PRECEDENTIAL
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`
`No. 08-4034
`
`FRANCIS J. FARINA, individually and on behalf
`of all those similarly situated
`
`v.
`
`NOKIA INC.; NEC AMERICA;
`ERICSSON WIRELESS COMM., INC.;
`MOTOROLA, INC.; SPRINT PCS, L.P.;
`AUDIOVOX COMMUNICATIONS CORPORATION;
`NEXTEL COMMUNICATIONS
`OF THE MID-ATLANTIC, INC.;
`MATSUSHITA CORPORATION OF AMERICA,
`also known as PANASONIC CORPORATION;
`PHILIPS ELECTRONIC NORTH AMERICA CORP.;
`QUALCOMM INCORPORATED
`also known as QUALCOMM, INC;
`SAMSUNG TELECOMMUNICATIONS AMERICA, L.P.;
`SANYO NORTH AMERICA, INC. also known as
`SANYO NORTH AMERICA GROUP;
`SONY ELECTRONICS, INC.;
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`
`No. 08-4034
`
`FRANCIS J. FARINA, individually and on behalf
`of all those similarly situated
`
`v.
`
`NOKIA INC.; NEC AMERICA;
`ERICSSON WIRELESS COMM., INC.;
`MOTOROLA, INC.; SPRINT PCS, L.P.;
`AUDIOVOX COMMUNICATIONS CORPORATION;
`NEXTEL COMMUNICATIONS
`OF THE MID-ATLANTIC, INC.;
`MATSUSHITA CORPORATION OF AMERICA,
`also known as PANASONIC CORPORATION;
`PHILIPS ELECTRONIC NORTH AMERICA CORP.;
`QUALCOMM INCORPORATED
`also known as QUALCOMM, INC;
`SAMSUNG TELECOMMUNICATIONS AMERICA, L.P.;
`SANYO NORTH AMERICA, INC. also known as
`SANYO NORTH AMERICA GROUP;
`SONY ELECTRONICS, INC.;
`
`
`
`AT&T WIRELESS SERVICES, INC.;
`CELLCO PARTNERSHIP,
`also known as VERIZON WIRELESS;
`CINGULAR WIRELESS LLC, also known as
`SOUTHWESTERN BELL WIRELESS formally known as
`SOUTHWESTERN BELL MOBILE SYSTEMS, NC.;
`CELLULAR ONE GROUP,
`also known as CELLULAR ONE;
`VOICESTREAM WIRELESS CORPORATION,
`also known as VOICESTREAM WIRELESS;
`LG ELECTRONICS MOBILECOMM U.S.A.., INC.;
`CELLULAR TELECOMMUNICATION
`INDUSTRY ASSOCIATION, also known as TIA;
`JOHN DOES NOS. 1-100
`
`Francis J. Farina,
`Apellant
`
`On Appeal from the United States District Court
`for the Eastern District of Pennsylvania
`D.C. Civil Action No. 06-cv-0724
`(Honorable John R. Padova)
`
`2
`
`
`
`Argued April 19, 2010
`Before: SCIRICA, AMBRO
`and ALARCÓN , Circuit Judges.
`*
`
`(Filed: October 22, 2010)
`
`KENNETH A. JACOBSEN, ESQUIRE (ARGUED)
`12 Orchard Lane
`Wallingford, Pennsylvania 19086
`
`MICHAEL D. DONOVAN, ESQUIRE
`Donovan Searles
`1845 Walnut Street , Suite 1100
`Philadelphia, Pennsylvania 19103
`
`JOSEPH A. O'KEEFE, ESQUIRE
`O'Keefe & Sher
`15019 Kutztown Road
`Kutztown, Pennsylvania 19530
`Attorneys for Appellant
`
`DAVID C. FREDERICK, ESQUIRE (ARGUED)
`Kellogg Huber Hansen Todd Evans & Figel
`1615 M Street, N.W., Suite 400
`Washington, D.C. 20036
`
` The Honorable Arthur L. Alarcón, United States Circuit
`*
`Judge for the Ninth Judicial Circuit, sitting by designation.
`
`3
`
`
`
`SEAMUS C. DUFFY, ESQUIRE
`Drinker Biddle & Reath
`One Logan Square
`18 & Cherry Streets
`th
`Philadelphia, Pennsylvania 19103
`Attorneys for Appellees,
`AT&T Wireless Services, Inc.
