Patrick Leahy: “Added to the ``removal-at-any-time'' problems in the legislation are the hurdles established by Senator Feinstein's…”

“Added to the ``removal-at-any-time'' problems in the legislation are the hurdles established by Senator Feinstein's amendment adopted in committee. I know it is well intentioned, but the amendment does set up cumbersome requirements for determining whether an action is to be heard in State or Federal court. It provides that a Federal judge may use five factors in deciding jurisdiction of a class action where between one-third and two-thirds of the plaintiffs are from the same State as primary defendants; and if two-thirds of the plaintiffs are from the same State as the primary defendants, then the case will stay in State court. The bill fails to determine when this measurement takes place during the litigation. It has been my experience that membership in class actions frequently changes. So the two-thirds provision or the middle-third provision which is subject to judicial discretion could open up easily to judicial gamesmanship. The defendant could try to remove a case from State court at the discovery stage. Someone takes a deposition and finds, oops, this is going against us, let's get it out of here. Or the judge has made a ruling they do not like and they know they can never win on appeal, let's get it out of here, even after all the evidence is presented, or after closing arguments. Actually, the way the bill is currently written, it could be done while the jury is deliberating.”