Colorado Class Action Filing Trends
October 15, 2010 by Paul Karlsgodt
I must have more readers than I thought, and some quality readers at that! Andrew Oh-Willeke, Denver lawyer and author of the blog Wash Park Prophet, posted this question as a comment to one of my recent posts, and it seemed like a great topic deserving of its own post:
Do you know of any statistics on how many class action lawsuits are filed in state courts in Colorado? The state judiciary doesn’t track Rule 23 motions in the statistics in its annual reports, so it is hard to track trends. One can make some order of magnitude educated guess by ruling out non-class action eligible suits in District Court (e.g. Rule 120 motions and distaint warrant cases are not going to involve class actions, and presumably all Colorado class actions filed in state court would be filed in District Court, etc.), but, given the different procedural environment, reasoning by analogy from federal district court class action rates isn’t a very sound estimation method, and most places with reputations as class action meccas (e.g. Madison County, Illinois; California) are also unlikely to be representative of Colorado’s state court litigation situation. Has the Class Action Fairness Act of 2005 shifted what class actions there are in Colorado almost entirely to federal court, or is there a steady stream of class action cases being brought under the radar in the state?
The best source that I’m aware of for tracking filings is a fee-based subscription service called CNS (for Courthouse News Service), which you can find online at http://www.courthousenews.com
. They have a database that tracks filings in the federal courts and some, although not all, state courts. Below is what I found out from a series of searches on their filings database for U.S. District Court for the District of Colorado, as well as most of the counties along the Front Range. Because CNS does not include all state courts in Colorado, these numbers are not a complete, but given that the majority of the state population is in the counties whose district courts are included in the CNS database, they should give you a rough idea.
- 32 total filings described as “class actions”
- 23 federal court
- 9 state court filings (Denver 7, Douglas 1, Weld 1)
- 25 total filings
- 19 federal
- 6 state (Denver 4, Arapahoe 4, Boulder 1)
- 70 total filings
- 60 federal court
- 10 state court (Denver 7, Boulder 3)
2010 (through yesterday)
- 37 total filings
- 21 federal court
- 16 state court (Denver 13, Arapahoe 1, Boulder 2)
So, it appears that while a majority of class action filings have been made in federal court (assuming that there aren’t significant numbers of additional state court filings in counties that aren’t in the CNS database), the percentage of federal filings has not necessarily been increasing in the years following the passage of CAFA in 2005. In fact, the year with the highest percentage of state court filings is 2010, in which 43% of the total class actions have been filed in state court.
These statistics have to be taken with some huge grains of salt. They do not reflect removals of cases filed originally in state court. That analysis could be done using the CNS data because CNS tracks removals, but it would be fairly time consuming. Moreover, the data also doesn’t provide any qualitative information about the cases included in the statistics. A pro se filing that uses the words “class action” in the civil cover sheet description would be treated the same as a real class action filed by a reputable firm. Finally, many of the federal class action filings are employment cases, where federal question jurisdiction provides a jurisdictional basis independent of CAFA.
There are a couple of other factors to consider in assessing the potential impact of CAFA on choice of forum. First, many of the active class actions being litigated in the state were filed before CAFA, so CAFA’s expanded removal jurisdiction does not apply to them. I am currently defending 3 Colorado class actions in various stages of proceedings, and all three were filed pre-CAFA. Second, at least in the consumer area, plaintiffs seem to be concentrating less on nationwide class actions and more on individual statewide class actions. This trend is probably in part due to CAFA but also in part due to a series of decisions over the past decade holding that variations in state consumer protection acts and other laws can preclude class treatment of a would-be nationwide class (see, e.g., In re Bridgestone/Firestone, Inc.
, 288 F.3d 1012 (7th Cir. 2002)). CAFA jurisdiction does not apply in a diversity case where the defendant is a citizen of the forum state and more than 2/3 of the class members are also citizens of the forum state. 28 U.S.C. § 1332(d)(4)
. A federal court may decline to exercise jurisdiction when the primary defendants and at least 1/3 of the class members are citizens of the forum state. Id.
§ 1332(d)(3). So, there are still many situations where a class action can be brought in state court and not removed by the defendant.