`n/k/a New Cingular Wireless Services, Inc.;
`Cingular Wireless LLC n/k/a AT&T Mobility LLC
`
`JOHN BEISNER, ESQUIRE
`Skadden Arps Slate Meagher & Flom
`1440 New York Avenue, N.W.
`Washington, D.C. 20005
`
`ROBERT C. HEIM, ESQUIRE
`RICHARD D. WALK, JR., ESQUIRE
`Dechert
`Cira Centre, 18 Floor
`th
`2929 Arch Street
`Philadelphia, Pennsylvania 19104
`Attorneys for Appellee,
`Cellco Partnership d/b/a Verizon Wireless
`
`ANDREW G. McBRIDE, ESQUIRE
`JOSHUA S. TURNER, ESQUIRE
`Wiley Rein
`1776 K Street, N.W.
`
`4
`
`
`
`Washington, D.C. 20006
`Attorneys for Appellees,
`Cellco Partnership d/b/a Verizon Wireless;
`Nokia Inc.
`
`DANIEL T. FITCH, ESQUIRE
`Stradley Ronon Stevens & Young
`2600 One Commerce Square
`2005 Market Street
`Philadelphia, Pennsylvania 19103
`
`JOHN B. ISBISTER, ESQUIRE
`Tydings & Rosenberg
`100 East Pratt Street, 26 Floor
`th
`Baltimore, Maryland 21202
`Attorneys for Appellee,
`Samsung Telecommunications America, LLC
`
`SUSAN K. HERSCHEL, ESQUIRE
`Hoyle Fickler Herschel & Mathes
`One South Broad Street, Suite 1500
`Philadelphia, Pennsylvania 19107
`
`EUGENE A. SCHOON, ESQUIRE
`Sidley Austin
`One South Dearborn Street
`Chicago, Illinois 60603
`Attorneys for Appellee,
`
`5
`
`
`
`Voicestream Wireless Corporation
`n/k/a T-Mobile USA, Inc.
`
`EDWARD M. CRANE, ESQUIRE
`Skadden Arps Slate Meagher & Flom
`155 North Wacker Drive
`Chicago, Illinois 60606
`
`STEVEN A. HABER, ESQUIRE
`Obermayer Rebmann Maxwell & Hippel
`One Penn Center, 19 Floor
`th
`1617 John F. Kennedy Boulevard
`Philadelphia, Pennsylvania 19103
`Attorneys for Appellees,
`Nextel Communications of the Mid-Atlantic, Inc.;
`Nextel Boost of the Mid-Atlantic LLC; Nextel West
`Corp.; Nextel Boost West LLC
`
`JAMES P. ULWICK, ESQUIRE
`Kramon & Graham
`Commerce Place, Suite 2600
`One South Street
`Baltimore, Maryland 21202
`Attorney for Appellee,
`NEC Corporation of America
`
`FRANCIS A. CITERA, ESQUIRE
`Greenberg Traurig
`
`6
`
`
`
`77 West Wacker Drive, Suite 2500
`Chicago, Illinois 60601
`
`BRIAN T. FEENEY, ESQUIRE
`Greenberg Traurig
`2700 Two Commerce Square
`2001 Market Street
`Philadelphia, Pennsylvania 19103
`
`FRANCINE F. GRIESING, ESQUIRE
`Griesing Law
`1717 Arch Street, Suite 360
`Philadelphia, Pennsylvania 19103
`Attorneys for Appellees,
`Qualcomm, Inc.;
`Sony Electronics, Inc.
`
`HOWARD D. SCHER, ESQUIRE
`Buchanan Ingersoll & Rooney
`Two Liberty Place, Suite 3200
`50 South 16th Street
`Philadelphia, Pennsylvania 19102
`Attorney for Appellee,
`Cellular One Group
`
`WALTER H. SWAYZE, III, ESQUIRE
`Segal McCambridge Singer & Mahoney
`United Plaza, Suite 1700
`
`7
`
`
`
`30 South 17th Street
`Philadelphia, Pennsylvania 19103
`Attorney for Appellee,
`Panasonic Corp. of North America f/k/a
`Matsushita Electric Corporation of America
`
`DAVID G.C. ARNOLD, ESQUIRE
`915 Montgomery Avenue, Suite 109
`Narberth, Pennsylvania 19072
`
`LINDA B. EPSTEIN, ESQUIRE
`Hughes Hubbard & Reed
`1775 I Street, N.W., Suite 600
`Washington, D.C. 20006
`Attorneys for Appellee,
`LG Electronics Mobilecomm U.S.A., Inc.
