United States Court of Appeals

For the Eighth Circuit

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No. 13-1996

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Daniel Raskas

Plaintiff-Appellee

v.

Johnson & Johnson; McNeil-PPC, Inc.

Defendants-Appellants

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Marjie Levy

Plaintiff-Appellee

v.

Pfizer, Inc.

Defendant-Appellant

____________
Leslie Yoffie

Plaintiff-Appellee

v.

Bayer Healthcare LLC

Defendant-Appellant

____________

 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: June 12, 2013

Filed: June 26, 2013

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 Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

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MELLOY, Circuit Judge.

Johnson & Johnson, McNeil-PPC, Pfizer, Inc., and Bayer Healthcare LLC

(collectively, "Defendants") appeal the district court's remand order. The district

court held that Defendants failed to establish the amount in controversy requirement

under the Class Action Fairness Act ("CAFA"), codified in relevant part at 28 U.S.C.

§ 1332(d)(2). The district court therefore found a lack of subject matter jurisdiction. 

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Because we determine that Defendants met the amount in controversy requirement,

we reverse and remand to the district court.

I. Background

Marjie Levy, Leslie Yoffie, and Daniel Raskas (collectively, "Plaintiffs") filed

three separate putative class-action suits in Missouri state court, alleging Defendants

violated the Missouri Merchandising Practices Act, Mo. Rev. Stat. § 407.010 et seq.,

and conspired with unknown third parties to deceive customers into throwing away

medications after their expiration dates, knowing that the medications were safe and

effective beyond the expiration date. Marjie Levy sued Pfizer for its use of expiration

dates on its Advil products; Leslie Yoffie sued Bayer for its use of expiration dates

on Bayer Aspirin; and Daniel Raskas sued Johnson & Johnson and McNeil-PPC for

their use of expiration dates on Tylenol Cold Multi-Symptom. Defendants removed

to the United States District Court for the Eastern District of Missouri under CAFA. 

Each plaintiff filed a motion to remand claiming that CAFA’s $5 million amount in

controversy requirement was not met. The district court then consolidated the

motions for a single hearing.

Defendants’ evidence to establish the amount in controversy requirement

consisted of data on sales of their respective medications in Missouri during the fiveyear statute of limitations time period. See Mo. Rev. Stat. § 516.210. Plaintiffs

countered that these sales figures were insufficient to satisfy the amount in

controversy requirement, as Plaintiffs are only seeking to recover damages for

medications discarded and replaced.

The district court granted the motion to remand. The court found that

Defendants had not met their burden of establishing the amount in controversy

requirement, stating:

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Defendants have provided extensive data of sales of their respective

products in question to citizens of Missouri. However, defendants do

not propose a logical formula for calculating the potential damages in

this case using only the total sales data provided. In fact, none of the

defendants presents such a formula or methodology for calculating the

potential damages, but rather asks the court to presume that the amount

in controversymust satisfy the jurisdictional threshold based on the high

sales figures alone. This type of speculation is not sufficient to satisfy

the jurisdictional burden on defendants. As explained in Ongstad v.

Piper Jaffray & Co., 407 F. Supp. 2d 1085, 1092 (D.N.D. 2006),

"[n]either party has provided the Court with a reliable method to

determine, or even guesstimate," the value of the medication in

controversy in these cases. Therefore, I agree with other courts that

have considered this issue that because the amount of damages is

indeterminable at thisstage of the proceedings, defendants have not met

their burden of establishing subject matter jurisdiction over this case.

Defendants filed a request with this Court for review of the remand order pursuant to

28 U.S.C. § 1453(c). We granted the request.

II. Analysis

"We review de novo a district court's order to remand a removed case for lack

of subject matter jurisdiction." Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir.

2009). CAFA "confers federal jurisdiction over class actions where, among other

things, 1) there is minimal diversity; 2) the proposed class contains at least 100

members; and 3) the amount in controversy is at least $5 million in the aggregate." 

Plubell v. Merck & Co., 434 F.3d 1070, 1071 (8th Cir. 2006) (citing 28 U.S.C.

§ 1332(d)). The district court determined "the issue of federal jurisdiction in [the

current cases] centers on the amount in controversy." 

"[A] party seeking to remove under CAFA must establish the amount in

controversy by a preponderance of the evidence. . . ." Bell, 557 F.3d at 958. Here,

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in order to meet their respective burdens, each defendant relies on its own sales

figuresin Missouri during the relevant statutory time period. The district court found,

and Plaintiffs argue on appeal, that these figures cannot establish the amount in

controversy because they are overinclusive, as Plaintiffs are only attempting to

recover damages for the medications wrongfully discarded and replaced due to

Defendants' practices. However, when determining the amount in controversy, the

question "'is not whether the damages are greater than the requisite amount, but

whether a fact finder might legally conclude that they are.'" Id. at 959 (quoting Kopp

v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002); see also Pretka v. Kolter City Plaza II,

Inc., 608 F.3d 744, 754 (11th Cir. 2010) ("The point is that a removing defendant is

not required to prove the amount in controversy beyond all doubt or to banish all

uncertainty about it.").

Other circuits have rejected similar overinclusive arguments. In Spivey v.

