general provision for the removal of cases from state court or CAFA's specific removal provision. The analysis is essentially textual; the language of the removal statutes commands this result, despite policy arguments that might be mustered in favor of an expansive federal jurisdiction over cases containing class allegations. The analysis thus brings up the age-old tension between text and purpose; but in the area of removal, text has always had a controlling effect on the outcome. And so it should here. CAFA might have shifted the tide of class action practice toward the federal shore, but it has left some wading room for state courts to contribute to the development of the law of class actions.



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