FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATTHEW D. GREENE, an individual, 

on behalf of himself, the proposed 

class(es), all others similarly 

situated, and on behalf of the general 

public,

Plaintiff-Appellee,

v.

HARLEY-DAVIDSON, INC., a 

Wisconsin corporation; HARLEYDAVIDSON MOTOR COMPANY, INC., a 

Wisconsin corporation; HARLEYDAVIDSON MOTOR COMPANY 

OPERATIONS, INC., a Wisconsin 

corporation,

Defendants-Appellants,

and

DOES, 1 through 10, inclusive,

Defendant.

No. 20-55281

D.C. No.

5:19-cv-01647-

RGK-KK

OPINION

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted May 14, 2020

Pasadena, California
2 GREENE V. HARLEY-DAVIDSON

Filed July 14, 2020

Before: Daniel P. Collins and Kenneth K. Lee, Circuit 

Judges, and Gregory A. Presnell,* District Judge.

Opinion by Judge Lee

SUMMARY**

Class Action Fairness Act

The panel reversed the district court’s order granting 

plaintiff’s motion to remand to state court an action that was 

removed by defendant Harley-Davidson, Inc. to federal 

court under the Class Action Fairness Act (“CAFA”). 

CAFA gives federal courts original jurisdiction over 

class actions that have a class of over 100 members, minimal 

diversity of citizenship between the parties, and an amount 

of controversy of more than $5 million. 

Harley-Davidson alleged the following damages 

satisfied the CAFA amount-in-controversy requirement: at 

least $2,166,666 in compensatory damages based on the 

prayer in the complaint; approximately $2,166,666 in 

punitive damages based on a 1:1 punitive/compensatory 

damages ratio; and $1,083,333 in attorneys’ fees.

* The Honorable Gregory A. Presnell, United States District Judge 

for the Middle District of Florida, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
GREENE V. HARLEY-DAVIDSON 3

The panel held that the district court erred in holding that 

Harley-Davidson failed to provide sufficient evidence that 

more than $5 million was at stake. Specifically, the panel 

held that a defendant satisfies CAFA’s amount-incontroversy requirement if it is reasonably possible that it 

may be liable for the proffered punitive damages amount. 

The panel held further that Harley-Davidson met this burden 

by citing four cases where juries had awarded punitive 

damages at ratios higher than 1:1 for claims based on 

California’s Consumer Legal Remedies Act. In doing so, 

Harley-Davidson relied on a reasonable chain of logic to 

assume that a similar amount was at stake here, and 

presented sufficient evidence that the amount-in-controversy 

exceeded $5 million.

The panel held that it was improper for the district court 

to consider Harley-Davidson’s potential statute of 

limitations affirmative defense in determining the amountin-controversy. Plaintiff argued that Harley-Davidson’s 

potential statute of limitations defense precluded damages 

for unnamed class members. The panel held that plaintiff 

could not smuggle merits-based arguments into the 

jurisdictional inquiry concerning the amount-in-controversy.

The panel held that plaintiff’s argument that two of the 

defendants lacked standing because they were non-moving 

parties was meritless. First, a class action may be removed 

by any defendant without the consent of co-defendants under 

CAFA. Second, all three defendants opposed plaintiff’s 

motion to remand, and were aggrieved by the decision being 

appealed.

The panel concluded that Harley-Davidson met its 

burden of showing that the amount-in-controversy exceeded 

$5 million under CAFA.
4 GREENE V. HARLEY-DAVIDSON

COUNSEL

James S. Azadian (argued) and Cory L. Webster, Dykema 

Gossett LLP, Los Angeles, California, for DefendantsAppellants.

Ross H. Hyslop (argued), Pestotnik LLP, San Diego, 

California, for Plaintiff-Appellee.

OPINION

LEE, Circuit Judge:

From Easy Rider’s Captain America to the Rolling 

Thunder motorcade, Harley-Davidson motorcycles have 

symbolized the spirit of rebelliousness and rugged 

individualism in American culture. Class actions, too, are 

uniquely American: the United States pioneered this 

litigation vehicle, and it remains the most robust in the 

world. These two American institutions intersect in this case 

about allegedly deceptive pricing of Harley-Davidson 

motorcycles.