`
`ROCHELLE M. FEDULLO, ESQUIRE
`Wilson Elser Moskowitz Edelman & Dicker
`The Curtis Center, Suite 1130 East
`Independence Square West
`601 Walnut Street
`Philadelphia, Pennsylvania 19106
`Attorney for Appellee,
`Sanyo North America, Inc.
`
`ASHLEY R. ADAMS, ESQUIRE
`Akin Gump Strauss Hauer & Feld
`
`8
`
`
`
`1111 Louisiana Street, 44th Floor
`Houston, Texas 77002
`
`FRED I. WILLIAMS, ESQUIRE
`Akin Gump Strauss Hauer & Feld
`300 West Sixth Street, Suite 2100
`Austin, Texas 78701
`
`STEVEN M. ZAGER, ESQUIRE
`Akin Gump Strauss Hauer & Feld
`One Bryant Park
`New York, New York 10036
`Attorneys for Appellee,
`Nokia, Inc.
`
`WALTER L. McDONOUGH, ESQUIRE
`Swartz Campbell
`Two Liberty Place, 28 Floor
`th
`50 South 16th Street
`Philadelphia, Pennsylvania 19102
`Attorney for Appellee,
`Sprint Corp.
`
`STEPHAN G. WEIL, ESQUIRE
`Dickstein Shapiro
`1825 Eye Street, N.W.
`Washington, D.C. 20006
`
`9
`
`
`
`CRAIG E. ZIEGLER, ESQUIRE
`Montgomery McCracken Walker & Rhoads
`123 South Broad Street, 24 Floor
`th
`Philadelphia, Pennsylvania 19109
`Attorneys for Appellee,
`Audiovox Communications Corporation
`
`MARK A. ARONCHICK, ESQUIRE
`ROBERT L. EBBY, ESQUIRE
`Hangley Aronchick Segal & Pudlin
`One Logan Square, 27 Floor
`th
`18 & Cherry Streets
`th
`Philadelphia, Pennsylvania 19103
`
`CHARLES L. BABCOCK, ESQUIRE
`DAVID T. MORAN, ESQUIRE
`Jackson Walker
`901 Main Street, Suite 6000
`Dallas, Texas 75202
`Attorneys for Appellee,
`Ericsson Inc.
`
`RAYMOND B. BIAGINI, ESQUIRE
`LISA M. NORRETT, ESQUIRE
`McKenna Long & Aldridge
`1900 K Street, N.W.
`Washington, D.C. 20006
`
`10
`
`
`
`MARY C. DOHERTY, ESQUIRE
`Marshall Dennehey Warner Coleman & Goggin
`1845 Walnut Street, 21 Floor
`st
`Philadelphia, Pennsylvania 19103
`Attorneys for Appellee,
`Philips Electronics North America Corporation
`
`ROBERT E. WELSH, JR., ESQUIRE
`Welsh & Recker
`2000 Market Street, Suite 2903
`Philadelphia, Pennsylvania 19103
`Attorney for Appellee,
`Cellular Telecommunication Industry Association
`
`TERRENCE J. DEE, ESQUIRE
`MICHAEL B. SLADE, ESQUIRE
`Kirkland & Ellis
`300 North LaSalle Street, Suite 2400
`Chicago, Illinois 60654
`Attorneys for Appellee,
`Motorola Inc.
`
`JAMES M. MESNARD, ESQUIRE
`Seyfarth Shaw
`975 F Street, N.W.
`Washington, D.C. 20004
`Attorney for Appellee,
`Telecommunications Industry Association
`
`11
`
`
`
`OPINION OF THE COURT
`
`SCIRICA, Circuit Judge.
`
`Appellant Francis J. Farina brought this class action
`against various cell phone manufacturers and retailers of
`wireless handheld telephones. He appeals from the dismissal of
`his complaint on the ground that his claims are preempted by
`regulations promulgated by the Federal Communications
`Commission. We will affirm.
`
`I.
