STANDARD FIRE INSURANCE COMPANY v. KNOWLES

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–1450

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THE STANDARD FIRE INSURANCE COMPANY, PETITIONER v. GREG KNOWLES

on writ of certiorari to the united states court of appeals for the eighth circuit

[March 19, 2013]

Justice Breyer delivered the opinion of the Court.

The Class Action Fairness Act of 2005 (CAFA) provides that the federal “district courts shall have original jurisdiction” over a civil “class action” if, among other things, the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U. S. C. §§1332(d)(2), (5). The statute adds that “to determine whether the matter in controversy exceeds the sum or value of $5,000,000,” the “claims of the individual class members shall be aggregated.” §1332(d)(6).

The question presented concerns a class-action plaintiff who stipulates, prior to certification of the class, that he, and the class he seeks to represent, will not seek damages that exceed $5 million in total. Does that stipulation remove the case from CAFA’s scope? In our view, it does not.

I

In April 2011 respondent, Greg Knowles, filed this proposed class action in an Arkansas state court against petitioner, the Standard Fire Insurance Company. Knowles claimed that, when the company had made certain homeowner’s insurance loss payments, it had un-lawfully failed to include a general contractor fee. And Knowles sought to certify a class of “hundreds, and pos-sibly thousands” of similarly harmed Arkansas policyholders. App. to Pet. for Cert. 66. In describing the relief sought, the complaint says that the “Plaintiff and Class stipulate they will seek to recover total aggregate damages of less than five million dollars.” Id., at 60. An attached affidavit stipulates that Knowles “will not at any time during this case . . . seek damages for the class . . . in excess of $5,000,000 in the aggregate.” Id., at 75.

On May 18, 2011, the company, pointing to CAFA’s jurisdictional provision, removed the case to Federal District Court. See 28 U. S. C. §1332(d); §1453. Knowles argued for remand on the ground that the District Court lacked jurisdiction. He claimed that the “sum or value” of the “amount in controversy” fell beneath the $5 million threshold. App. to Pet. for Cert. 2. On the basis of evidence presented by the company, the District Court found that that the “sum or value” of the “amount in contro-versy” would, in the absence of the stipulation, have fallen just above the $5 million threshold. Id., at 2, 8. Nonetheless, in light of Knowles’ stipulation, the court concluded that the amount fell beneath the threshold. The court con-sequently ordered the case remanded to the state court. Id., at 15.

The company appealed from the remand order, but the Eighth Circuit declined to hear the appeal. Id., at 1. See 28 U. S. C. §1453(c)(1) (2006 ed., Supp. V) (providing discretion to hear an appeal from a remand order). The company petitioned for a writ of certiorari. And, in light of divergent views in the lower courts, we granted the writ. Compare Frederick v. Hartford Underwriters Ins. Co., 683 F. 3d 1242, 1247 (CA10 2012) (a proposed class-action representative’s “attempt to limit damages in the complaint is not dispositive when determining the amount in controversy”); with Rolwing v. Nestle Holdings, Inc., 666 F. 3d 1069, 1072 (CA8 2012) (a precertification “binding stipulation limiting damages sought to an amount not exceeding $5 million can be used to defeat CAFA jurisdiction”).

II

CAFA provides the federal district courts with “original jurisdiction” to hear a “class action” if the class has more than 100 members, the parties are minimally diverse, and the “matter in controversy exceeds the sum or value of $5,000,000.” 28 U. S. C. §§1332(d)(2), (5)(B). To “determine whether the matter in controversy” exceeds that sum, “the claims of the individual class members shall be aggregated.” §1332(d)(6). And those “class members” include “persons (named or unnamed) who fall within the definition of the proposed or certified class.” §1332(d) (1)(D) (emphasis added).

As applied here, the statute tells the District Court to determine whether it has jurisdiction by adding up the value of the claim of each person who falls within the definition of Knowles’ proposed class and determine whether the resulting sum exceeds $5 million. If so, there is jurisdiction and the court may proceed with the case. The District Court in this case found that resulting sum would have exceeded $5 million but for the stipulation. And we must decide whether the stipulation makes a critical difference.

In our view, it does not. Our reason is a simple one: Stipulations must be binding. See 9 J. Wigmore, Evidence §2588, p. 821 (J. Chadbourn rev. 1981) (defining a “judicial admission or stipulation” as an “express waiver made . . . by the party or his attorney conceding for the purposes of the trial the truth of some alleged fact” (emphasis deleted)); Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U. S. ___, ___ (2010) (slip op., at 10) (describing a stipulation as “ ‘binding and conclusive’ ” and “ ‘not subject to subsequent variation’ ” (quoting 83 C. J. S., Stipulations §93 (2000))); 9 Wigmore, supra, §2590, at 822 (the “vital feature” of a judicial admission is “universally conceded to be its conclusiveness upon the party making it”). The stipulation Knowles prof-fered to the District Court, however, does not speak for those he purports to represent.

That is because a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified. See Smith v. Bayer Corp., 564 U. S. ___, ___ (2011) (slip op., at 15) (“Neither a proposed class action nor a rejected class action may bind nonparties”); id., at ___ (slip op., at 13) (“ ‘[A] nonnamed class member is [not] a party to the class-action litigation before the class is certified’ ” (quoting Devlin v. Scardelletti, 536 U. S. 1 , n. 1 (2002) (Scalia, J., dissenting))); Brief for Respondent 12 (conceding that “a damages limitation . . . cannot have a binding effect on the merits of absent class members’ claims unless and until the class is certified”).

Because his precertification stipulation does not bind anyone but himself, Knowles has not reduced the value of the putative class members’ claims. For jurisdictional purposes, our inquiry is limited to examining the case “as of the time it was filed in state court,” Wisconsin Dept. of Corrections v. Schacht, 524 U. S. 381, 390 (1998) . At that point, Knowles lacked the authority to concede the amount-in-controversy issue for the absent class members. The Federal District Court, therefore, wrongly concluded that Knowles’ precertification stipulation could overcome its finding that the CAFA jurisdictional threshold had been met.

Knowles concedes that “[f]ederal jurisdiction cannot be based on contingent future events.” Brief for Respondent 20. Yet the two legal principles to which we have just referred—that stipulations must be binding and that a named plaintiff cannot bind precertification class members—mean that the amount to which Knowles has stipulated is in effect contingent.

If, for example, as Knowles’ complaint asserts, “hundreds, and possibly thousands” of persons in Arkansas have similar claims, App. to Pet. for Cert. 66, and if each of those claims places a significant sum in controversy, the state court might certify the class and permit the case to proceed, but only on the condition that the stipulation be excised. Or a court might find that Knowles is an inadequate representative due to the artificial cap he purports to impose on the class’ recovery. E.g., Back Doctors Ltd. v. Metropolitan Property & Cas. Ins. Co., 637 F. 3d 827, 830–831 (CA7 2011) (noting a class representative’s fiduciary duty not to “throw away what could be a major component of the class’s recovery”). Similarly, another class member could intervene with an amended complaint (without a stipulation), and the District Court might permit the action to proceed with a new representative. See 5 A. Conte & H. Newberg, Class Actions §16:7, p. 154 (4th ed. 2002) (“[M]embers of a class have a right to intervene if their interests are not adequately represented by existing parties”). Even were these possibilities remote in Knowles’ own case, there is no reason to think them farfetched in other cases where similar stipulations could have more dramatic amount-lowering effects.