This case presents a technical, but unresolved, question 

in this circuit: If the defendant relies on potential punitive 

damages to meet the amount-in-controversy requirement for 

removal under the Class Action Fairness Act, what is the 

defendant’s burden in establishing that amount? We hold 

that the defendant must show that the punitive damages 

amount is reasonably possible. Harley-Davidson met that 

standard by identifying prior cases involving the same cause 

of action in which the juries awarded punitive damages 

based on the same or higher punitive/compensatory damages 

ratios than the one relied upon by Harley-Davidson. We thus 
GREENE V. HARLEY-DAVIDSON 5

reverse the district court’s order remanding this case to state 

court because it effectively required Harley-Davison to 

provide evidence that the proffered punitive damages

amount is probable or likely.

BACKGROUND

In 2015, Plaintiff-Appellee Matthew Greene started 

shopping for a Harley-Davidson motorcycle. He researched 

online, reviewed Harley-Davidson’s catalogs and brochures, 

and browsed motorcycles at the Riverside Harley-Davidson 

dealership. The motorcycles had price tags with a 

“manufacturer suggested retail price,” and according to 

Harley-Davidson’s advertising, the price “exclude[d] dealer 

setup, taxes, title and licensing.” Based on this advertising, 

Greene expected the dealership to charge him a dealer setup 

fee on top of the suggested retail price.

Greene bought a motorcycle from the Riverside 

dealership on June 13, 2015. He paid $23,799.63, which 

included a $1,399 freight and prep charge. As expected, 

Greene paid the $1,399 fee in addition to the manufacturer’s 

suggested retail price. But, unbeknownst to Greene, the 

dealership had already performed the necessary prep and 

setup tasks for the motorcycle, and Harley-Davidson had 

reimbursed the dealership for the costs of doing so. 

Therefore, contrary to the dealership’s advertising, the 

suggested retail price actually included the dealership’s 

setup costs.

Two years later, Harley-Davidson’s advertising revealed 

that it in fact reimburses dealers for performing setup tasks. 

Greene now claims that he would not have paid the $1,399 

fee if not for Harley-Davidson’s fraudulent statement that 

the suggested retail price did not include dealer setup.
6 GREENE V. HARLEY-DAVIDSON

Greene filed a putative class action against HarleyDavidson on June 11, 2019, in California state court.1 

Greene brought claims for (1) false advertising, 

(2) violations of the Consumer Legal Remedies Act 

(CLRA), (3) breach of express warranty, (4) negligent 

misrepresentation, (5) fraud and deceit (6) quasicontract/unjust enrichment, (7) aiding and abetting, and 

(8) unfair competition.

Greene seeks (1) damages “in an amount not less than 

$1,000,000 for each year beginning June 11, 2015 and 

continuing to August 23, 2017,” (2) reasonable attorneys’ 

fees under a statutory fee shifting provision, (3) punitive 

damages, and (4) injunctive relief. He proposes a class of 

“[a]ll consumers who, for the period beginning June 11, 

2015 through August 22, 2017, purchased or leased from 

Riverside Harley-Davidson a new, assembled HarleyDavidson motorcycle,” and alleges that the class “likely 

consists of thousands of members.” The complaint also says 

that “any applicable statutes of limitation[s] should be tolled 

and are tolled under governing law.”

Harley-Davidson removed the case, invoking federal 

jurisdiction under the Class Action Fairness Act (CAFA). 

Harley-Davidson alleged that the following damages 

satisfied CAFA’s requirement that the amount in 

controversy exceeds $5 million: (1) at least $2,166,666 in 

compensatory damages based on the prayer in the Complaint 

(at least $1,000,000/year from June 11, 2015 to August 23, 

2017); (2) approximately $2,166,666 in punitive damages 

based on a 1:1 punitive/compensatory damages ratio; and 

1 “Harley-Davidson” refers to all three defendants.
GREENE V. HARLEY-DAVIDSON 7

(3) $1,083,333 in attorneys’ fees, or 25 percent of the total 

amount in controversy.

