                            In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 05-8024
JAMES BRILL,
                                           Plaintiff-Respondent,
                                v.

COUNTRYWIDE HOME LOANS, INC.,
                                           Defendant-Petitioner.
                         ____________
                Petition for Leave to Appeal from
             the United States District Court for the
          Northern District of Illinois, Eastern Division.
           No. 05 C 2713—John W. Darrah, Judge.
                         ____________
 SUBMITTED OCTOBER 7, 2005—DECIDED OCTOBER 20, 2005
                    ____________


 Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
  EASTERBROOK, Circuit Judge. Countrywide Home Loans
violated the Telephone Consumer Protection Act, 47 U.S.C.
§227, by sending fax advertisements. James Brill, one of the
recipients, filed suit in state court, seeking to represent a
class of recipients. Countrywide filed a notice of removal
under the Class Action Fairness Act of 2005, Pub. L. 109-2,
119 Stat. 4 (2005). Brill’s suit was commenced after Febru-
ary 18, 2005, the Act’s effective date. The class comprises
more than 100 members, minimal diversity of citizenship is
present, and Countrywide alleged in the notice of removal
that the amount in controversy exceeds $5 million, the
2                                                No. 05-8024

statutory threshold. Countrywide concedes that it sent at
least 3,800 unsolicited advertising faxes, and §227(b)(3)
provides that the court may award $500 per fax, a sum that
may be trebled if “the defendant willfully or knowingly
violated this subsection or the regulations prescribed under
this subsection”. The award thus could reach $5.7 million.
If Brill can show that Countrywide sent more than the
3,800 junk faxes, it could be higher still. Yet the district
judge remanded the case, ruling not only that Countrywide
had not carried its burden of showing that the stakes
exceed $5 million (Brill might be unable to prove wilfulness)
but also that suits under the Telephone Consumer Protec-
tion Act never may be removed, because state jurisdiction is
exclusive. 2005 U.S. Dist. LEXIS 19664 (N.D. Ill. Sept. 8,
2005). Countrywide has filed a petition for interlocutory
review under 28 U.S.C. §1453(c)(1) (as amended by the
Class Action Fairness Act). We grant this petition, accept
the appeal, and summarily reverse.
   The district court began by allocating to Countrywide, as
the proponent of federal jurisdiction, the burden of persua-
sion on the amount in controversy. That the proponent
of jurisdiction bears the risk of non-persuasion is well
established. See, e.g., In re Brand Name Prescription Drugs
Antitrust Litigation, 123 F.3d 599, 607 (7th Cir. 1997);
Smith v. American General Life & Accident Insurance Co.,
337 F.3d 888, 892 (7th Cir. 2003). Whichever side chooses
federal court must establish jurisdiction; it is not enough to
file a pleading and leave it to the court or the adverse party
to negate jurisdiction. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). And the rule makes practical
sense. If the burden rested with the proponent of remand,
then Countrywide could have removed without making any
effort to calculate its maximum exposure, and without
conceding that it had faxed thousands of ads. That would
have thrown on Brill the burden of showing that Country-
wide could not possibly have sent more than 3,333 junk
No. 05-8024                                                 3

faxes (for if the award can reach $1,500 per fax then it is
No. 3,334 that puts the stakes over $5 million). Brill would
have no way to show this early in the litigation, and
plaintiffs in other kinds of suits would encounter similar
difficulty. When the defendant has vital knowledge that the
plaintiff may lack, a burden that induces the removing
party to come forward with the information—so that the
choice between state and federal court may be made
accurately—is much to be desired.
  Countrywide maintains that the Class Action Fairness
Act reassigns that burden to the proponent of remand.
It does not rely on any of the Act’s language, for none is
even arguably relevant. Instead it points to this language
in the report of the Senate Judiciary Committee: “If a
purported class action is removed pursuant to these juris-
dictional provisions, the named plaintiff(s) should bear
the burden of demonstrating that the removal was im-
provident (i.e., that the applicable jurisdictional provisions
are not satisfied).” S. Rep. 14, 109th Cong. 1st Sess. 42
(2005). This passage does not concern any text in the
bill that eventually became law. When a law sensibly
could be read in multiple ways, legislative history may help
a court understand which of these received the political
branches’ imprimatur. But when the legislative history
stands by itself, as a naked expression of “intent” uncon-
nected to any enacted text, it has no more force than an
opinion poll of legislators—less, really, as it speaks
for fewer. Thirteen Senators signed this report and five
voted not to send the proposal to the floor. Another 82
Senators did not express themselves on the question;
likewise 435 Members of the House and one President kept
their silence.
  We recognize that a dozen or so district judges have
treated this passage as equivalent to a statute and reas-
signed the risk of non-persuasion accordingly. See, e.g.,
4                                                No. 05-8024

