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FMLA Second and Third Opinions; Supreme Court limits ability of plaintiffs to fight CAFA removal

FMLA Second and Third Opinions; Supreme Court limits ability
of plaintiffs to fight CAFA removal

Our first article looks at the increased use of second and
third medical opinions by employers in an attempt to curtail abuse and
manipulation of the FMLA by employees
.  If
an employer doubts the validity of an initial medical certification provided by
an employee, it can request a second or third opinion.  However, the process is often time-consuming
from the employer’s perspective.  Because
of the nature of the long process, employers often have a desire to make the second/third
opinion permanent as to future leave requests for the same medical condition in
order to prevent employees from taking advantage of the long process by
repeatedly requesting leave for the same ailment.  Unfortunately, the FMLA is silent on whether
such a use is legal.  Some have argued that
an employer is able to rely on the latest medical certification when
designating leave for the future, and at least one federal appellate court has
held that a second/third certification can be relied upon until a contradictory
opinion is given.  Employers should of
course inform employees that this certification is being utilized to deny FMLA
leave, giving the employee a chance to provide contrary evidence if his or her
circumstances have changed.  Basically, a
second/third opinion shifts the burden to the employee to prove that his or her
condition is serious enough to warrant qualification under the FMLA.

Our second article examines a recent Supreme
Court decision that has made it more difficult for plaintiffs to avoid federal
removal jurisdiction by stipulating to artificially low damages
.  The holding in Standard Fire v. Knowles limits the ability of plaintiffs to avoid
jurisdiction under the Class Action Fairness Act.  CAFA was designed to limit forum-shopping by
plaintiffs attempting to try cases in favorable state court jurisdictions, and
created mandatory federal jurisdiction whenever damages of over $5 million were
in dispute and minimal diversity existed. 
Plaintiffs had been stipulating to less than 5 million in damages to
avoid the statute’s reach and keep cases in state courts.  The Court rejected the idea that plaintiffs
could bind then-unnamed class members to damages prior to certification of the
class, and noted that stipulations by named plaintiffs were not legally binding
as to all parties to the suit.  Basically,
any stipulation is now to be regarded as nonbinding for the purposes of analyzing
removal jurisdiction under CAFA.  This
case was a major win for defendants, because it restores the ability of litigants
to remove to federal court where more predictable class certification
procedures are followed.  The Court also
hinted that current plaintiffs with damage stipulations may now be inadequate
class representatives due to their artificial limits on recovery.  In general, the capacity to remove under CAFA
has been returned to its original legislative intent.