Greene moved to remand the case back to state court, 

challenging Harley-Davidson’s punitive damages and 

attorneys’ fees amounts. Greene argued that only the CLRA 

and fraud causes of action allow for punitive damages, and 

that both have a three-year statute of limitations. Invoking 

tolling principles established in American Pipe & Constr. 

Co. v. Utah, 414 U.S. 538 (1974), Green argued that his 

punitive damages prayers had to be based on his individual 

claims, not the class claims.2 He argued that his individual 

claims were for $1,399, so a 1:1 ratio would yield a punitive 

damages award of $1,399, not $2,166,666. Greene also 

challenged Harley-Davidson’s attorneys’ fees amount, 

arguing that the “common fund” fees come out of the total 

damages and are not added to the total amount in 

controversy.

Harley-Davidson opposed the motion, attaching 

(1) evidence that juries had awarded punitive damages above 

a 1:1 ratio in four prior California CLRA cases and 

(2) evidence that Greene’s attorney sought attorneys’ fees 

totaling 35 percent of the recovery in a similar class action.

2 In American Pipe, the Court held that if class certification is 

denied, the statute of limitation is tolled for the individual (non-class) 

claims for those members of the purported class. 414 U.S. at 553.
8 GREENE V. HARLEY-DAVIDSON

The district court granted Greene’s motion to remand. It 

acknowledged that Harley-Davidson had cited several cases 

in which the jury had awarded punitive damages on at least 

a 1:1 ratio. But it ruled that such evidence was insufficient 

because Harley-Davidson made “no attempt to analogize or 

explain how these cases are similar to the instant action. 

Although [Harley-Davidson] was not required to submit 

evidence of punitive damage awards in an identical case as 

this one, simply citing to cases without analysis or 

explanation is insufficient.” Greene v. Harley Davidson, 

No. 5:19-CV-01647-RGK-KK, 2019 WL 5855982, at *3 

(C.D. Cal. Nov. 7, 2019) (quotation marks and citations 

omitted). The court thus held that, even assuming HarleyDavidson’s attorneys’ fees amount was correct, HarleyDavidson had not established by a preponderance of the 

evidence that the amount in controversy exceeded 

$5 million. Id. at *4. Finally, the district court concluded by 

noting that the potential recovery for punitive damages was 

$1,399, not $2,166,166. Id. at *3.

Harley-Davidson timely filed a petition for permission to 

appeal, which was granted on March 16, 2020. We have 

jurisdiction under 28 U.S.C. § 1453.

STANDARD OF REVIEW

The Court “review[s] remand orders in CAFA cases de 

novo.” Arias v. Residence Inn by Marriott, 936 F.3d 920, 

924 (9th Cir. 2019) (citing Fritsch v. Swift Transp. Co. of 

Ariz., LLC, 899 F.3d 785, 792 (9th Cir. 2018)).
GREENE V. HARLEY-DAVIDSON 9

ANALYSIS

I. Harley-Davidson provided sufficient evidence 

showing that the potential punitive damages amount 

was possible.

CAFA gives federal courts original jurisdiction over 

class actions that have a class of over 100 members, minimal 

diversity between the parties, and an amount in controversy 

of more than $5 million. 28 U.S.C. § 1332(d); Standard Fire 

Ins. Co. v. Knowles, 568 U.S. 588, 592 (2013).

The only dispute here is whether Harley-Davidson has 

met the amount-in-controversy requirement. To meet this 

requirement, Harley-Davidson presented evidence that 

juries have awarded punitive damages above a 1:1 

punitive/compensatory damages ratio in other fraud cases 

involving the same statute at issue. The district court, 

however, ruled that it was not enough to merely cite cases 

involving the same cause of action; rather, a defendant has 

the burden of comparing and analogizing the underlying 

factual allegations to show that the punitive damages ratio is 

permissible.