Berry v. American Express Publishing Corp., 381 F. Supp.
2d 1118 (C.D. Cal. 2005); Natale v. Pfizer, Inc., 379 F. Supp.
2d 161 (D. Mass.), affirmed on other grounds, 2005 U.S.
App. LEXIS 19912 (1st Cir. Sept. 16, 2005). But naked
legislative history has no legal effect, as the Supreme Court
held in Pierce v. Underwood, 487 U.S. 552, 566-68 (1988). A
Committee of Congress attempted to alter an established
legal rule by a forceful declaration in a report; the Justices
concluded, however, that because the declaration did not
correspond to any new statutory language that would
change the rule, it was ineffectual. Just so here. The rule
that the proponent of federal jurisdiction bears the risk of
non-persuasion has been around for a long time. To change
such a rule, Congress must enact a statute with the Presi-
dent’s signature (or by a two-thirds majority to override a
veto). A declaration by 13 Senators will not serve. Cf.
Cherokee Nation of Oklahoma v. Leavitt, 125 S. Ct. 1172,
1181-82 (2005); Exxon Mobil Corp. v. Allapattah Services,
Inc., 125 S. Ct. 2611, 2625-27 (2005).
   There remains the question what Countrywide must do to
discharge its burden. The district judge thought that a
removing litigant must produce “evidence . . . that a
favorable judgment will award Plaintiff” more than the
jurisdictional minimum. The judge restated this as a
need for “competent proof to establish” that the statutory
threshold has been exceeded. Yet suits are removed on the
pleadings, long before “evidence” or “proof” have been
adduced. The question is not what damages the plain-
tiff will recover, but what amount is “in controversy”
between the parties. That the plaintiff may fail in its proof,
and the judgment be less than the threshold (indeed, a good
chance that the plaintiff will fail and the judgment will be
zero) does not prevent removal. Once the proponent of
jurisdiction has set out the amount in controversy, only a
“legal certainty” that the judgment will be less forecloses
federal jurisdiction. See St. Paul Mercury Indemnity Co.
No. 05-8024                                                   5

v. Red Cab Co., 303 U.S. 283 (1938); Gardynski-Leschuck v.
Ford Motor Co., 142 F.3d 955 (7th Cir. 1998). This standard
applies to removed cases no less than to those filed initially
in federal court. See Normand v. Orkin Exterminating Co.,
193 F.3d 908 (7th Cir. 1999); cf. The Barbers, Hairstyling
for Men & Women, Inc. v. Bishop, 132 F.3d 1203 (7th Cir.
1997).
   Application of the St. Paul Mercury “legal certainty”
standard usually is straightforward when the plaintiff
wants to be in federal court. Then the complaint will
contain allegations that, if established at trial, would justify
a judgment exceeding the jurisdictional minimum. When
the plaintiff prefers to be in state court, however, the
complaint may be silent or ambiguous on one or more of the
ingredients needed to calculate the amount in controversy.
A defendant’s notice of removal then serves the same
function as the complaint would in a suit filed in federal
court. The complication is that a removing defendant can’t
make the plaintiff’s claim for him; as master of the case, the
plaintiff may limit his claims (either substantive or finan-
cial) to keep the amount in controversy below the threshold.
Thus part of the removing party’s burden is to show not
only what the stakes of the litigation could be, but also
what they are given the plaintiff’s actual demands. That’s
the point of statements in our decisions that the removing
litigant must show a reasonable probability that the stakes
exceed the minimum. See, e.g., Smith v. American General
Life & Accident Insurance Co., 337 F.3d 888, 892 (7th Cir.
2003); Chase v. Shop ‘N Save Warehouse Foods, Inc., 110
F.3d 424, 427 (7th Cir. 1997). The demonstration concerns
what the plaintiff is claiming (and thus the amount in
controversy between the parties), not whether plaintiff is
likely to win or be awarded everything he seeks.
  Countrywide did all that is necessary by admitting that
one of its employees sent at least 3,800 unsolicited fax ads.
From this and the statutory text one can determine that the
6                                               No. 05-8024