`
`Farina represents a putative class consisting of all past,
`current, and future Pennsylvania purchasers and lessees of cell
`phones who have not been diagnosed with an injury or illness
`resulting from their cell phone usage. Farina’s claims are based
`on the allegation that cell phones, as currently manufactured, are
`unsafe to be operated without headsets because the customary
`manner in which they are used—with the user holding the phone
`so that the antenna is positioned next to his head—exposes the
`user to dangerous amounts of radio frequency (“RF”) radiation.
`Farina alleges the marketing of cell phones as safe for use
`without headsets violates several provisions of Pennsylvania
`law.
`
`12
`
`
`
`A.
`
`A cell phone functions by transmitting information
`between its low-powered radio transmitter and a base station,
`usually a tower containing a large antenna. See generally
`Pinney v. Nokia, Inc., 402 F.3d 430, 439–40 (4th Cir. 2005).
`Each base station reaches a relatively small area, or cell, and as
`a user moves from cell to cell, the signal must transfer from base
`station to base station. Id. at 440. When cell phones
`communicate with base stations, they emit RF energy. Id. The
`strength of a cell phone signal, and hence its range, has been
`positively correlated with the intensity of its RF emissions. See
`In re Rural Telephone Cos., 18 F.C.C.R. 20802, 20829 & n.114
`[hereinafter NPR Rural]
`(2003)
`(notice of proposed
`rulemaking).1
`
` The power level of a cell phone, measured in watts, is
`1
`correlated with the range of a cell phone signal. See NPR Rural,
`18 F.C.C.R. at 20829 (“One way to increase the range of radio
`systems is by increasing power levels.”); id. at 20830
`(“[R]eceived signal levels decrease exponentially as the receiver
`moves farther from the transmitter . . . .”). The intensity of RF
`radiation is measured in watts per kilogram. See 47 C.F.R. §
`2.1093(d). Thus, the intensity of RF radiation is correlated with
`the power level and, therefore, range. See generally FCC,
`Office of Engineering & Technology, Questions and Answers
`about Biological Effects and Potential Hazards of
`Radiofrequency Electromagnetic Fields, OET Bull. No. 56, 5–6
`
`13
`
`
`
`The science is clear that at high levels RF radiation can
`cause adverse “thermal” effects resulting from the heating of
`human tissue. See generally FCC, Office of Engineering &
`Technology, Questions and Answers about Biological Effects
`and Potential Hazards of Radiofrequency Electromagnetic
`Fields, OET Bull. No. 56, 6–7 (4th ed. Aug. 1999) [hereinafter
`a v a i l a b l e
`a t
`O E T B u l l e t i n ] ,
`
`http://www.fcc.gov/Bureaus/Engineering_Technology/Docum
`ents/bulletins/oet56/oet56e4.pdf. More controversial is the
`purported existence of “non-thermal” effects caused by lower
`levels of RF radiation. Farina alleges that over the past five
`decades “dozens of peer reviewed research papers were
`published which, individually and collectively, raised serious
`and credible questions regarding whether the RF[ radiation] to
`which [cell phone] users were and are exposed posed a risk or
`threat to their health.” Third Am. Compl. ¶ 51; see also id. ¶¶
`79–86, 90–98 (describing findings from numerous studies and
`laboratory tests). According to the FCC, however, “the evidence
`for production of harmful biological effects [from low-level RF
`radiation] is ambiguous and unproven.” OET Bulletin 8.
`Results from studies have been “inconclusive,” and “while the
`possibility of ‘non-thermal’ biological effects may exist,
`whether or not such effects might indicate a human health
`hazard is not presently known.” Id. In light of the present state
`
`a t
`a v a i l a b l e
`1 9 9 9 ) ,
`e d . A u g .
`( 4 t h
`http://www.fcc.gov/Bureaus/Engineering_Technology/Docum
`ents/bulletins/oet56/oet56e4.pdf.
`
`14
`
`
`
`of the science, the FCC has stated that any cell phone legally
`sold in the United States is a “safe” phone. App. 691.
`
`B.
`
`Federal regulation of radio communications can be traced
`back a century, to the Wireless Ship Act of 1910, ch. 379, 36
`Stat. 629. See Nat’l Broad. Co. v. United States, 319 U.S. 190,
`210 (1943). Federal control over the medium was extended by
`the Radio-Communications Act of 1912, ch. 287, 37 Stat. 302,
`which mandated federal licensing of the use of radio
`frequencies, Nat’l Broad. Co., 319 U.S. at 210, and was
`cemented by the Federal Communications Act of 1934, ch. 652,
`48 Stat. 1064 (“FCA”), Nat’l Broad. Co., 319 U.S. at 213–14.
