The enactment of the Class Action Fairness Act (“CAFA”) has significantly expanded the ability of a defendant sued in state court to remove the action to federal court, as long as it can show that the aggregate amount in controversy exceeds $5 million.  See CAFA, 28 U.S.C. 1332(d)(2).  Nonetheless, what is required to make the requisite showing that the amount in controversy in a given action meets CAFA’s jurisdictional threshold has remained somewhat of an enigma, and, in fact, there remains a jurisdictional split on the issue.  However, despite this lack of consensus among jurisdictions, the Ninth Circuit has developed some consistent guidelines that provide valuable assistance to a plaintiff seeking to remand a case that has been removed on the grounds that the amount in controversy satisfies CAFA.
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The Complexities of the Medicare Secondary Payer Obligations
By MARYAM DANISHWAR, ESQ.

On November 17, 2010, Humana Medical Plan, Inc. and Humana Insurance Company filed a class action lawsuit against GlaxoSmithKline (“GSK”) seeking to enforce their and other Medicare Advantage (“MA”) Organizations rights as "secondary payers" under the Medicare Secondary Payer law (the “MSP”).  The MA Organization is looking to recover from GSK and GSK's insurers, as "primary payers" under the MSP, reimbursement of the money MA Organizations paid on behalf of their recipient for medical treatment for illnesses or injuries they suffered as a result of the use of the diabetes drug Avandia, Avandamet and Avandaryl.  Pursuant to 42 U.S.C. § 1395y(b)(2)(B)(ii) and 42 U.S.C. § 1395y (b)(3)(A), Humana is also asking for damages equal to double the amounts they themselves have paid to treat MA Avandia claimants with whom GSK has settled for GSK’s failure to pay such reimbursements. 
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On November 9, 2010, The Supreme Court heard oral arguments in AT&T Mobility Services v. Concepcion.  This case raises the important issue of whether the Federal Arbitration Act preempts state laws designed to protect consumers and employees from unilateral, boilerplate clauses contained in the fine print of contracts that seek to compel consumers and employees to arbitrate their individual claims and waive their right to bring their claims as a class action.  The decision in this case has far reaching effects as it questions whether or not arbitration clauses can prohibit participation in class action litigation, forcing aggrieved consumers and employees to arbitrate out of court or bear the cost of litigation individually if they so choose.
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