The strongest counterargument, we believe, takes a syl-logistic form: First, this complaint contains a presently nonbinding stipulation that the class will seek damages that amount to less than $5 million. Second, if the state court eventually certifies that class, the stipulation will bind those who choose to remain as class members. Third, if the state court eventually insists upon modification of the stipulation (thereby permitting class members to obtain more than $5 million), it will have in effect created a new, different case. Fourth, CAFA, however, permits the federal court to consider only the complaint that the plaintiff has filed, i.e., this complaint, not a new, modified (or amended) complaint that might eventually emerge.

Our problem with this argument lies in its conclusion. We do not agree that CAFA forbids the federal court to consider, for purposes of determining the amount in controversy, the very real possibility that a nonbinding, amount-limiting, stipulation may not survive the class certification process. This potential outcome does not re-sult in the creation of a new case not now before the federal court. To hold otherwise would, for CAFA jurisdictional purposes, treat a nonbinding stipulation as if it were binding, exalt form over substance, and run directly counter to CAFA’s primary objective: ensuring “Federal court consideration of interstate cases of national impor-tance.” §2(b)(2), 119Stat. 5. It would also have the effect of allowing the subdivision of a $100 million action into 21 just-below-$5-million state-court actions simply by including nonbinding stipulations; such an outcome would squarely conflict with the statute’s objective.

We agree with Knowles that a federal district court might find it simpler to value the amount in controversy on the basis of a stipulation than to aggregate the value of the individual claims of all who meet the class description. We also agree that, when judges must decide jurisdictional matters, simplicity is a virtue. See Hertz Corp. v. Friend, 559 U. S. 77, 94 (2010) . But to ignore a nonbinding stipulation does no more than require the federal judge to do what she must do in cases without a stipulation and what the statute requires, namely “aggregat[e]” the “claims of the individual class members.” 28 U. S. C. §1332(d)(6).

Knowles also points out that federal courts permit individual plaintiffs, who are the masters of their complaints, to avoid removal to federal court, and to obtain a remand to state court, by stipulating to amounts at issue that fall below the federal jurisdictional requirement. That is so. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 294 (1938) (“If [a plaintiff] does not desire to try his case in the federal court he may resort to the expedi-ent of suing for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant cannot remove”). But the key characteristic about those stipulations is that they are legally binding on all plaintiffs. See 14AA C. Wright, A. Miller, & E. Cooper, Fed-eral Practice and Procedure §3702.1, p. 335 (4th ed. 2011) (federal court, as condition for remand, can insist on a “binding affidavit or stipulation that the plaintiff will continue to claim less than the jurisdictional amount” (em-phasis added)). That essential feature is missing here, as Knowles cannot yet bind the absent class.

Knowles argues in the alternative that a stipulation is binding to the extent it limits attorney’s fees so that the amount in controversy remains below the CAFA threshold. We do not consider this issue because Knowles’ stipulation did not provide for that option.

In sum, the stipulation at issue here can tie Knowles’ hands, but it does not resolve the amount-in-controversy question in light of his inability to bind the rest of the class. For this reason, we believe the District Court, when following the statute to aggregate the proposed class members’ claims, should have ignored that stipulation. Because it did not, we vacate the judgment below and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Print this transcript Transcript: 

ORAL ARGUMENT OF THEODORE J. BOUTROUS, JR., ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next in Case 11-1450, the Standard Fire Insurance Company v. Knowles.

Mr. Boutrous.

Theodore J Boutrous Jr: Mr. Chief Justice, and may it please the Court:

Congress enacted the Class Action Fairness Act of 2005, CAFA, to expand Federal diversity jurisdiction and to protect defendants and absent class members against the kind of State court class action abuses that are occurring in Miller County, Arkansas.

Congress directed that in calculating the amount in controversy,

"courts shall aggregate the claims of the individual class members. "

That's 28 U.S.C. Section 1332(d)(6), quoted in full at page 2 of our blue brief.

Congress's express focus on the claims of the individual class members in the text of the statute, rather than on the amount being sought by the would-be class representative, is dispositive of the question presented and requires reversal in this case.

Chief Justice John G. Roberts: Would your position be the same if the issue were not the amount sought but rather the substantive claims?

Say there are two different claims the class member -- the class could raise.

One would yield damages of $4,900,000.

The other would yield damages of $10 million.

Do you have the same objection in a case in which the prospective representative only pleads the first claim?

Theodore J Boutrous Jr: Not necessarily, Your Honor.

We are not arguing that here.

There are cases that this Court has decided going back to Barry v. Edmunds in 1886 where there are allegations in a complaint that might, for example, yield a punitive damage claim but it's not explicitly pled, and the courts then look and say: Punitive damages could be recovered here and say the amount in controversy clearly exceeds the -- the necessary amount.

But we're not saying that in every case the courts need to look through and see every claim that could be in play.

Chief Justice John G. Roberts: Well, but you do seem to have a difficulty with your position about how far it goes.

You make the point in your briefs about the statute of limitations question.

In other words, it's not just how much they claim, but where they decide to cut off the statute of limitations and so forth.

It seems to me that it's a bit of a slippery slope if you start saying we're going to look at what the class could recover in deciding whether or not, not simply whether or not this representative is adequate, but whether or not it's below or above, above or below $5 million.

Theodore J Boutrous Jr: That's really how it's been done, Your Honor, from day one.

Under the traditional diversity statute, the courts look and see what's the maximum amount the plaintiff on his or her best day could recover based on the factual allegations in the complaint and the causes of action that could arise from the factual allegations--

Justice Antonin Scalia: Yes, but under the traditional -- you surely don't want us to apply the rules of the traditional diversity statute to this case, because it's clear that under the traditional diversity statute, you -- you can waive excessive damages, right?

Theodore J Boutrous Jr: --That's correct, Your Honor.

The individual--

Justice Antonin Scalia: So you don't want us to apply that rule here.

Theodore J Boutrous Jr: --I don't want you to apply that rule, Your Honor, because that rule applies to the individual who brings his own case in court and can say: I want to come into court and collect less than the amount that would give Federal jurisdiction.

It's much different when Mr. Knowles has come to court and said: I want to represent these other individuals in Arkansas.

Justice Sonia Sotomayor: Well, why doesn't -- why doesn't the normal class certification process protect adequately the absent class members?

First of all, counsel has to prove he or she is adequate.

So doesn't that mean that if they enter a stipulation that is grossly unfair to the class that the judge is not going to certify that case?

Theodore J Boutrous Jr: It wouldn't protect it -- protect from the problems and abuses that Congress was concerned about, Your Honor, and that are occurring here.

Justice Sonia Sotomayor: You haven't answered.

If -- if the court finds the stipulation inadequate for the class, is that class going to be certified?

Theodore J Boutrous Jr: It could be, Your Honor.

And another class representative could come in and could seek more than $5 million.

That's why--

Justice Sonia Sotomayor: And then they would get removed to the Federal court, which is what the statute was intended to do.

Theodore J Boutrous Jr: --But what Congress was concerned about in the text of the statute, and the Senate report makes this very clear, that with all the abuses that occur in the interim, discovery that has nothing to do with the case -- the discovery here goes back 10 years.

The -- this case--

Justice Sonia Sotomayor: Well, discovery vis a vis the certification of the class is going to happen anyway.

My point is that much of your argument in your brief is centered around binding the absent class members.

What I'm getting to is that if the stipulation is grossly unfair, there may not be a class at all, or the Plaintiffs who have claims greater than those in the aggregate might opt -- will get notice and opt out.

And there is due process challenges if a settlement is entered that is so grossly unfair that it violates due process.

So I don't know why the process itself doesn't protect the interests of Congress.