`The FCA was enacted “[f]or the purpose of regulating interstate
`and foreign commerce in communication by wire and radio so
`as to make available . . . a rapid, efficient, Nation-wide, and
`world-wide wire and radio communication service with
`adequate facilities at reasonable charges . . . .” 47 U.S.C. § 151.
`To that end, the FCA established the FCC, which was endowed
`with broad authority
`to
`license and
`regulate
`radio
`communications. See Nat’l Broad. Co., 319 U.S. at 214–16.
`
`The FCC’s jurisdiction extends to wireless telephone
`service, see In re An Inquiry Into the Use of the Bands 825–845
`MHz and 870–890 MHz for Cellular Communications Systems,
`86 F.C.C.2d 469, 470 (1981) [hereinafter Cellular Commc’ns],
`and FCC authority over the technical aspects of radio
`communications is “exclusive,” Head v. N.M. Bd. of Exam’rs in
`
`15
`
`
`
`Optometry, 374 U.S. 424, 430 n.6 (1963). The FCC is charged
`with fostering the development of an efficient wireless network,
`47 U.S.C. § 151, and an essential characteristic of an efficient
`network is nationwide accessibility and compatibility, see
`Cellular Commc’ns, 86 F.C.C.2d at 503 (“Throughout the
`cellular proceeding an essential objective has been for cellular
`service to be designed to achieve nationwide compatibility. . . .
`[A] cellular subscriber traveling outside of his or her local
`service area should be able to communicate over a cellular
`system in another city.”). Moreover, the FCC has long asserted
`that uniformity in the technical standards governing wireless
`services is necessary to ensure an efficient nationwide system.
`See id. at 504–05 (“[W]e are asserting federal primacy over the
`areas of technical standards and competitive market structure for
`cellular service.”); see also In re Petition of the Conn. Dep’t
`Pub. Util. Control, 10 F.C.C.R. 7025, 7034 (1995) (“Congress
`intended . . . to establish a national regulatory policy for
`[commercial mobile radio services], not a policy that is
`balkanized state-by-state.” (footnote omitted)).
`
`The FCC has regulated human exposure to RF emissions
`only since 1985. See In re Responsibility of the F.C.C. to
`Consider Biological Effects of Radiofrequency Radiation, 100
`F.C.C.2d 543, 544 (1985) [hereinafter Responsibility]. The
`FCC’s RF regulations were promulgated to satisfy the
`Commission’s obligations under the National Environmental
`
`16
`
`
`
`Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq.2
`NEPA obligates all federal agencies—not just the FCC—to
`consider and identify the environmental impact of any “major”
`action that “significantly affect[s] the quality of the human
`environment.” 42 U.S.C. § 4332(2)(C). Although the FCC does
`not possess individual agency expertise with respect to the
`development of public health and safety standards, see
`Responsibility, 100 F.C.C.2d at 551, the Commission concluded
`that NEPA obligated it to regulate RF radiation, see id. at 546.
`After seeking input from other federal agencies and interested
`3
`parties, the FCC adopted as its own standard the then-current
`American National Standards Institute Committee (“ANSI”)
`standard governing RF emissions. Id. at 551. Notably, these
`regulations did not extend to cell phones. See id. at 561–62.
`
` Although RF standards were issued to satisfy NEPA
`2
`obligations, the regulations were promulgated pursuant to the
`FCC’s rulemaking authority under, inter alia, 47 U.S.C. §§
`154(i) and 303(r).
`
` In particular, the FCC has solicited guidance on its RF
`3
`regulations from the Food and Drug Administration, the
`Environmental Protection Agency, the Occupational Safety and
`Health Administration, the National Institute for Occupational
`Safety and Health, the National Telecommunications and
`Information Administration, and the Department of Defense.
`See OET Bulletin 27.
