Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 129 Arabian v. Sony Electronics, a federal district court held otherwise, dismissing the case for lack of subject matter jurisdiction because a class could not be certified, nor was certification likely in the foreseeable future.660 And in Darneal v. Allied Waste Transp., Inc., a defendant employer attempted to obtain remand to state court because it realized it had erroneously calculated the number of potential class members when it originally removed thecase.661 The federal district court refused to remand, holding that the question of the number of potential class members is a factual inquiry that is likely to be resolved through continued litigation. The Ninth Court resolved this split in United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial & Service Workers International Union v. Shell Oil Co.662 In that case, the defendant, represented by Seyfarth Shaw, defeated plaintiffs’ motion for class certification, and plaintiffs thereafter obtained remand to state court on the grounds that there was “no reasonably foreseeable possibility” that a class would be certified, and that therefore CAFA’s jurisdictional requirements could not be satisfied.663 On appeal from the remand order, the Ninth Circuit disagreed, and held that, in the context of CAFA jurisdiction, the Red Cab rule applies “because no one suggests that a class action must be certified before it can be removed to federal court under the Act.”664 Further, the Ninth Circuit held that “[i]f a defendant properly removed a putative class action at the get-go, a district court's subsequent denial of Rule 23 class certification does not divest the court of jurisdiction, and it should not remand the case to state court.”665 The Ninth Circuit reaffirmed this holding in Madeira v. Converse, Inc. 666 There, the federal district court denied the plaintiff’s motion for class certification, and then sua sponte remanded the case back to California state court, reasoning that the court no longer had jurisdiction under CAFA. The defendant, also represented by Seyfarth Shaw, appealed the remand order. The Ninth Circuit reversed the district court’s decision, holding that “[w]here, as here, jurisdiction was proper at the time of removal, subsequent dismissal of class claims does not defeat the court's CAFA jurisdiction over remaining individual claims.”667 G. Settlement Process The enactment of CAFA has also brought changes to class action settlement procedures.668 In contingency fee cases, if a proposed settlement of a class action calls for provision of coupons to class members, the portion of any attorney’s fee award that is attributable to the coupons is based on the value to class members of the 660 Arabian v. Sony Elecs. Inc., 2007 WL 2701340 (S.D. Cal. 2007). 661 Darneal v. Allied Waste Transp., Inc., 2010 WL 5292341 (E.D. Cal. Dec. 17, 2010). 662 602 F.3d 1087, 1091-92 (9th Cir. 2010). 663 Id. at 1090. 664 Id. at 1091. 665 Id. at 1092. 666 826 Fed. App’x 634 (9th Cir. 2020). 667 Id. at 635. 668 28 U.S.C. § 1711.
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