Theodore J Boutrous Jr: --Your Honor -- excuse me.

The Congress was very concerned that cases were being kept in the State courts through abuses and manipulations of the amount in controversy.

It's very clear in the Senate report, Congress talks about this because, for example, in this case the defendants can never get a class certification hearing in Miller County.

They could never get a ruling on the merits.

And in the meantime, the kind of abuses that Congress was concerned about, the lack of the Rule 23 protection, the application of those standards to protect the class members--

Justice Elena Kagan: You say what Congress is concerned about and point to the Senate report.

You know, usually we look to the text and the text makes very clear that Congress was concerned about many things and it did many things.

It got -- it really -- it raised the matter in controversy threshold.

It eliminated the Zahn anti-aggregation rule.

It eliminated the complete diversity requirement.

It eliminated the one-year limit on removal.

Here's one thing it didn't eliminate.

It didn't eliminate the St. Paul master of your complaint rule.

So I guess where in the text do you see this?

You point to claim, the word “ claim ”.

Is that the only thing that you are resting on in the text?

Theodore J Boutrous Jr: --Your Honor, I think the text does take away the St. Paul rule that an individual can control what he seeks and go where he desires and do what he wants, or she, because it points to the claims of the individual class members and the text Congress could expect--

Justice Elena Kagan: Well, if I said to you, Mr. Boutrous

"Is your claim for over $100,000? "

what would you think I mean?

Would you think I mean some sort of abstract version of the best claim you could bring, or would you think I mean what I demanded, what I asked for?

Theodore J Boutrous Jr: --Well, Your Honor, I would think that I would answer you that it's worth as much as I can possibly obtain in court if I was seeking to adequately represent the class.

But in terms of valuing the claims here--

Justice Elena Kagan: Do you think that the word “ claim ” is not -- when you say Joe made a claim for $100,000, a claim is not what he asked for, but is instead some kind of law professor's view of what the best thing that he could have asked for?

Theodore J Boutrous Jr: --Your Honor, we've cited the Tohono O'odham Nation case, where the Court interpreted the word “ claim ” and said when a statute uses the word “ claim ” regarding claims that have not been brought, it's the operative facts and the right to recovery, not the demand.

That's exactly what we have here.

Justice Ruth Bader Ginsburg: Mr. Boutrous, I thought at least as an alternative argument, you're saying: The statute itself is silent.

It doesn't deal with this question of amount in controversy.

However, the individual, the named plaintiff, who has said, I'm not going to seek more than the $5 million, cannot speak for the members of the class who are absent.

He can't stipulate that they will take under 5,000.

I thought that was the central part of your argument, not based on the statute itself, but on the notion that a named plaintiff, unless and until he is -- he is certified to represent the class -- doesn't represent them.

He can represent himself, but he can't bind the people who -- who have not been certified as part of a class.

I thought that was part of your argument.

Theodore J Boutrous Jr: Yes, Justice Ginsburg, that's absolutely right.

And because the statute focuses on the claims of the individual class members, Mr. Knowles has no power to affect those claims.

He's not the master--

Justice Elena Kagan: But he doesn't have power to affect those claims before the certification has happened.

Theodore J Boutrous Jr: --Exactly.

Justice Elena Kagan: Before the certification has happened, they can do whatever they want.

They can bring their own claim for $6 million.

And that's why Smith v. Bayer, which you so happily rely on, does not have much to do with this case.

Smith v. Bayer is the question -- can a person be precluded by a judgment when that person was not part of a class.

There's no question that this person is going to be precluded.

This person can go do whatever he or she wants before class certification and judgment.

Theodore J Boutrous Jr: Your Honor, that's -- Smith v. Bayer says the plaintiff can't bind the class.

Plaintiffs have now conceded that.

So what we have here, the district court found on an uncontradicted record that the claims of the individual class members exceed $5 million.

That means there's Federal jurisdiction.

Back to Justice Ginsburg's point, that is exactly our point, Your Honor.

A named plaintiff cannot affect or jeopardize or undermine the claims of absent individuals.

Justice Stephen G. Breyer: This is what I -- could you go back--

Theodore J Boutrous Jr: Yes.

Justice Stephen G. Breyer: --to Justice Kagan's first question?

I was looking at the words of the statute.

And if I look at 1332, which has been on the books a long time, it says:

"The district court shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest, of costs, and. "

--et cetera, okay?

Then I look here and it says:

"The district court shall have jurisdiction of any civil action in which the manner in controversy exceeds the sum or value of $5 million, exclusive of interest and costs. "

et cetera, okay?

So the words seem identical.

Now, in respect to the first, we know that a lawyer can file a binding stipulation that says, I don't care what this is about, I am not asking for more than $75,000, and the Federal court does not have jurisdiction.

Given that's true in the first statute, and given that the second statute is almost identically worded, at least in that part, why can't you do the same thing with the $5 million?

And it can't be the words I quoted that stops him from doing it, so what is the word that stops him from doing it?

Theodore J Boutrous Jr: Your Honor, it's the other part that is extremely important, section 1332(d)(6).

You were quoting from section 1332(d)(2).

Unlike section 1332(a), Congress in CAFA explicitly added subsection (6), which says

"In any class action, the claims of the individual class member shall be aggregated to determine-- "

Justice Stephen G. Breyer: As to what that looks like, “ shall be aggregated ”, again from the language, is it simply to make certain that Zahn does not require the individual thing to approach -- to count.

In other words, you aggregate rather than just looking at the individual members, which is Zahn, which has nothing to do with the issue before us.

Theodore J Boutrous Jr: --Well, Justice Breyer, Congress could have said we're just getting rid of Zahn, or it could have said the aggregate amount being sought by the named plaintiff is going to take control.

But if you took that away--

Justice Stephen G. Breyer: No, they rarely pass a statute that says: Let's just get rid of case X.

Normally they look to the holding of case X, and then they pass the statute that says the opposite.

So the holding of Zahn was that you could not aggregate the individual members' claims in a class.

So to get rid of Zahn, what we do is we pass a statute that says you can aggregate.

And indeed, nobody objects here to the aggregation.

It's the total amount of the claims being limited by a stipulation that is the issue here, and that's why I had trouble finding your argument in the word “ aggregation ”.

Theodore J Boutrous Jr: --It's really not the word “ aggregation ”, Your Honor.

It's the word “ individual ” and it's with the word “ claims ”.

If Congress had done what you are suggesting, Justice Breyer, it could have said the aggregate amount being sought by the named plaintiff, or the total amount, or the demand of the plaintiff.

In the Venue Clarification Act, which was passed in 2011, which applies to 1332(a), Congress said the sum demanded will control.

But here, to protect the legitimate claims, Congress defining, I urged the Court--

Justice Elena Kagan: Mr. Boutrous, that form of argument -- Congress could have said -- does seem to me to be much worse for your position.

If Congress had wanted to get rid of the St. Paul master of your complaint rule, it could have said: We are getting rid of the St. Paul master of your complaint rule.

But you're trying to find it in a position which is really an anti-Zahn position, not an anti-St.

Paul provision.

Theodore J Boutrous Jr: --Your Honor, it really goes to a fundamental issue of what a class action is.

If Mr. Knowles had come into court himself on behalf of himself, and Zahn -- in St. Paul, the money quote, if you will, in St. Paul says

"if he desires to go to State court, he can limit his recovery. "

Mr. Knowles--

Justice Elena Kagan: Let's get back to the Chief Justice's question, because there are a thousand ways in which we let the named plaintiff prior to certification construct a case, and then we ask, as Justice Sotomayor said, later we ask, is the way he's constructed a case adequate or not, and we allow him to go forward or not based on that.