The district court erred in holding that Harley-Davidson 

failed to provide sufficient evidence that more than 

$5 million is at stake. To determine the amount in 

controversy, we “first look to the complaint.” Ibarra v. 

Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. 

2015). When federal jurisdiction is challenged and the 

complaint is silent about damages, “the defendant seeking 

removal bears the burden to show by a preponderance of the 

evidence that the aggregate amount in controversy exceeds 

$5 million.” Id. (citation omitted). The damages assessment 

“may require a chain of reasoning that includes 
10 GREENE V. HARLEY-DAVIDSON

assumptions,” but those assumptions “need some reasonable 

ground underlying them.” Id. at 1199.

To meet CAFA’s amount-in-controversy requirement, a 

defendant needs to plausibly show that it is reasonably 

possible that the potential liability exceeds $5 million. As 

our court has noted, the amount in controversy is the 

“amount at stake in the underlying litigation.” Gonzales v. 

CarMax Auto Superstores, LLC, 840 F.3d 644, 648 (9th Cir. 

2016) (emphasis added) (quotation marks and citations 

omitted). “Amount at stake” does not mean likely or 

probable liability; rather, it refers to possible liability.

The language of the removal statutory provision supports 

this view. Under 28 U.S.C. § 1446(a), a defendant needs to 

offer a “short and plain statement of the grounds for 

removal.” The Supreme Court has held that “Congress, by 

borrowing the familiar short and plain statement standard 

from Rule 8(a), intended to simplify the pleading 

requirements for removal and to clarify that courts should 

apply the same liberal rules to removal allegations that are 

applied to other matters of pleading.” Dart Cherokee Basin 

Operating Co., LLC v. Owens, 574 U.S. 81, 87 (2014) 

(quotation marks and citations omitted). And although a 

presumption against federal jurisdiction exists in the usual 

diversity case, “no antiremoval presumption attends cases 

invoking CAFA.” Id. (citations omitted).

In short, a defendant satisfies the amount-in-controversy 

requirement under CAFA if it is reasonably possible that it 

may be liable for the proffered punitive damages amount. 

One way to meet this burden is to cite a case based on the 

same or a similar statute in which the jury or court awarded 

punitive damages based on the punitive-compensatory 

damages ratio relied upon by the defendant in its removal 
GREENE V. HARLEY-DAVIDSON 11

notice.3 Here, Harley-Davidson met that burden by citing 

four cases where juries had awarded punitive damages at 

ratios higher than 1:1 for claims based on the CLRA. In 

doing so, Harley-Davidson “relied on a reasonable chain of 

logic” to assume that a similar amount was at stake here, and 

“presented sufficient evidence to establish that the amount 

in controversy exceeds $5 million.” LaCross v. Knight 

Transp. Inc., 775 F.3d 1200, 1201 (9th Cir. 2015).

Several of our sister circuits have adopted the same or a 

similar standard for establishing potential punitive damages 

to satisfy the amount-in-controversy requirement. For 

example, in Pirozzi v. Massage Envy Franchising, LLC, the 

Eighth Circuit held that a proposed punitive damages 

amount equal to the compensatory damages and attorneys’ 

fees request was sufficient because courts have upheld 

higher ratios in cases based on the same anti-fraud statute. 

938 F.3d 981, 984 (8th Cir. 2019). The Seventh Circuit has 

also cautioned that courts should not assess the likelihood of 

a large punitive/compensatory damages ratio — as long as 

there is a prior decision reflecting that ratio and thus making 

it “not impossible” — because it would otherwise require 

delving into the merits of the case. Keeling v. Esurance Inc. 

Co., 660 F.3d 273, 275 (7th Cir. 2011). Similarly, the Tenth 

Circuit has held that a defendant need only provide facts that 

make it “possible that punitive damages are in play.” 