controversy exceeds $5 million. The complaint did not set a
cap on recovery—as it might have done if the plaintiff had
represented that the class would neither seek nor accept
more than $5 million in aggregate. Nor did the complaint
abjure trebled damages; it held open that possibility,
depending on the state of the proof. (The complaint reads:
“If the evidence shows that the violation was willful,
plaintiff requests trebling of the damages.”) Countrywide
did not have to confess liability in order to show that the
controversy exceeds the threshold. A judge may well award
less than $1,500 per fax, but a recovery exceeding $5
million for the class as a whole is not “legally impossible.”
  That the controversy exceeds $5 million is insufficient,
however, if state courts have exclusive jurisdiction to
resolve suits under the Telephone Consumer Protection Act.
The district judge relied on §227(b)(3), which provides:
    A person or entity may, if otherwise permitted by
    the laws or rules of court of a State, bring in an
    appropriate court of that State—
        (A) an action based on a violation of this
        subsection or the regulations prescribed
        under this subsection to enjoin such viola-
        tion,
        (B) an action to recover for actual monetary
        loss from such a violation, or to receive
        $500 in damages for each such violation,
        whichever is greater, or
        (C) both such actions.
    If the court finds that the defendant willfully or
    knowingly violated this subsection or the regula-
    tions prescribed under this subsection, the court
    may, in its discretion, increase the amount of the
    award to an amount equal to not more than 3 times
    the amount available under subparagraph (B) of
No. 05-8024                                                  7

    this paragraph.
This is the only portion of §227 that expressly creates
a private right of action, and from its failure to authorize
litigation in federal court the district judge inferred that
state jurisdiction must be exclusive. Six courts of appeals
have come to similar conclusions—though they deal only
with the question whether suit to enforce the Telephone
Consumer Protection Act may be filed or removed under the
federal-question jurisdiction, see 28 U.S.C. §1331, and not
whether such a suit may be removed under the diversity
jurisdiction. See Foxhall Realty Law Offices, Inc. v. Telecom-
munications Premium Services, Ltd., 156 F.3d 432 (2d Cir.
1998); ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3d
Cir. 1998); International Science & Technology Institute,
Inc. v. Inacom Communications, Inc., 106 F.3d 1146 (4th
Cir. 1997); Chair King, Inc. v. Houston Cellular Corp., 131
F.3d 507 (5th Cir. 1997); Murphey v. Lanier, 204 F.3d 911
(9th Cir. 2000); Nicholson v. Hooters of Augusta, Inc., 136
F.3d 1287 (11th Cir. 1998). But if state jurisdiction really is
“exclusive,” then it knocks out §1332 as well as §1331.
   These decisions can not be reconciled with either Grable
& Sons Metal Products, Inc. v. Darue Engineering &
Manufacturing, 125 S. Ct. 2363 (2005), or Breuer v. Jim’s
Concrete of Brevard, Inc., 538 U.S. 691 (2003), both of which
came after all of the six decisions to which we have referred.
Grable resolved a conflict in the Supreme Court’s own
decisions by holding that federal jurisdiction does not
depend on the existence of a private right of action under
federal law. And Breuer held that statutory permission to
litigate a federal claim in state court does not foreclose
removal under the federal-question jurisdiction.
  The Fair Labor Standards Act provides that a plaintiff
may “maintain” an action in either state or federal court,
and Breuer insisted that a right to “maintain” an action in
state court forecloses its removal. The Justices concluded,
8                                                No. 05-8024