But he gets to decide whether to seek damages.

He gets -- at all, or whether he only can seek injunctive relief.

He gets to decide which claims to bring, trespass or negligence.

He gets to decide how many years' worth to ask for.

He gets to decide which defendants to sue.

All of these things are going to have an effect on -- on the amount that's -- that's being asked for.

And yet in all of these ways, we allow for -- maybe you're telling me no -- do we stop the named plaintiff from doing all -- all of those things, too?

Theodore J Boutrous Jr: --We don't stop them from doing all of those things, Your Honor.

And there are certain things -- we -- we agree that the complaint controls a great deal -- the factual allegations.

Justice Ruth Bader Ginsburg: What about specifically the question that the Chief asked about time?

You did argue in the district court that these plaintiffs could have specified a 5-year time period, in which case it would be clear that the amount in controversy was satisfied.

But instead, they took a 2-year period.

Can we take that also into account in determining the amount in controversy, that the complaint could have been enlarged to include 5 years instead of 2 years?

Theodore J Boutrous Jr: Your Honor, I believe you could.

And I believe that the Court's decision in Hertz said if there is a sign of manipulation that is meant to thwart jurisdiction or affect jurisdiction, the Court can look through that to look to competent proof of what the actual facts are.

And I think that what has happened here is the plaintiff's lawyers, in addition to these stipulations, they're slicing and dicing the classes up into pieces to thwart jurisdiction and manipulate jurisdiction.

Chief Justice John G. Roberts: Your approach leads to particularly perverse results.

You're at the position of arguing that, you know, they are seeking less than $5 million, but we're responsible for a lot more damage than that.

And of course, you don't concede it, but you do say: If in fact we're liable, the damages are going to be a lot greater.

I assume that admission could be used against you under principles of judicial estoppel.

Theodore J Boutrous Jr: It's an unusual position to be in, Your Honor, it's not quite what we're arguing.

We're arguing that under the rules for judging the amount in controversy that this Court has enforced, the lower courts have enforced these for hundreds of years, and it's that you look at the complaint and say what's the maximum amount the plaintiff can get on their best day under the claims they've pled based on the facts and the proof and the evidence.

Here, the uncontradicted evidence, put aside the statute of limitations question or any other claim they could have brought, it exceeds $5 million.

The plaintiff never--

Justice Samuel Alito: Is there a difference between what you're--

Justice Sonia Sotomayor: But you -- you chimed into this discussion--

Chief Justice John G. Roberts: I'm sorry.

Justice Sonia Sotomayor: --I'm sorry.

Chief Justice John G. Roberts: Let's go by seniority.

Justice Alito.

Justice Samuel Alito: --Is there a difference between what you are advocating and the approach that's now taken in the General Removal Statute as it's been amended recently under 1446(c)(2)?

So there as I read it, the amount demanded in the complaint is not necessarily controlling.

A case can be removed even if the amount demanded in the complaint is below the jurisdictional threshold and then the defendant can prove that the real amount involved exceeds the jurisdictional threshold.

Theodore J Boutrous Jr: --That's -- that's exactly right, Your Honor.

There's greater leeway under CAFA because under 1332(a) and 1446, there are certain standards that need to be met to allow the defendant to put on proof.

But that's how it's always been.

The defendant can then put on evidence and say this is the actual amount in controversy.

And here, the only way the plaintiff got around it in the lower courts was to argue that the stipulation was binding, Justice Kagan, that was their argument below and that's what the district court found.

It found that the stipulation was binding on the class.

Justice Elena Kagan: It's binding if the class is certified and the case proceeds to judgment.

It's not binding on the absent class members prior to certification and prior to judgment.

Theodore J Boutrous Jr: And that means that jurisdiction in the Federal courts exists, because we judge jurisdiction at the time of removal.

And at the time of removal, there was no binding limitation on the recovery that could be obtained, undisputed facts showed that that exceeds $5 million when the claims of the individual class members are aggregated.

Justice Elena Kagan: I think I don't understand that, Mr. Boutrous, because what you have, given that this is a State which says that these stipulations are binding if it proceeds, if there's certification and if it proceeds to judgment, you have a cap of $5 million.

You cannot be charged more than $5 million under this State's law, if this case ever gets to judgment.

Theodore J Boutrous Jr: The problem, Your Honor, again and this isn't just me.

This is what Congress said in its findings.

In -- in the text as you noted, it eliminated the the five pillars of restrictions and diversity jurisdiction because in State courts, the courts aren't applying Rule 23 like standards.

They're not doing it in Miller County.

They're not even allowing class certification to occur or to be heard, and instead this discovery is being taken.

Here, the limitations period is limited to two -- or the class period is limited to two years.

The discovery that was served with the complaint goes back to 13 years.

So--

Justice Samuel Alito: Even if this case were handled on remand to the Arkansas Supreme Court exactly like a Federal class action, I don't understand how absent class members would ever be able to -- to determine whether by failing to opt out, they had compromised part of their claim.

I don't see how, even if they're notified that there's a $5 million cap -- and I don't know that Rule 23 requires that, but suppose they're notified of that.

They can't tell whether by remaining a member of the class their claim is going to be compromised at all.

It would depend on lots of different things, including how many members are in the class after it's certified.

And that's something they can't know.

Theodore J Boutrous Jr: --That's -- that's exactly right, Your Honor, and that's something page 3a of the addendum to our opening brief, the finding--

Justice Ruth Bader Ginsburg: Your concern is that the -- that the certification -- if the certification would occur in the Federal court, that's one thing.

But you're saying that the named plaintiff can't stand for the entire class when we know that -- that the certification question, if the stipulation is binding to prevent removal, it's going to be the State court that's going to look into the adequacy of representation and whether the stipulation binds all members of the class.

That's your whole concern.

If the Federal court made that determination, I think you wouldn't be here.

Theodore J Boutrous Jr: --Well, that's what Congress was concerned about, too, Your Honor.

It was concerned that the State courts weren't applying standards of uniformity in these class actions that are affecting interstate commerce and that Rule 23's protections and standards should apply.

Justice Elena Kagan: Well, Congress was concerned about suits of over $5 million.

And -- and the question here is, is this a suit of over $5 million.

Now, if it is a suit over $5 million, a State court is bound by the due process clause and a State court is going to find, look, you're just giving these plaintiffs' claims away.

We're not going to allow you to do that.

You're not an adequate representative.

On the other hand, in a case like this where it's $5,024,000 and it only gets there because you've added on one and a half million dollars of legal fees, the Court might very well say you are an adequate representative, go for it.

Now, usually we don't question State court judgments of that kind.

Why should we do so here?

Theodore J Boutrous Jr: We don't have a State court judgment yet, Your Honor, that -- and we judge the removal issues and the amount in controversy at the time of removal.

And $5 million is $5 million, Congress drew the line there.

And as Justice Alito was pointing out, the notices to the absent class members, Congress -- I was about to say 3a of the addendum to our blue brief, those are the findings that Congress put into the public law, number -- letter C: Confusing notices are published that prevent individuals from exercising their legitimate rights in -- and enforcing their legitimate claims.

And it would be ironic in the extreme if a -- where a statute was enacted to protect -- and this is in the findings --

"legitimate claims of absent class members. "

and to allow them -- the cases to be in Federal court, if this Court were to hold that a named plaintiff who doesn't represent those people can come into court and -- and say we're not going to seek the full amount of those claims in order to keep the case out of Federal court.

That would be totally contrary to Congress's intent.

