Suppose a plaintiff files a class action complaint in state court alleging aggregate damages "in an amount less than $5 million." What must the defendant do to invoke the Class Action Fairness Act and keep the case in U.S. District Court. In Tate v. U.S. Bank National Association (D. Or. 2007) 2007 WL 1170608, an Oregon judge has followed a 9th Circuit case, Lowdermilk v. U.S. Bank National Association (9th Cir. 2007) 479 F.3d 994, slip op. at 10, and remanded a case back to state court, finding that
Where, as here, there is no evidence of bad faith on the part of the plaintiff, defendant must not only contradict the plaintiff's own assessment of damages, but must overcome the presumption against federal jurisdiction by showing that plaintiff is legally certain to recover at least five million dollars.
"Legally certain to recover." We're bound to see those words pop up quite a bit in future proceedings.