`
`17
`
`
`
`In 1993, prompted by ANSI’s revision of its standards in
`collaboration with the Institute of Electrical and Electronic
`Engineers, Inc. (“IEEE”), the FCC began rulemaking procedures
`to determine whether it should strengthen its regulations. See In
`re Guidelines for Evaluating the Environmental Effects of
`Radiofrequency Radiation, 8 F.C.C.R. 2849, 2849 (1993)
`[hereinafter NPR FCC First Order] (notice of proposed
`rulemaking). Among the proposed changes was the extension
`of RF regulations to cover cell phones. Id. at 2851. During the
`pendency of this notice-and-comment period, Congress passed
`the Telecommunications Act of 1996 (“TCA”), which directed
`the FCC to “make effective rules regarding the environmental
`effects of [RF] emissions” within 180 days of the TCA’s
`enactment. Pub. L. No. 104-104, § 704(b), 110 Stat. 56, 152.
`In addition, the TCA expanded the FCC’s authority to preempt
`certain state and local regulations of RF emissions. See 47
`U.S.C. § 332(c).
`
`In response to the TCA, the FCC adopted a hybrid of the
`ANSI/IEEE standard and the standard recommended by the
`National Council on Radiation Protection and Measurements
` See In re Guidelines
`for Evaluating
`the
`(“NCRP”).
`Environmental Effects of Radiofrequency Radiation, 11
`F.C.C.R. 15123, 15134–35, 15146–47 (1996) [hereinafter FCC
`First Order]. These regulations, reflecting a “consensus view
`of the federal agencies responsible for matters relating to the
`public safety and health,” id. at 15124, limited RF emissions
`from cell phones for the first time, id. at 15146–47. In
`
`18
`
`
`
`particular, the FCC adopted a maximum specific absorption rate
`(“SAR”)—which measures the amount of energy absorbed in
`human
`tissue—in “uncontrolled” environments of 0.08
`4
`watts/kilogram (W/kg) as averaged over the whole-body and 1.6
`W/kg spatial peak as averaged over any 1 gram of tissue, as
`measured for frequencies between 100 kHz and 6 GHz. Id. at
`15140–41, 15146–47; see also 47 C.F.R. § 2.1093(d)(2). The
`5
`Commission recognized that research on the safety of RF
`radiation was ongoing, and pledged to monitor the science “in
`order to ensure that our guidelines continue to be appropriate
`
` The ANSI/IEEE and NCRP standards drew distinctions
`4
`between exposure in “occupational”/“controlled” environments
`and exposure
`in “general population”/“uncontrolled”
`environments, which were subsequently adopted by the FCC.
`Id. at 15139. The occupational/controlled exposure standard
`applies to individuals exposed as a result of their employment,
`who are fully aware of possible exposure, and can exercise
`control over it. Id. The general population/uncontrolled
`exposure standard applies to the general public or those
`individuals exposed as a result of their employment who are
`either unaware of exposure or cannot exercise control over it.
`Id.
`
` The SAR maximum for general population/uncontrolled
`5
`exposure contains exemptions for exposure to the hands, wrists,
`feet, and ankles, at which the spatial peak SAR is 4 W/kg, as
`averaged over any 10 grams of tissue. 47 C.F.R. § 2.1093(d)(2).
`
`19
`
`
`
`and scientifically valid.” FCC First Order, 11 F.C.C.R. at
`15125. The FCC reaffirmed the standards relevant to this case
`one year later. See In re Procedures for Reviewing Requests for
`Relief From State and Local Regulations, 12 F.C.C.R. 13494,
`13505 (1997) [hereinafter FCC Second Order]. The current
`standards are codified at 47 C.F.R. § 2.1093(d), and all cell
`phones sold in the United States must comply with those
`regulations, 47 C.F.R. §§ 2.803(a)(1), 24.51–.52.
`
`C.
`
`The complaint before us in this appeal is Farina’s Third
`Amended Complaint. The procedural history of this case is
`complex, winding through state court, two federal district courts,
`and the Judicial Panel on Multidistrict Litigation. Because the
`specifics of the procedural history are implicated by Farina’s
`challenge to our subject matter jurisdiction, we set them out in
`detail.
`
`Farina initially brought this putative class action in the
`Philadelphia County Court of Common Pleas, asserting claims
`for: (1) civil conspiracy to market and sell defective cell phones
`by collective means, including the suppression of information
`regarding the health risks of RF emissions and the deliberate
`misleading of the public as to those risks; (2) breach of implied
`warranties of merchantability and fitness for a particular
`purpose, on the ground that cell phones sold without headsets
`were unsafe to use; (3) breach of express warranty of safe usage;
`(4) violation of the Magnuson-Moss Warranty Improvement
`
`20
`
`
`
`Act, 15 U.S.C. §§ 2301–12, on the basis of breach of express
`and implied warranties; (5) violation of the Pennsylvania Unfair
`Trade Practices and Consumer Protection Law; and (6) a
`6
`judgment under the Pennsylvania Declaratory Judgments Act,
`42 Pa. Cons. Stat. § 7531, et seq., declaring that defendants’
`conduct violated Pennsylvania law and requiring defendants to
`award the class members with headsets.