Chief Justice John G. Roberts: Well, you're assuming that it's a bad thing for the class members to have their claims limited.

But it may well be a good thing for them to have their claims limited if that gets them into what would reasonably be regarded as a more sympathetic forum.

Theodore J Boutrous Jr: I'm not making a judgment on that point, Your Honor.

It may or may not be, and the Plaintiff makes this point.

Maybe it's better to be in State court.

But for removal purposes only, going back to just the pure analysis, the question is does the amount in controversy when the claims of the individual class members are aggregated exceed $5 million?

It's undisputed that that's true.

The only basis for saying it doesn't exceed that amount is the stipulation, which everyone now agrees has no binding affect whatsoever.

The plaintiffs also argue, concede in their brief that--

Justice Elena Kagan: Mr. Boutrous, as you think -- you have to be careful about two different uses of the word “ binding ”.

It has no binding effect right now on an absent class member; they can go out and bring their own suit.

If the -- the named plaintiff is found to be adequate and the suit goes forward and goes to judgment, then the stipulation does indeed have binding effect and -- and you have not been exposed to more than $5 million.

Theodore J Boutrous Jr: --But the question, Your Honor, is, is it binding in this case on anybody or anything other than Mr. Knowles?

Justice Elena Kagan: It's binding -- it is binding on everybody if there's a finding of adequate representation and if this goes forward as a class action; then it's binding and you haven't been exposed.

Theodore J Boutrous Jr: But, Your Honor, again, under the jurisdictional approach -- and Your Honor cited St. Paul.

St. Paul says that if -- once the amount in controversy has been established to exceed the amount, here $5 million, it's on the burden of the parties seeking to oust jurisdiction to show to a legal certainty that the amount will not go over $5 million.

Your questions and the plaintiff's brief concede it could well go over $5 million if this class representative is found inadequate, if another person is appointed to be the class representative, and therefore, there is Federal jurisdiction.

That's the rule that plaintiffs say should apply.

They don't even -- he does not even try to suggest that it's legally impossible that the amount might go over $5 million, and that's the problem.

It's going -- it's an amount that is over $5 million and these cases, the -- the stipulation is meant to just keep the case in State court, contrary to Congress's intent and I will--

Justice Ruth Bader Ginsburg: What do you do -- in the language in 1332(d)(1)(D), the term “ class members ” means the persons, named or unnamed, who fall within the definition of the proposed class, the proposed class, and that's what we have here.

Theodore J Boutrous Jr: --That's -- that's what we're using, Your Honor, for our calculations, the proposed class, including the narrower time frame that we think is a manipulation, but nevertheless we've used that and the amount exceeds $5 million.

And if I could reserve the rest of my time, Your Honor?

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Frederick?

ORAL ARGUMENT OF DAVID C. FREDERICK ON BEHALF OF THE RESPONDENT

David C. Frederick: Thank you, Mr. Chief Justice, and may it please the Court:

Our position is that the stipulation is binding throughout the

"civil action filed by the putative class representative. "

I want to focus on the words “ civil action ” because there has been no civil action filed by any absent class members.

The only civil action that the district court is being considered for jurisdiction is the civil action that has been filed by the putative class representative.

So if the class is later not certified, the stipulation would only bind the putative class representative.

If the class is certified--

Justice Anthony Kennedy: Are you saying that (6) doesn't apply at this point?

David C. Frederick: --No.

Justice Anthony Kennedy: Because (6) talks about class action, and it says the duty of the district court--

David C. Frederick: What--

Justice Anthony Kennedy: --is to aggregate the claims of the individual class members.

David C. Frederick: --And what 1332(d)(1)(B) does, Justice Kennedy, is define class action in terms of the civil action that was filed so long as it was filed pursuant to Federal Rule 23 or an equivalent state statute.

What the complaint here does in the prayer for relief and in paragraph 11 of the complaint is to say that this civil action is not going to be worth more than $5 million.

Chief Justice John G. Roberts: And you -- I assume you agree that if at the adequacy hearing, if there ever is one, and it's demonstrated that well, in fact, the amount in controversy is $10 million, then you would be obviously not an adequate representative.

David C. Frederick: Well, that would be one outcome that a state court could come to.

A second outcome could be that at that point, if an alternate class member comes in and files an intervened complaint and says: This case really is worth $10 million, at that point section 1453(b) applies and they can remove to federal court.

Justice Elena Kagan: And they can remove no matter when that happen; is that right, as a result of CAFA, because CAFA took off the one year limit?

David C. Frederick: That's correct.

Justice Antonin Scalia: Or the state court could find the claim is worth a lot more than 5 million but it's worth that amount to be in this generous court for these generous juries.

And you're really not harming these absent plaintiffs because they ought to want to be here.

We've got juries and very favorable judges.

Couldn't they find that?

David C. Frederick: Well, what's very clear, Justice Scalia, is that Congress was not attempting to address the adequacy of class representation issue where it decided this statute and enacted it.

Justice Antonin Scalia: I understand it, but -- but I'm just addressing your point which you blithely say, if the representation is inadequate, if indeed it's worth a lot more, that will be handled.

Not necessarily.

The state court could find, and I suspect this state court would find, that it's worth the money to be in state court.

David C. Frederick: A putative class representative makes all kinds of strategic judgments about how best to maximize value for his clients and for the class.

And that entails judgments about whether to assert various legal theories here.

And, Mr. Chief Justice, this goes to your very first question, this complaint renounced a claim to punitive damages.

But there are some cases out of the Tenth Circuit, the Frederick case, not associated with me, and in the Seventh Circuit, the Back Doctors case, they say essentially if there is a claim for punitive damages you have to make an estimate for amount in controversy purposes.

As I understand their theory and as they express it on page 11 of the reply brief, it's very uncertain as to a case like ours where we have renounced a claim to punitive damages whether or not a federal district court is, nonetheless, supposed to take that into account.

Chief Justice John G. Roberts: What if you had a case where a lawyer brings an action in Miller County and says: I want to represent the class of people with these claims and these claims, whose names begin with A to K.

It turns out that's $4 million.

And in the next county, at the same time, he files a case saying, I'd like to represent these people whose names begin L to Z.

In each of those cases, it's $4 million.

I take it you don't have any objection to that?

David C. Frederick: Well, my objection would be at the class certification stage, Mr. Chief Justice, where the requisite of locality, numerosity, the contrivances that are being done are -- are going to whether or not those represent -- representatives are adequate.

It does not speak to federal jurisdiction--

Justice Stephen G. Breyer: That's the same question.

Chief Justice John G. Roberts: But is a counsel who proceeds on that basis, is there any reason to question his adequacy, let's say he's fully representing, bringing all the claims and all the damages.

He's just decided to break it up from A to K.

Somebody from L is not going to say: Well, he's inadequate when he's representing him just because he could have represented everybody in the other action.

David C. Frederick: --I misunderstood, Mr. Chief Justice.

I think that for federal jurisdiction purposes, the Court has always had -- that kind of legal strategy is perfectly appropriate under the master of the complaint--

Justice Stephen G. Breyer: If so, this is just a loophole because it swallows up all of Congress's statute, which is what their problem is, all you have to do, even if you were less obvious than the Chief Justice's example, what you do is you -- you file a complaint, you say it's for $4,900,000; in fact, it's worth 10 million.

But you inform people, unlike Justice Alito, you figure a way around his problem, you keep them informed, and you say: It's getting close, getting close.

And once you are up to $4,800,000, the others get the word: Stay out of it.

And once they stay out of it, you go ahead with your action and then those that stayed out of it becomes the subject of a second action.

