This post will completely miss the point.

(Yeah, yeah: So how does that distinguish this post from all the rest of ’em?)

In Pew v. Cardarelli, No. 06-5703-mv, slip op. (2d Cir. May 13, 2008), plaintiffs alleged that officers of an issuer failed to disclose, while marketing debt securities, that the issuer was insolvent. That sounds like a securities case, but the plaintiffs pleaded only claims under New York’s consumer fraud statute, presumably to keep the case out of federal court.

As you well know, we don’t do that securities stuff on this blog. (We have a running dispute over whether “10b-5” is spelled with a “b” as in “boy” or a “d” as in “dog.”) We’re not gonna break with tradition and start now.

Instead, we’re going to focus on the CAFA aspects of Pew.

The Class Action Fairness Act of 2005 expanded federal diversity jurisdiction in several ways to permit cases of national importance to be heard in federal courts.

After a defendant removes a case under CAFA, a federal trial court may decide to remand the case to state court. Federal trial court remand orders are generally not reviewable “on appeal or otherwise.” 28 U.S.C. Sec. 1447(d). CAFA, however, created an exception to that prohibition on review for cases removed under CAFA. CAFA authorized federal appellate courts to “accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed.” 28 U.S.C. Sec. 1453(c)(1).

That left open several procedural issues.

First, for decades before CAFA was enacted, defendants had battled to obtain appellate review of remand orders. The Supreme Court opened the door to occasional appellate review in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976). But Thermtron left it awfully hard to tell what cases were reviewable by what appellate process. See generally Mark Herrmann, “Thermtron Revisited: When and How Federal Trial Court Remand Orders are Reviewable,” 18 Ariz. St. L.J. 395 (1987). Moreover, some courts held that a defendant was required to obtain a stay of the remand order from the federal trial court, on the theory that the trial court lost jurisdiction when it mailed the remand order to state court — and the federal appellate court at that same instant lost the ability to hear an appeal.

Mercifully, Pew says that a defendant is not required to seek a stay before taking an appeal under CAFA. Pew, slip op. at 8. For practitioners, that’s a good result; it means that you don’t have to remember to seek a stay before filing a petition for leave to appeal from a CAFA remand order.

(We’re not sure that’s as good a result for purists or legal scholars. If a federal trial court does, in fact, divest the federal court system of jurisdiction at the instant it mails its remand order, then appellate courts should lack jurisdiction to hear all appeals — including those under CAFA — after the remand order is dispatched.)

That jurisdictional stuff is way too theoretical for us. We just like to know what piece of paper to file and where. Pew answers that question, so we’re happy — don’t bother seeking a stay in the trial court (at least in the Second Circuit).

We’re less happy about a different procedural aspect of Pew.

In Pew, the defendant filed a petition for leave to appeal, and the Second Circuit chose to decide both whether to accept the appeal and “the merits of the appeal simultaneously.” Id. at 11-12. A court’s allowed to do that, of course, but it does make life much harder for those of us toiling out here in the fields.

When we’re drafting a petition for leave to appeal under CAFA, what brief should we write? A brief that explains why the appellate issue is important (so the court should agree to hear it)? Or a brief that explains why my client’s position is right (so I should win on the merits, if the court does accept the appeal)?

Those are two different issues, and it doesn’t always make sense to merge them.

Lawyers can, of course, strike a middle ground — “this appeal presents an important question for several reasons, and, in addition, here’s a small taste of why my client is right.” But if the court then simultaneously decides whether to take the appeal and the merits, you’ve given the court only a small taste of why you’re right — not the four-course meal that you otherwise had planned.

We can live with many different sets of rules.

But we’d sure like to know, ahead of time, what they are.

Courts should make clear whether they will (1) always combine the decision whether to accept an appeal with the merits of CAFA appeals or (2) always separate the two issues, first deciding whether to accept the appeal and then requesting separate briefs on the merits.

Or, if there won’t be a bright-line rule, tell us what the gray line will be.

We can live in many environments, but it’s only fair to let us know in advance the game that we’re supposed to play.