Frederick v. Hartford Underwriters Ins. Co., 683 F.3d 1242, 

1248 (10th Cir. 2012) (emphasis, quotation marks, and 

citation omitted) (stating that a defendant may “point to facts 

alleged in the complaint, the nature of the claims, or 

evidence in the record to demonstrate that an award of 

3 We note that this is not the exclusive method to show that the 

punitive/compensatory damages ratio is possible. We leave for another 

day whether there are other ways to meet this requirement.
12 GREENE V. HARLEY-DAVIDSON

punitive damages is possible.”). Finally, the Third Circuit 

has suggested that a defendant need only show that it is 

subject to “possible exposure” to punitive damages to meet 

its burden for the amount in controversy. See Judon v. 

Travelers Property Cas. Co. of America, 773 F.3d 495, 508 

n. 12 (3d Cir. 2014).

The district court, however, required Harley-Davidson to 

do more than cite a prior case showing that such a punitive 

damages ratio is possible. Rather, it demanded that HarleyDavidson “analogize or explain how [the cited] cases are 

similar to the instant action.” Greene, 2019 WL 5855982, 

at *3. But by requiring Harley-Davidson to show 

similarities to other cases, the district court improperly asked 

it to show the likelihood of the plaintiff prevailing on the 

punitive damages claim, rather than merely establishing the 

potential amount “at stake.” Gonzales, 840 F.3d at 648. It 

effectively changed CAFA’s amount-in-controversy 

requirement from possible liability to probable liability. See 

Frederick, 683 F.3d at 1248 (holding that defendant does 

need to show that punitive damages are “more likely than 

not,” but that they are merely “possible”); see also Chavez v. 

JPMorgan Chase & Co., 888 F.3d 413, 417 (9th Cir. 2018) 

(“the amount in controversy is not a prospective assessment 

of a defendant’s liability” but the amount potentially “at 

stake” (quotation marks and citation omitted)).

The district court’s approach also raises practical 

difficulties for the defendant. It invites a defendant to 

analogize cases that have been tried to verdict to a case at the 

pleading stage in which discovery has not even begun. For 

a court or jury to have awarded punitive damages in a fraud 

case that did not involve any physical injuries (like this one), 

it is likely that the damaging facts underlying the award were 

revealed during discovery. Cf. Michael Paul Thomas et al., 
GREENE V. HARLEY-DAVIDSON 13

Cal. Civ. Prac. Torts § 24:65 (noting the same for products 

liability actions based on fraud). But such facts likely will 

not be apparent at the pleading stage, making it all but 

impossible to analogize the cases.

To sum up, a defendant that relies on potential punitive 

damages to satisfy the amount in controversy under CAFA

meets that requirement if it shows that the proffered 

punitive/compensatory damages ratio is reasonably possible. 

And one way to establish that possibility is to cite a case 

involving the same or a similar statute in which punitive 

damages were awarded based on the same or higher ratio.

II. It was improper for the district court to consider 

Harley-Davidson’s potential statute of limitations 

defense.

Harley-Davidson also appeals from the district court’s 

apparent decision to adopt Greene’s argument that HarleyDavidson’s potential statute of limitations defense precludes 

damages for unnamed class members.

In Greene’s remand motion, he argued that only his 

individual CLRA and fraud claims could be tolled, and that 

therefore there was only $1,399 of potential punitive 

damages. The district court did not explicitly address this 

argument but adopted his $1,399 figure. Greene, 2019 WL 

5855982, at *4. On appeal, Greene again argues that 

punitive damages are unavailable to the class. He argues that 

under China Agritech, Inc. v. Resh, 138 S. Ct. 1800, 1806–

07 (2018) and Fierro v. Landry’s Restaurant Inc., 32 Cal. 

App. 5th 276, 292 (2019), only his individual CLRA and 

fraud claims can be tolled under the American Pipe doctrine.

The district court erred in considering the merits of 

Harley-Davidson’s affirmative defense to determine the 
14 GREENE V. HARLEY-DAVIDSON

amount in controversy. The amount in controversy 

represents only the “amount at stake in the underlying 

litigation,” not the likely liability. Gonzales, 840 F.3d 

at 648. We have held that the “strength of any defenses 

indicates the likelihood of the plaintiff prevailing; it is 

irrelevant to determining the amount that is at stake in the 

litigation.” Arias, 936 F.3d at 928 (emphasis in original). In 

other words, “just because a defendant might have a valid 

defense that will reduce recovery to below the jurisdictional 

amount does not mean the defendant will ultimately prevail 

on that defense.” Geographic Expeditions, Inc. v. Estate of 

Lhotka ex rel. Lhotka, 599 F.3d 1102, 1108 (9th Cir. 2010).