however, that a plaintiff’s right to litigate in state court
does not block a defendant from electing a federal forum,
because 28 U.S.C. §1441(a), the general removal provision,
allows the defendant to remove any claim under federal law
(or supported by diversity of citizenship) “[e]xcept
as otherwise expressly provided by Act of Congress”. The
word “maintain” in the FLSA is not an “express” prohibition
on removal, Breuer held.
  One may say exactly the same about the right to sue
in state court under §227(b)(3). It does not mention removal
or the general federal-question jurisdiction. It does not
declare state jurisdiction to be exclusive. Thus it does not
expressly override a defendant’s removal rights under both
§1441 (because a claim that a business violated the Tele-
phone Consumer Protection Act arises under federal law)
and the Class Action Fairness Act. Section 1445 has a list
of non-removable actions that satisfy the “express prohibi-
tion” required by §1441(a), and the Telephone Consumer
Protection Act is not on that list. Breuer collects other
express bars but does not include the Telephone Consumer
Protection Act among them. 538 U.S. at 696-97. The Class
Action Fairness Act has its own list of claims to which its
removal provisions are inapplicable, see 28 U.S.C. §1453(d)
(added by §5(a) of the new Act), and the Telephone Con-
sumer Protection Act is not on that list either.
  Other circuits, writing before Breuer, wondered what
function §227(b)(3) serves if it does not make state jurisdic-
tion exclusive. Had Congress never penned those words,
plaintiffs could have used state forums to the extent they
were generally open to civil litigation. See Testa v. Katt, 330
U.S. 386 (1947). That’s true enough, but restating
an established norm can be beneficial, if only because it
avoids any argument that for this law federal jurisdiction is
exclusive. Such contentions are frequent and may entail
decades of litigation across the thirteen circuits. See, e.g.,
Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 (1990)
No. 05-8024                                                9

(holding, after 26 years of litigation, that claims under the
Civil Rights Act of 1964 may be resolved in state as well as
federal courts); Tafflin v. Levitt, 493 U.S. 455 (1990)
(holding, after 20 years of litigation, that claims under
RICO may be resolved in state as well as federal courts).
Section 227(b)(3) may serve the further function of freeing
states from Testa’s rule that they may not discriminate
against federal claims; the clause in §227(b)(3) that the
action is proper “if otherwise permitted by the laws or rules
of court of a State” implies that each state may decide for
itself whether to entertain claims under the Telephone
Consumer Protection Act.
  Section 227(b)(3) does not say that state jurisdiction is
“exclusive”—but another part of §227 does use that word.
Section 227(f)(1) permits the states themselves to bring
actions based on a pattern or practice of violations. Section
227(f)(2) continues: “The district courts of the United
States, the United States courts of any territory, and the
District Court of the United States for the District of
Columbia shall have exclusive jurisdiction over all civil
actions brought under this subsection.” How strange it
would be to make federal courts the exclusive forum for
suits by the states, while making state courts the ex-
clusive forum for suits by private plaintiffs. But then
§227(f)(2) is explicit about exclusivity, while §227(b)(3) is
not; the natural inference is that the state forum mentioned
in §227(b)(3) is optional rather than mandatory. Likewise
the proviso that actions may be filed in state court “if
otherwise permitted by the laws or rules of court of a State”
implies that federal jurisdiction under §1331 or §1332 is
available; otherwise where would victims go if a state
elected not to entertain these suits? Our point is not that
the reference to exclusive jurisdiction in §227(f)(2) shows
that “Congress knows how” to limit litigation to one set of
courts—references to the subjective knowledge of a body
with two chambers and 535 members, and thus without a
10                                               No. 05-8024

mind, rarely facilitate interpretation—but that differences
in language within a single enactment imply differences in
meaning as an objective matter. See Akhil Reed Amar,
Intratextualism, 112 Harv. L. Rev. 747 (1999). The contrast
between §227(f)(2) and §227(b)(3) is baffling unless one
provides exclusivity and the other doesn’t.
   This means that removal is authorized not only by the
Class Action Fairness Act but also by §1441, because the
claim arises under federal law. Because §1453(c)(1) permits
appellate review of remand orders “notwithstanding section
1447(d)”, we are free to consider any potential error in the
district court’s decision, not just a mistake in application of
the Class Action Fairness Act. When a statute authorizes
interlocutory appellate review, it is the district court’s
entire decision that comes before the court for review.
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996).
Thus §1447(d), which would preclude appellate review of a
remand based wholly on a conclusion that state jurisdiction
is exclusive, does not apply when we are authorized to hear
an appeal on some other ground— and this appeal is proper
because the district judge rejected Countrywide’s argument
that the Class Action Fairness Act allows removal.
  The judgment of the district court is reversed, and the
case is remanded with instructions to decide the suit on the
merits.
No. 05-8024                                         11

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-20-05
