In Grant v. Chevron Phillips Chemical Co. L.P., 309 F.3d 864 (5" Cir. 2002), the court
took the next step, determining that when no specific statute authorized attomey’s fees to be
taxed against the defendant, article 595(A) can also serve as an independent source of attorney’s
fees. In reaching its decision, the court assumed that art. 595(A) does not authorize a court to
assess attorney’s fees against the defendant, but that any common fund or other benefit made
available to the class are eligible sources of the fees. Thus, the court concluded that article
595(A) “remains a fee-shifting statute, but the shifting is not between the class and the defendant.
Instead the shifting is between the class representatives and the rank and file members of the
class.... Thus, in a non-fund case, like this one, each class member’s damage recovery could be
reduced by the court and shifted to the class representatives, ...” Id. at 872-73. The court then
concluded that such fees allowable under article 545(A), whatever the source, are attributable to
the class representative exclusively for purposes of determining the jurisdictional amount under
§ 1332. Id. at 873.

Plaintiff correctly argues that because under article 595(A) attorney’s fees are recoverable
by the class representative only, he has the ability to waive any claim to such fees. He has
effectively done so in his complaint and the court accepts that representation. Plaintiff expressly
“disclaims any right to recover attorney’s fees in the state law [complaint],” either from
defendant or from any recovery by the class members by way of common fund or otherwise.
(Plaintiff's Reply, at 3.) As master of his complaint, even a class action complaint, plaintiff is
allowed to plead less than the true value of a claim and to waive any right to more, solely to

avoid litigating in federal court. In re Brand Name Prescription Drug Antitrust Litigation, 248

F.3d 668, 670-71 (7" Cir. 2000); In re Brand Name Prescription Drug Antitrust Litigiation,123



Defendant raises two arguments to establish the amount in controversy. First, defendant
argues that attorney’s fees provided under Louisiana law put more than $75,000 into controversy.
Under La. Code Civil Proc. art. 595(A)? a named plaintiff in a class action is entitled to recover
attorneys’ fees if he prevails at trial, and under article 862, every judgment shall grant all relief to
which a party is entitled even if not demanded in the pleadings. Therefore, defendant argues that
plaintiff is entitled to attorney’s fees even if not requested, putting more than $75,000 into
controversy.

Plaintiff is the master of his complaint, however, and in his complaint has specifically
disclaimed any right to recover attorney’s fees:

Plaintiff specifically disclaims any right to an award of attorney’s fees under any

substantive statutory provisions, including La. C.C.P. Article 595(A), or under

La. C.C.P. Article 862. Plaintiff specifically disclaims any award of attomey’s

fees as an element of his cost of litigation.

In In re: Abbot Laboratories, 51 F.3d 524, 526-27 (5" Cir. 1995), the court determined
that in a Louisiana state class action, any attomey’s fees taxable against the defendant pursuant to
a specific statute must be attributed solely to the class representative when determining the
amount in controversy for diversity jurisdiction. The basis for the court’s holding was article

595(A), which requires that attorney’s fees allowed as an element of litigation expenses be

granted exclusively to the class representative.

*La. Code Civil Proc. art. 595(A) provides:
The court may allow the representative parties their reasonable expenses of
litigation, including attorney’s fees, when as a result of the class action a fund is
made available, or a recovery or compromise is had which is beneficial, to the
class.


F.3d 599, 607 (7" Cir. 1997). Defendant has presented no authority otherwise, except for a
statement in Man, vy. Prudential Pro, and C: ty Insurance Co., 276 F.3d 720, 724 (5
Cir. 1002), suggesting that it may be unethical for a class representative to waive the right of the
putative class members to attorney’s fees. As noted above, however, fees under art. 595(A) are
allowable to the class representative only, and as the only class representative plaintiff can waive
his claims.

Finally, defendant argues that plaintiff's request for disgorgement of defendant's profits
independently satisfies the jurisdictional amount. Defendant argues that plaintiff claims a
common and undivided interest in defendant’s profits, which is not tied to the number of class
members. Defendant is incorrect. This is not a case where there is one res at issue, such as an
estate. Each of the class members that plaintiff seeks to represent is entitled to his or her own
separate recovery. See Del Vecchio v. Conseco, Inc., 230 F.3d 974, 977-78 (7" Cir. 2000) (citing

Gilman v. HC Securities, Inc., 104 F.3d 1418, 1423 (2d Cir. 1997)). Therefore, plaintiff does not

have an undivided interest in a fund over $75,000 and can disclaim any amount of damages over
$74,900. Accordingly, defendant’s argument that plaintiff's claim for disgorgement satisfies the

amount in controversy requirement is rejected.


‘

“st
Minute OPder Form (06/97)”

ko

United States District Court, Northern District of Illinois

ame caatenet age | Robert W. Gettleman | Suuluieet oe

CASE NUMBER 03 C 4531 DATE December 3, 2003
CASE Mark E, Andrews v__ Trans Unlon, LLC
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.}

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

Q) Qo Answer brief to motion due___. Reply to answer briefdue___.

