In Campbell v. Vitran Express, Inc., No. 12-55052, 2012 U.S. Lexis App. 4864 (9th Cir. Feb. 14, 2012) the plaintiffs, city and local truck drivers, sued claiming they had been denied state-mandated meal and rest breaks, wages and benefits, accurate wage statements, and accurate payroll records.  The complaint alleged an amount in controversy below $5 million.  Pursuant to CAFA, a defendant may remove a case to federal court if the amount in controversy exceeds the sum or value of $5 million, exclusive of interest and costs.  In the Ninth Circuit, if the class action complaint alleges an amount in controversy below $5 million, the removing defendant must prove to a legal certainty that the amount in controversy exceeds $5 million.  The Ninth Circuit has explained the “legal certainty” test as enough evidence to allow the court to estimate with certainty the actual amount in controversy.

In Campbell, the defendant removed the case in reliance upon the testimony of two class plaintiffs, as well as evidence from the defendants’ experts.  The parties agreed there were 156 members in the class, and the time period for calculating damages was four years.  The defendants’ experts assumed that each claimant had missed at least one meal and at least one rest break per week.  Based on that assumption, the experts calculated the class damages in a range from $5,295,866.30 to $7,226,375.50.  The plaintiffs did not dispute the defendant’s calculations but did dispute the defendant’s assumption as to the number of missed meals and rest breaks per week.  The plaintiffs, however, offered no evidence to contradict the assumption, and, in fact, the named plaintiffs testified that they never were allowed meals or rest breaks.  These plaintiffs also alleged that their claims were typical of the other class members.  Based on this evidence, and plaintiffs’ counsel’s unwillingness at oral argument to stipulate that the amount in controversy was no greater than $5 million, the Ninth Circuit reversed the district court’s order remanding the case.  The Ninth Circuit concluded that the defendant had met its evidentiary burden by proving the statutory amount to a legal certainty.