And if it's for 50 millions, then you have ten actions and then you have 20.

So, in fact, all that is required is a few extra pieces of paper that will soon become standardized, and a lot of postage stamps.

And we have 30 or 40 or $50 million cases being tried in whatever counties Congress liked the least.

I gather they're some in Arkansas.

But that seems to be all behind Justice Scalia's and the Chief Justice's questions, and I would like to hear a pretty complete answer on that.

David C. Frederick: --Sure.

Justice Breyer, if you look at the report that went along with the statute, what Congress was most concerned about was the situation where each individual class member would not be able to exceed $75,000 but there might be a million of them.

And so you might have a million class members, each of whom had a claim for $50,000, and there was no way to get that to federal court because of the Zahn non-aggregating rule.

Congress was not concerned about having the master of the complaint altered in this class process; and, in fact, Congress rejected a proposal that would lower the amount in controversy for class actions to $2 million because the congressional budget office said: If you keep it at that low, virtually every class action will be in federal court and Congress has not appropriated additional funds for the federal courts to deal with all of the class actions that would occupy this space.

Chief Justice John G. Roberts: Counsel, you realize, of course, you are on pretty thin ice.

You are talking about a Senate Report and now you are talking about proposals that weren't enacted.

Your friend on the other side focuses on the statutory language which tells you how to find out how much is at stake.

David C. Frederick: And I'm telling you that his focus on the word “ claims ” is insufficient because there are no claims by absent members until there is a civil action that has been filed.

And that is why if you look at the definition of a class action, it is a civil action that is filed pursuant to one of those rules.

Justice Samuel Alito: Under your argument, the amount that's demanded seems to be totally meaningless.

Here, we are told that the real amount is only slightly above the $5 million figure, but I don't think that makes any difference.

So let's say that what was -- you stipulate you are not going to get more than $5 million, but really the value of the claim is $50 million.

And you say that's perfectly okay.

It will be dealt with later when the case -- after the case has been remanded to the -- to the state courts.

Isn't that right?

So the $5 million is just -- just means nothing.

David C. Frederick: No, the 5 million--

Justice Samuel Alito: In practical terms.

David C. Frederick: --Well, Justice Alito, it means we have to determine and the district court has to determine whether or not the 5 million has been satisfied on the basis of the well pleaded complaint and an aggregation where, as a factual matter and as a stipulated matter in paragraph 11 of the complaint, the class representative here said: This case is not worth more than $5 million.

And we know that that's true because even under their estimate of all of the class members in the state of Arkansas, the damages only equal about $3 million.

And so--

Justice Samuel Alito: Okay.

But does that matter?

We assume, I think, that the real amount is a little bit over $5 million.

Suppose the real amount is 6 million or 7 million, 8 million, does it matter where along that continuum the real amount falls?

David C. Frederick: --Not so long as there is a binding stipulation that says so long as this civil action is in place, it is not going to be worth $5 million.

Justice Stephen G. Breyer: But what you said then in response -- we're on the same subject, and I'm drawing the conclusion from what you say that yes, we've found a way around this.

And what we're going to do is we will divide our $25 million class action into six subsidiary actions and proceed exactly the same merry way.

And we do that by means of stipulation.

Now, your words in the statute do favor that, in my opinion, at the moment.

But the purpose seems to strongly cut the other way.

And I do see a way to go the other way, in that you could say, given the purpose of this, the words do mean something different, and they do mean you should aggregate the real value of the real amounts that the class is likely to have.

Now, it's capable of that reading, and the virtue of that reading is that it would stop what looks like, from what you're saying, a mechanical method of avoiding the purpose of the statute.

I say that explicitly because I really want to make it as much as possible that you will focus in on what's a response to that.

David C. Frederick: Yes.

Well, Justice Breyer, Congress could have addressed any number of those kinds of issues with the specific terms that it used, but the well-pleaded complaint rule and the master of the complaint rule is a very subtle part of our diversity jurisdiction.

And that is so because we want these jurisdictional issues to be simple, not complicated.

Under their approach, they would take all the conceivable legal theories that might be brought over a conceivable period of time, and ask the district court to make very nuanced judgments about -- what--

Justice Anthony Kennedy: But what you're saying in your answer to Justice Breyer -- and I don't think you've really addressed his point -- that the statute number 6 says “ shall aggregate the individual claim ”.

What you're saying is that the simplest thing is to evade the statute.

Evasion is simple.

And therefore, we still use that approach, because the simplest is the best.

That just is not responsive to his question.

David C. Frederick: --Well, Justice Kennedy, let me try it this way, which is that for the large case, the one that I gave in my hypothetical where there are a million class members, and each of them has a claim of $50,000, we know that prior to CAFA, that case was staying in State court because of this Court's Zahn rule.

But that might be a nationwide case.

It might be worth hundreds of millions of dollars in damages.

That was the kind of problem that Congress was trying to get at.

But the case where there's a stipulation that actually might be meaningful, where the amount in controversy is debatable as to whether it's really $5 million, that's the kind of case where jurisdictional simplicity ought to encourage--

Justice Ruth Bader Ginsburg: But your theory doesn't depend on it being just a little over $5 million, the theory would hold whether it was $8 million, $9 million.

David C. Frederick: --That's correct, because -- and Justice Ginsburg, I'm sorry to interrupt you, but that's precisely because we want the ability to make legal judgments and strategies to reside in the person who's bringing the complaint.

We don't want--

Justice Ruth Bader Ginsburg: Even though you admit in your brief -- you agreed that the stipulation -- I didn't think that this is what you said on page 53, the stipulations that have no effect on absentees, until the Court finds at the certification stage that the stipulation was made in good faith and doesn't render the named plaintiff an inadequate representative.

But we have to judge removal at the time removal is made, and at that time, there is no determination of class.

So at the removal stage, the stipulation is inoperative as to the non-named class members.

David C. Frederick: --Not where there are allegations about what the aggregated damages are about.

That's why -- to address this in the language of the civil action, those absent class members haven't filed any lawsuit.

We don't really know what claims they might conceivably bring if they were to be hypothesized.

What we do know is that there is a civil action, it has been filed by a putative class representative, that putative class representative in good faith, the district court found had acted in good faith in stipulating to a lower amount than $5 million -- and the question is should that be given legal effect, where everybody knows it will be binding if the class is certified, and it will be binding on the class representative if the class is not certified.

Justice Samuel Alito: Suppose this were an individual action, and the amount is -- an individual diversity action -- and the amount that is pled is under $75,000.

The defendant still can remove the case and prove that the amount is really higher than that, because the practice of the State in question is to allow a recovery that is over $75,000.

So why shouldn't the same approach apply here?

David C. Frederick: Well, you were referring to a statute, Justice Alito, that was recently enacted, in which it does say that the presumption shall be that the amount pleaded in the complaint is subject to disproval.

But that's reversing 200 -- well, 100-plus years of settled removal law, after the reforms of the 1870s created the removal jurisdiction the way it is more currently constructed.

And so in that interregnum between the 1870s and that statute passed just a couple of years ago, the rule was well-settled that the individual case pleading amount was fine.

And under St. Paul Mercury, if there was a stipulation that had been filed contemporaneously with the complaint or prior to removal, that that would be given legal effect.

Here, the stipulation was filed with the complaint.

There is no doubt that this was done in good faith.

The district court found that -- and I don't think that's really an even arguable proposition here, where they were asserting a 40 percent attorney's fee on this -- and so really the question is, where you have an aggregated estimate, should that be given legal effect.