(4) im Hearing

(5) Qa Status hearing

(6) Q Pretrial conference[held/continued to] [set for/re-set for] on set for at_.

(7) oO Trial[set for/re-set for] on at.

(8) im [Bench/Jury trial] [Hearing] held/continued to__at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OUFRCP4(m) (OGeneral Rule21 C)FRCP41(a)(1) O FRCP41(a)(2).

(10) i [Other docket entry] Memorandum Opinion and order entered. Accordingly,

this court determines that defendant has failed to establish that the amount in
controversy is greater than $75, 000 and plaintiff's motion to remand this case to the
Civil District Court of the Parish of Orleans, State of Louisiana, is granted. Plaintiff's

motion for attorney’s fees is denied.

qa)

a [For further detail see order attached to the original minute order.]

‘No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
GDS deputy's
initials

0d LayLSia “sn
nw wu3td

QO hy S- 93060

date mailed notice

Date/time received in

emagey gal 4

nailing deputy initiats



CONCLUSION

For the reasons set forth above, defendant has failed to establish that the amount in

controversy is greater than $75,000 and plaintiff's motion to remand is granted.’

“60h toto

ENTER: December 3, 2003

Robert W. Gettleman
United States District Judge

3Plaintiff’s motion for attorney’s fees under 28 U.S.C. § 1447(c) is denied, because the
court does not find that defendant’s removal of this action to federal court was done in bad faith.

6


Doc
IN THE UNITED STATES DISTRICT COURT D KE TED
FOR THE NORTHERN DISTRICT OF ILLINOIS EC 9g 2003
EASTERN DIVISION

ra

IN RE TRANS UNION CORP. PRIVACY
LITIGATION

MDL Docket No. 1350

No. 03 C 4531 Judge Robert W. Gettleman

)
)
THIS DOCUMENT RELATED TO: } Lead Case No. 00 C 4729
)
)
Mark E. Andrews v. Trans Union, LLC )
MEM D PINION ORDER

Plaintiff Mark Andrews, on behalf of himself and others similarly situated, brought a four
count putative class action complaint (termed a “petition”) in the Civil District Court of the
Parish of Orleans, State of Louisiana, alleging that defendant Trans Union LLC violated the
Louisiana Consumer Credit Act, Illinois’ common law of invasion of privacy, and the California
Business and Professional Code § 17200, by selling plaintiff's personal information as part of it
target marketing list business. Because the complaint raises essentially the same factual
allegations as those raised in the multi-district class action (“MDL”) pending before this court, In
Re Trans Union Corp. Privacy Litigation, 00 C 4729, defendant removed the case to the United
States District Court for the Eastern District of Louisiana and then sought and received transfer
of the case to this court. Plaintiff has moved to remand to the state court for lack of federal
subject matter jurisdiction. For the reasons set forth below, the motion is granted.

First, there is no federal question jurisdiction under 28 U.S.C. § 1331. Unlike the
complaints in the MDL, which all allege violations of the Federal Fair Credit Reporting Act, 15

U.S.C. § 1681 et seq. (“FCRA”), plaintiff's complaint contains no such claim, relying instead on

2



alleged violations of various state statutory and common law. The court rejects defendant’s
argument that removal is proper under the “artful pleading doctrine” because plaintiff's claim for
relief relies on a predicate showing that a federal legal standard has been violated. Although it is
true that a violation of the FCRA results in a presumption of the failure to use ordinary care or
exercise due diligence under the Louisiana Consumer Credit Act, La. Rev. Stat. § 9:3571.1G@),
that same presumption is applied to any violation of any provision of §9:3571.1. Thus, because
plaintiff can potentially prove a violation of the state act without relying on a violation of the
FCRA, federal question jurisdiction is lacking and removal on this basis is improper. See
Sercye-McCullom v. Ravenswood Hospital, 140 F. Supp.2d 944 (N.D. Ill. 2001).

More interesting, but no more tenable, is defendant’s argument that diversity jurisdiction.
exists under 28 U.S.C. § 1332. There is no doubt that there is complete diversity of citizenship
between the parties. Plaintiff seeks less than $75,000 in damages', however, leading to his
argument that jurisdiction under § 1332 is lacking.

When an action is removed based on diversity jurisdiction, the amount claimed by the
plaintiff is presumed to be determinative of the jurisdictional amount. Shaw v. Dow Brands,
Inc., 994 F.2d 364, 366 (7" Cir. 1993), Ifthe complaint seeks less than $75,000 in damages the
defendant must offer competent proof establishing to a reasonable probability that the amount in
controversy exceeds $75,000. Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7" Cir, 1993). Whether
the amount in controversy is satisfied is determined by assessing the total relief requested at the

time of removal. Matter of Shell Oil Co., 970 F.2d 355, 356 (7" Cir. 1992).

'Plaintiff seeks “damages less than $74,900.”
2