Greene argues that courts can inquire into potential 

recovery in assessing the amount in controversy, citing 

Pachinger v. MGM Grand Hotel-Las Vegas, Inc., 802 F.2d 

362, 364 (9th Cir. 1986), and Morris v. Hotel Riviera, Inc., 

704 F.2d 1113, 1115 (9th Cir. 1983). But in those cases, the 

underlying statute itself limited the damages available, and 

there was no need to delve into the merits of the defense or 

case. In contrast, evaluating a potential statute of limitations 

defense involves a fact-based analysis of the merits, 

especially in a case such as this where (1) Greene’s 

allegations involve fraud and concealment and (2) his 

complaint alleged that all statutes of limitations should be 

tolled.

In adopting Greene’s measure of damages, the district 

court assumed that Harley-Davidson would prevail on a 

statute of limitations defense against the rest of the class. 

The district court improperly “decide[d] the merits of the 

case before it could determine if it had subject matter 

jurisdiction.” Geographic Expeditions, 599 F.3d at 1108. 

Greene cannot smuggle in merits-based arguments into the 

“jurisdictional inquiry, which is supposed to be simple and 
GREENE V. HARLEY-DAVIDSON 15

mechanical.” Keeling, 660 F.3d at 275. Moreover, doing so 

would allow Greene to rewrite his complaint to avoid federal 

court. Greene sued for compensatory damages, punitive 

damages, and attorneys’ fees for a two-year class period, and 

alleged that all statutes of limitations should be tolled. He 

sued under laws that allow for punitive damages, exposing 

Harley-Davidson to higher damages. Harley-Davidson may 

successfully assert certain defenses, but if the class succeeds 

in receiving what Greene asked for, Harley-Davidson could 

pay more than $5 million in damages.

Put simply, Greene put more than $5 million in 

controversy. Greene is the master of his complaint, and he

owns the allegations that have landed him in federal court.4

* * * * *

Finally, we briefly address Greene’s argument that two 

of the defendants lack standing because they were nonremoving parties. This argument is meritless. A class action 

“may be removed by any defendant without the consent of 

co-defendants” under CAFA. Ibarra, 775 F.3d at 1195. In 

addition, all three defendants opposed Greene’s motion to 

4 Harley-Davidson also included $1,083,333 in attorneys’ fees —

i.e., 25 percent of the compensatory damages and punitive damages —

to meet the $5+ million amount-in-controversy requirement. The district 

court did not analyze the attorneys’ fees portion, and instead assumed it 

to be acceptable. A defendant does “not need to prove to a legal 

certainty” that a plaintiff will be awarded the proffered attorneys’ fees in 

the removal notice, Dart Cherokee, 574 U.S. at 88 (citing H.R. Rep. No. 

112–10, at 16 (2011)), and may “require a chain of reasoning that 

includes assumptions,” Ibarra, 775 F.3d. at 1199. Based on HarleyDavidson’s evidence that Greene’s attorney sought 35 percent in a 

similar case, it is reasonable to assume that Greene’s attorney would seek 

fees equal to 25 percent of the amount in controversy if he were to 

prevail.
16 GREENE V. HARLEY-DAVIDSON

remand, and were “aggrieved by the decision being 

appealed,” Hendricks v. Bank of Am., N.A., 408 F.3d 1127, 

1133 (9th Cir. 2005) (citations omitted).

CONCLUSION

Harley-Davidson met its burden of showing that the 

amount in controversy exceeds $5 million under CAFA by 

establishing that the proffered punitive/compensatory 

damages ratio is reasonably possible. The district court’s 

decision granting Greene’s motion to remand is 

REVERSED.