Justice Samuel Alito: Wouldn't it be perverse if the rule were that in an individual action where a plaintiff is simply stipulating how much he or she is demanding -- individually -- which the person can do, it's possible to look behind that number.

But in a class action where the named Plaintiff is purporting to make a stipulation on behalf of absent class members as to whom the named plaintiff at that point has absolutely no authority, you can't look behind the number--

David C. Frederick: Well, as a policy matter, we might have a debate about the various virtues of that, but they were not enacted in the same piece of legislation.

So what we do know is that for CAFA, Congress had not adopted the rule that you're positing.

Nonetheless, we do not attempt to argue that they have no basis for making arguments about amount of controversy when they remove, but it is subject to the rule that a binding stipulation shall be given binding effect in the civil action that has been filed.

And if that is later proved to be inadequate--

Justice Ruth Bader Ginsburg: How is it binding when you said in your brief it doesn't bind the unnamed class members?

David C. Frederick: --Justice Ginsburg, this is important that you and I understand each other on this point, because it is binding in the civil action filed for all purposes.

So, whoever is covered by that civil action will forever be bound by the $5 million stipulation.

What we do not know is who will be members of that class until the certification hearing is done.

Whoever ends up being covered by that civil action will forever be bound by that stipulation.

That is what the district court knows.

Justice Elena Kagan: Can I ask you this, because I have been trying to figure out exactly what Mr. Boutrous is concerned about?

And one thing he might be concerned about is that, notwithstanding that the class has really plans for $20 million, the thing is going to be certified for $5 million, and all these absent class members are -- are being deprived of something meaningful to them.

But that's something which -- you know usually, we assume that State court judges will do their jobs, will pay attention to the Constitution, will apply adequacy of representation standards that come from the due process clause.

So that seems like a strange thing to worry about in interpreting this Federal statute.

The other possibility is that you might be worried that this stipulation won't be really as binding as you say, that in a case in which there is an adequacy of representation determination made, the class goes forward, and then things work out and it really looks like all these absent class members are going to get -- you know, badly treated.

He's going to tear this stipulation up or do something like that.

And it's going to be way down the line.

And why should we allow that to happen?

David C. Frederick: Well, for two reasons, because there are protections that are in the statute that protect both defendants and absent class members.

And the protection for the absent class members is it that if that stipulation is insufficient to adequately represent their interests, the district court, the trial court and State court will not certify the class.

Justice Elena Kagan: But this is -- he's done the certification, now it turns out that the certification was wrong, that in fact, these claims are worth a good deal more.

And he says, I can't in good faith allow all these people's claims to be adjudicated for this amount of money when I know they're worth five times as much.

David C. Frederick: And -- and as a matter of judicial estoppel, what is absolutely clear in every State that I am familiar with is that it follows this Court's basic formula in New Hampshire v. Maine, which looks at whether or not a change in position would prejudice the interests of the other party if the Court had relied on the original position of the litigant, and that will estop that person.

Now, it may -- it may well be that there are due process issues associated with class representative and the adequacy of a class representative is a continuing concern throughout a litigation precisely because of due process concerns.

Chief Justice John G. Roberts: Another thing he might be worried about is that if this actions is allowed to proceed, although on its face it's worth $4 million, they're going to have to make a determination whether to settle for a particular amount or not.

And if they make a determination that they've got to settle for whatever it is, 20 -- you know, $20 per class member, that is going to set the limit for other classes, including the class members who opt out of this action, the class members from Missouri.

And the point is that, for a variety of reasons, that this gives extraordinary leverage to the individual class representative of a sort that -- precisely the sort that Congress was worried about.

David C. Frederick: Actually, I think Mr. Chief Justice, with all due respect, the economic incentives are completely reversed, because if a class representative is bound by a stipulation that this case is not worth than $5 million, the bidding starts at 5 million, but it goes down, it doesn't go north, because the defendant knows that no matter whether we go to trial or not, this case, this civil action is only going to be worth $5 million.

Chief Justice John G. Roberts: It's going to be worth a lot more, because if you go to trial, you're going to have a judgment that they should have been giving the general contractor whatever--

David C. Frederick: GCOP.

Chief Justice John G. Roberts: --pickup it is in every case.

And so that is going to be extremely valuable.

It's going to be worth a lot more -- but the downside, it's going to be a lot more than $5 million.

David C. Frederick: Well, certainly, Mr. Chief Justice, Congress could have drafted a statute that allowed for the removal of every State class action and dealt with that issue if it was deemed appropriate to have Federal courts decide all class actions, but that wasn't the statute that Congress enacted.

And Congress also could have expressed concerns and difficulty with this idea of having the Master of the Complaint Rule applied in the class action context, but it didn't address that either.

And so when Congress is only addressing a very narrow problem of dealing with the non-aggregation principle so that class actions that were worth more than $5 million would be allowed to be removed to Federal court, I don't think it would be appropriate for the Court to try to infer a larger set of--

Chief Justice John G. Roberts: It's very difficult -- one reason, it's very difficult to speculate about Congress, what they speculate about what they would have intended.

Presumably, they may not have thought about the idea that there will be class actions worth a lot more than $5 million, but the plaintiff's lawyer will only ask for less than $5 million.

David C. Frederick: --Well, these kinds of stipulations are well known and in fact, as we quote on, I think it's page 5 of our brief, Congress was aware of factual stipulations.

They concede in their reply brief that it's perfectly fine for their to be a joint stipulation between the putative class representative and the defendants.

And yet, I would think that that would raise even more problems and concerns by you, because that would lead to the kind of collusion between a putative class representative and the defendant without knowing what the other interests of the absent class members are.

And so here, where a good faith effort is made to quantify the aggregate claims and that good faith effort leads to the stipulation that the case will not be worth more than $5 million, the interests of jurisdictional simplicity, the interest of fairness to the class members, the interest of understanding what the civil action is all about so that the defendant is on notice about what will be claimed in this civil action are all things that should be given respect.

Justice Stephen G. Breyer: What about -- what about, has anyone thought of this -- I hate to bring up sort of a new idea, but somebody may have thought of it.

Imagine we're now in the Federal district court.

And the Federal district court reads the statute because the case has just been removed.

And he says, you know, this -- this case would be worth a lot more than 5 million were it not for that stipulation.

And let now me look at that stipulation.

That stipulation is a part of some, let's call it quote “ monkey business ”, end quote, which you will resist that, but I mean by that to -- to encompass the kinds of things we've been talking about, that there are going to be five similar class actions, that they're going to take the people A through K, that they're going to -- anything like that.

And he says that's not under this statute the kind of stipulation that Congress meant to bar my consideration of the $5 million.

So if it's a manipulative stipulation, whatever that might be, it doesn't bar me as the district judge from aggregating up to -- beyond 5 million, but if it's not manipulative, fine.

Has there -- has there been any thought on that kind of--

David C. Frederick: Well, there are two tools that -- that we describe in our brief and that I think are reasonable ways that Federal courts address these matters.

One is to look at whether or not it violates Rule 11 and there are -- there's a frivolous assertion of a stipulation, which Federal district judges deal with Rule 11 motions all the time.

The second is the concept of good faith, which is what St. Paul Mercury addressed when it said that a stipulation for less than the jurisdictional amount if made in good faith is something that will be treated as dispositive for jurisdictional purposes.

Justice Ruth Bader Ginsburg: Justice Breyer's hypothetical would not come up on your theory, because the Federal court would never get the chance to make that determination.

It would be made in the State court.

David C. Frederick: No.