`
`Farina filed his initial complaint on April 19, 2001.
`Defendants subsequently removed the case to the United States
`District Court for the Eastern District of Pennsylvania. Farina’s
`case was one of a set of parallel cases alleging defects in cell
`phones arising from the health risks of RF radiation that were
`brought in state courts in Pennsylvania, Maryland, New York,
`Georgia, and Louisiana. The cases were consolidated by the
`7
`Judicial Panel on Multidistrict Litigation and transferred to the
`United States District Court for the District of Maryland
`(“Maryland court”). In re Wireless Tel. Radio Frequency
`
` Farina has since voluntarily dismissed this claim, on the
`6
`basis of our holding in Hunt v. U.S. Tobacco Co., 538 F.3d 217
`(3d Cir. 2008).
`
` The Georgia case, Gimpelson v. Nokia, Inc., was pending at
`7
`the time of the initial consolidation, see In re Wireless Tel.
`Radio Frequency Emissions Prods. Liab. Litig., 170 F. Supp. 2d
`1356, 1357 n.2 (J.P.M.L. 2001), but was subsequently
`consolidated as a tag-along action.
`
`21
`
`
`
`Emissions Prods. Liab. Litig., 170 F. Supp. 2d 1356, 1358
`(J.P.M.L. 2001). Four of these cases, including Farina’s, were
`removed to federal court on the basis of federal-question
`jurisdiction. The Louisiana case, Naquin v. Nokia Mobile
`Phones, Inc., was removed on the basis of diversity jurisdiction.
`The plaintiffs in all cases, except for the Naquin plaintiffs, filed
`a consolidated motion to remand before the Maryland court.
`The court denied the motion, concluding that federal-question
`jurisdiction was raised by the issue of federal preemption. In re
`Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig.,
`216 F. Supp. 2d 474, 491–92 (D. Md. 2002). The court then
`granted the defendants’ motion to dismiss, concluding that FCC
`regulations of RF emissions preempted the plaintiffs’ suit. In re
`Wireless Tel. Radio Frequency Emissions Prods. Liab. Litig.,
`248 F. Supp. 2d 452, 467 (D. Md. 2003).
`
`The plaintiffs appealed to the Court of Appeals for the
`Fourth Circuit, which reversed. Pinney, 402 F.3d at 439. The
`court found subject matter
`jurisdiction
`lacking for
`the
`plaintiffs—including Farina—in the cases other than Naquin.
`Id. at 451. In particular, the issue of federal preemption did not
`arise on the face of a “well-pleaded complaint,” but merely
`constituted an anticipated affirmative defense, which could not
`confer jurisdiction. Id. at 445–46. It similarly rejected
`application of
`the
`jurisdictional doctrine of complete
`preemption. Id. at 451. However, for the Naquin plaintiffs, the
`court reached the merits of the preemption issue—as it had
`jurisdiction on the basis of diversity—and concluded the FCA,
`
`22
`
`
`
`as amended by the TCA, did not preempt these claims. Id. at
`459.
`
`Accordingly, because the Fourth Circuit concluded
`federal jurisdiction did not exist over Farina’s claims, his case
`was remanded back to the Court of Common Pleas. On
`December 23, 2005, Farina filed a Second Amended Complaint,
`adding, for the first time, LG Electronics, Inc., a Korean cell
`phone manufacturer, and
`its American subsidiary, LG
`Electronics U.S.A., Inc. (collectively, “LG defendants”). The
`complaint was served on December 27, and no defendant sought
`removal within thirty days, as required by 28 U.S.C. § 1446(b).
`
`Shortly after the filing of the Second Amended
`Complaint, LG defendants’ counsel allegedly approached
`Farina’s counsel, seeking to drop the listed LG corporations
`from the suit—who purportedly had no connection to the
`manufacture or retail of cell phones—and substitute a different
`American subsidiary, LG Electronics MobileComm U.S.A., Inc.