Vertrue, Inc., the plaintiffs filed a class action lawsuit in state court to recover alleged 

unauthorized credit card charges. 528 F.3d 982, 983 (7th Cir. 2008). The defendant

removed to federal district court under CAFA and submitted an affidavit detailing its

total credit card charges to establish the amount in controversy requirement. Id. at

985. The district court held that this was insufficient to establish the amount in

controversy because the defendant "did not concede that more than $5 million in

charges was unauthorized." Id. The Seventh Circuit reversed, finding that the total

charges were sufficient to meet the defendant's burden because plaintiffs’ claim that

they were subjected to some unlawful charges put into controversy the propriety of

all of the charges, and the sum of all of the charges exceeded $5 million. Id. at

985–86.

Similarly, the Ninth Circuit held that evidence of total charges for landline

telephone services was sufficient to meet the amount in controversy requirement in

a class-action suit alleging the defendant unlawfully charged some customers for

landline telephone service without their consent. Lewis v. Verizon Commc'ns, Inc.,

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627 F.3d 395, 400–02 (9th Cir. 2010). Relying on Spivey, the court held that the total

charges established the amount in controversy requirement because "[t]he amount in

controversy is simply an estimate of the total amount in dispute, not a prospective

assessment of defendant's liability." Id. at 400.

In the current case, each defendant's affidavit detailing the total sales of their

respective medications in Missouri meets the amount in controversy requirement. 

First, defendant Pfizer produced an affidavit stating thatsales fromthe relevant Advil

products were over $14 million. Next, defendants Johnson & Johnson and McNeilPPC produced an affidavit stating their total sales of Tylenol Cold Multi-Symptom

as $3.3 million. When considering the total sales in conjunction with the request for

punitive damages the amount in controversy requirement is met. See Mo. Rev. Stat.

§ 510.265.1(2) (limiting punitive damagesto up to "[f]ive timesthe net amount of the

judgment”); Hervey v. Mo. Dep't of Corr., 379 S.W.3d 156, 165 (Mo. 2012) (holding

that "net amount of the judgment" for purposes of calculating punitive damages

includesthe attorney's fee award); see also OnePoint Solutions, LLC v. Borchert, 486

F.3d 342, 348 (8th Cir. 2007) (stating that punitive damages can be included when

determining the amount in controversy). Finally, defendant Bayer provided an

affidavit stating that its sales from certain Bayer Aspirin products were over $19

million. All of these sales figures are sufficient to establish the amount in 1

controversy requirement by a preponderance of the evidence.

The district court held that Bayer's affidavit could not be used to establish the

1

amount in controversy because it included sales fromvariousBayer Aspirin products,

and Plaintiffs only intended to include a product named "Genuine Bayer Aspirin." 

However, Plaintiffs's complaint describes the medication in controversy as "Bayer

Aspirin" or "Bayer Aspirin products." The complaint never appears to limit the

medication to "Genuine Bayer Aspirin," and Plaintiffs cannot attempt to limit the

medication after the fact to defeat jurisdiction. See Hargis v. Access Capital Funding,

LLC, 674 F.3d 783, 789–90 (8th Cir. 2012) (stating that CAFA jurisdiction is

determined by "the operative complaint at the time of removal").

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"Once the proponent of federal jurisdiction has explained plausibly how the

stakes exceed $5 million,” as Defendants have in this case, “then the case belongs in

federal court unless it is legally impossible for the plaintiff to recover that much."

Spivey, 528 F.3d at 986 (internal citation omitted). Even if it is highly improbable

that the Plaintiffs will recover the amounts Defendants have put into controversy, this

does not meet the legally impossible standard. See Keeling v. Esurance Ins. Co., 660

F.3d 273, 275 (7th Cir. 2011) (stating that the “legally impossible” test is not met

even if it is “improbable” that plaintiffs will recover the entire amount that the

defendants established as being “in controversy”). 

Further, Defendants are not required to provide a "formula or methodology for

calculating the potential damages" more accurately, as the district court held. We

have specifically rejected the need for this kind of formula or methodology, as it

would require a defendant to "confess liability" for the entire jurisdictional amount. 

Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 945 (8th Cir. 2012) (quoting Spivey,

528 F.3d at 986); see also Lewis, 627 F.3d at 400 ("To establish the jurisdictional

amount, [the defendant] need not concede liability for the entire amount, which is

what the district court was in essence demanding by effectively asking [the

defendant] to admit that at least $5 million of the billings were 'unauthorized' within

the meaning of the complaint.").

Plaintiffs also argue that Defendants' affidavits are insufficient to establish the

amount in controversy requirement because they contain inadmissible hearsay. We

reject Plaintiffs' argument. As we have recently stated, "[t]he removing party's

'burden of describing how the controversy exceeds $5 million' constitutes 'a pleading

requirement, not a demand for proof.'" Hartis, 694 F.3d at 944–45 (quoting Spivey,

528 F.3d at 986); see also Pretka, 608 F.3d at 755 ("The substantive jurisdictional

requirements of removal do not limit the types of evidence that may be used to satisfy

the preponderance of the evidence standard. Defendants may introduce their own

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affidavits, declarations, or other documentation—provided of course that removal is

procedurally proper.").

III. Conclusion

For the foregoing reasons, we vacate the district court's order and remand for

a disposition on the merits.

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