On the surface Weems v. Touro Infirmary and Preston v. Tenet Health Systems Memorial Medical Center Inc. are nearly identical cases. In both, a class of plaintiffs sued a New Orleans health care provider, alleging it was responsible for injuries and deaths because it failed to move patients out of the path of Hurricane Katrina.
But the two cases turned out quite differently--the defendant in Weems successfully removed the case to federal court, while the Preston plaintiffs won their fight to stay in Louisiana state court. In deciding the cases, the 5th Circuit provided insight into some lingering questions about the Class Action Fairness Act (CAFA).
For example, in Mattera v. Clear Channel Communications Inc., a Southern District of New York judge concluded in November 2006 it was "reasonably likely" the plaintiffs met the two-thirds benchmark, even though they produced no affidavits or other such evidence about the class members' intent to remain in the state. All of the class members work in the state, the judge noted, and that was sufficient to keep the case in state court.
The reasoning directly contradicts that of Weems, says Beth Boland, a partner in the Boston office of Bingham McCutchen. "This is kind of the Wild West right now, and there just seems to be no real gravitation around a given standard," Boland says.