If I'm understanding Justice Breyer's hypothetical, it's at the amount of controversy stage and so there is litigation at that stage and the defendant presumably would bring to the judge's attention, I think this is being done in bad faith and I have these arguments for why this is deceiting -- deceitful, misleading, et cetera.

Justice Ruth Bader Ginsburg: So would that include the I'm suing for two years when I could have sued for five?

David C. Frederick: No, I don't think so, because there are lots of tactical reasons why litigants might want to limit their claims or might have a good faith basis for saying, I've only investigated this time period, I do not have a good faith basis for asserting claims in a different time period that I have not investigated that does not serve the court.

Justice Stephen G. Breyer: --Well, but there might be -- there might be ways of working with this notion, a little risky from your point of view, but there might be ways of working with this good faith notion so that some -- there would be some power in the Federal district court to set aside certain stipulations which were used for manipulative purposes and what definition that manipulative is something that isn't clear to -- to me at the moment.

David C. Frederick: Well, the -- the -- the notion that I have distilled from St. Paul Mercury and the idea of good faith and looking at cases that have addressed bad faith, which is obviously the converse of good faith, is whether or not there is something misleading or deceitful in the way that this stipulation would be framed.

And I think that that is as good a guidance as I can give you absent briefing.

Justice Sonia Sotomayor: But it would never involve a judgment that a claim is really worth $50 million and just to defeat this statute, it's being limited to 5.

David C. Frederick: There -- there could be a strategic reason, Justice Sotomayor, why--

Justice Sonia Sotomayor: Well, the only strategic reason according to your adversary is they want to stay in State court.

David C. Frederick: --Well, but there are reasons, because in Arkansas, for instance, there is a direct appeal for the State supreme court.

We could finish this case in many fewer years than it would take to wind its way up through the Eighth Circuit and up to this Court.

That is one salutary reason.

The second is we're talking about State law claims that are breach of contract claims for a State-regulated industry.

The State insurance board would be looking at how State insurance is done here.

So there are very good reasons why a -- why a lawyer would want this case to be in State court and not want it to be removed to Federal court wholly apart from the ad hominem attacks that they make about Miller County which were not brought to Congress's attention and in fact are false.

As we have put into amicus briefs, it is false.

The arguments that they talk about abuse involve all cases that predated CAFA.

Chief Justice John G. Roberts: Why did you decide to file in Miller County?

David C. Frederick: Because these are Texarkana lawyers who filed on behalf of all Arkansas residents and Texarkana, Arkansas is a jurisdiction in Arkansas.

Justice Sonia Sotomayor: Mr. Frederick, your answer just doesn't deal with the component that's been troubling, which is that it doesn't protect the absent class members.

In situations like the one Justice Alito or the point Justice Alito made, which is they don't really know how much the entire quantity of the class might truly be, and who's protecting them--

David C. Frederick: Well--

Justice Sonia Sotomayor: --if it would go your way?

David C. Frederick: --Sure.

In his hypothetical, that's true under Federal rules, too.

If you're applying Federal Rule 23 and you have a large number of class members and the case gets settled for X dollars, the individual class member is held to the duty of deciding whether to opt out because that individual class member thinks I may have been able to get more than what is being offered in this class settlement or to attack the adequacy of the representation because the aggregate amount is not high enough.

It's a problem that applies in both Federal and in State court.

It's not unique to State court at all.

If the Court has no further questions, we'll submit.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Boutrous, you have four minutes.

REBUTTAL ARGUMENT OF THEODORE J. BOUTROUS, JR., ON BEHALF OF THE PETITIONER

Theodore J Boutrous Jr: Thank you, Your Honor.

Let me just start with the concerns that I have and I think they're best expressed and encapsulated in two of the friend-of-the-court briefs, the Manufactured Housing Institute brief and the 21st Century brief.

They explain what has been happening in Miller County.

It's not speedy justice.

It takes five or six years to get a hearing on anything and then there's no hearing, even on class certification.

And that's why, Justice Kagan, it's cold cold comfort to maybe somebody day the Court will find this is an inadequate class member or class representative.

It does not solve the problem that Congress sought to address.

With respect to Mr. Fredrick's suggestion that this stipulation is binding in this case forever and all-time on anybody who's in the case, his own brief on page 41 says: It might well be that another class representative might get appointed and the stipulation might be invalidated because it's an unfair stipulation and not valid for the class.

That new class representative could come in and say: We are not going to be bound by this $5 million number.

That's not the amount in controversy.

Justice Sonia Sotomayor: So why can't the case be removed at that moment?

Theodore J Boutrous Jr: Well, it theoretically could be, Your Honor, but that won't solve the problem of discovery.

If it goes back ten years in a case that's supposed to be about two years.

It won't solve the problem of--

Justice Elena Kagan: Mr. Boutrous, you know, a lot of your brief talks about this problem of discovery.

And it may very well be that there is a significant one, I don't know, but when you look at CAFA, I mean, CAFA did a lot of things.

And it did not address this problem that you have with discovery.

There could be -- I can give you, you know, ten different proposals that would enable you to bypass expensive discovery, but CAFA didn't do any of them.

And this is a kind of a jerry-rigged solution to get at a problem that Congress, in fact, did not address.

Theodore J Boutrous Jr: --That's incorrect, Your Honor.

First, Congress knew what was going on in state courts and wanted swift removal in a simple way for defendants to protect defendants and absent class members because it knew what was going on.

There wasn't these protections.

The federal rules provide protection against discovery.

This Court said -- one of the reasons is speedy motion to dismiss, and a strong standard is necessary as to avoid discovery that is burdensome, that coerces settlements that don't relate to the merits.

So Congress knew it was bringing cases into the federal system for precisely that reason.

And on this master of complaint point, Mr. Frederick is simply incorrect on this point.

St. Paul wasn't a master of the complaint case, it said the plaintiff can limit the amount that he wants to seek.

The master of the complaint doctrine has never, ever been applied by this Court where an unappointed named plaintiff, who's not been appointed to represent people, seeks to try to alter the claims and judgments of other people and the rights of them to recover.

It's usually been applied in the arising under contexts.

Where the Court has said if a plaintiff wants to bring a state claim, they can.

We are not going to force them to bring a federal claim.

Justice Elena Kagan: Mr. Boutrous, the idea of master of the complaint is inherent in every class litigation because there could be no class action, there could be no definition of anything, of the claims, of the amount of damages, of the number of defendants, of the amount of time unless the plaintiff, the named plaintiff, had some ability to define the claim.

And this is just one aspect of that larger power.

Theodore J Boutrous Jr: Your Honor, on the amount in controversy, this Court has never held in a class action or otherwise that that's something that's subject to the well pleaded complaint rule or the master of the complaint doctrine.

The court in the Hertz case and in the McNutt case, which it cites, said the Court should look past what the pleadings say.

Justice Elena Kagan: Okay.

Then you really are asking us to blow up the whole world.

Theodore J Boutrous Jr: No, Your Honor.

Justice Elena Kagan: Because you're saying: Next time we will be back and tell you that the named plaintiff can't define the clans.

Next time we are going to be back and tell you that they can't name the defendants.

Theodore J Boutrous Jr: No, Your Honor.

May I answer, Your Honor?

Chief Justice John G. Roberts: 0 [Nods.]

Theodore J Boutrous Jr: We are asking the Court to apply the same rules on this score that the Court has always applied, that when the complaint claims one amount, the defendant can bring forth proof that it's a larger amount, that it exceeds the amount in controversy and the Court looks at the competent proof, that's the language the Court used in the Hertz case, to determine the actual amount in controversy, not some jerry-rigged amount the plaintiffs came up with.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.