Lonny Hoffman, TheCommencement Problem: Lessons From a Statute’s First Year, 40 U. C. Davis L. Rev. 469 (2006) [full text available either at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=881779or http://lawreview.law.ucdavis.edu/articles/Vol40/vol40_no2.html].
In a guest post available here, Professor Lonny Hoffman of the University of Houston Law Center, takes a critical look at how courts have addressed CAFA commencement issues. He proposes that the now almost default answer to a commencement issue – perform a relation back analysis – is erroneous, and suggests that the courts should have focused on the statutory interpretation issue these cases raise – what did Congress mean when they set the trigger for CAFA’s application as whether or not a case had commenced? But why does this matter anyway? Aren’t most CAFA commencement issues played out by now? The answer is simple. As long as Congress decides to employ the word “commencement” as a trigger for the applicability of a statute, it will matter how courts interpret that trigger. Therefore, although CAFA commencement cases may be receding faster than Donald Trump’s hairline, the issue will raise its deceptively complex head again.
Bottom Line: Professor Hoffman provides an interesting take on CAFA commencement, and in doing so formulates a creative, and arguably correct, argument you may want to borrow from if you still have a commencement issue looming.