`(“LG MobileComm”). According to Farina, his counsel
`hesitated to amend the complaint, as it had filed the Second
`Amended Complaint only three weeks prior, and sought instead
`to file a Praecipe to Amend Caption and Substitute Party. But,
`as Farina alleges, LG defendants’ counsel insisted upon a formal
`amended complaint, and Farina acquiesced, filing the Third
`8
`
` This insistence was ostensibly due to Pa. R. Civ. P. 1714,
`8
`which requires court approval for the discontinuation of any
`class action.
`
`23
`
`
`
`Amended Complaint on February 9, 2006. The Third Amended
`Complaint was identical to the Second Amended Complaint in
`all material respects, with the exception of the replacement of
`LG defendants with LG MobileComm.
`
`Although LG defendants had not removed the case within
`thirty days of the date they were added to the Second Amended
`Complaint, LG MobileComm removed the action on February
`17, 2006—well within 30 days of the filing of the Third
`Amended Complaint—asserting jurisdiction existed under the
`Class Action Fairness Act, 28 U.S.C. § 1332(d). Defendants
`then sought to stay the proceedings pending a transfer to the
`Judicial Panel on Multidistrict Litigation, which the District
`Court granted on March 22. The case returned to the Judicial
`Panel on Multidistrict Litigation, which transferred the case
`back to the Maryland court on June 20. Farina had filed a
`9
`Motion to Vacate Conditional Transfer Order prior to the
`transfer to the Maryland court, based primarily on the absence
`of federal subject matter jurisdiction. The Judicial Panel on
`Multidistrict Litigation did not address the jurisdictional issue in
`its transfer order, stating “[t]he pending motion to remand to
`state court can be presented to and decided by the transferee
`judge.” App. 331. On November 10, Farina filed an Amended
`
` The District Court listed the date of the transfer as June 26.
`9
`According to the docket, the transfer order appears to have been
`issued on June 20.
`
`24
`
`
`
` After a hearing
`Motion to Remand before the Maryland court.
`10
`on the motion to remand to state court, the Maryland court made
`no decision on the issue, instead transferring the case back to the
`Eastern District of Pennsylvania.
`
` The District Court ultimately denied Farina’s motion.
`The court held CAFA provided grounds for federal jurisdiction,
`and Farina’s failure to move to remand within thirty days of LG
`MobileComm’s removal waived the defects in defendants’
`initial failure to remove within the required thirty-day period
`after the filing of the Second Amended Complaint. In a separate
`order, the District Court addressed the merits of the preemption
`issue, concluding that the FCC’s regulations governing RF
`emissions preempted Farina’s claims. Farina timely appealed.
`
`II.
`
`“[E]very federal appellate court has a special obligation
`to ‘satisfy itself not only of its own jurisdiction, but also that of
`
` As the District Court recognized, there is some
`10
`disagreement as to when the motion for remand was filed.
`Defendants argued below that the November 10 motion
`constituted the initial motion for remand. Farina, on the other
`hand, contended this motion was merely an amended motion for
`remand, and that the initial motion was included in the motion
`to vacate the transfer order, which was docketed on April 12.
`As discussed below, the difference between these dates is
`immaterial.
`
`25
`
`
`
`the lower courts in a cause under review . . . .’” Bender v.
`Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (quoting
`Mitchell v. Maurer, 293 US. 237, 244 (1934))). We review a
`district court’s determination of its own subject matter
`jurisdiction de novo. Emerald Investors Trust v. Gaunt
`Parsippany Partners, 492 F.3d 192, 197 (3d Cir. 2007).
`
`A.
`
`There is no dispute that this case, in its current
`incarnation, satisfies the substantive requirements of CAFA.11
`See Def. LG MobileComm’s Notice of Removal 6–9. But
`CAFA is not retroactively applicable. It applies only to civil
`actions “commenced on or after the date of enactment,”
`February 18, 2005. CAFA, Pub. L. No. 109-2, § 9, 119 Stat. 4,
`14 (2005) (codified as Note to 28 U.S.C. § 1332).
`
`CAFA itself provides no definition of commencement.
`We have not yet addressed the issue, but most of our sister
`circuits have looked to state law for the definition of
`commencement. See Braud v. Transp. Serv. Co. of Ill., 445 F.3d
`801, 803 (5th Cir. 2006) (“[T]he courts of appeals that have
`examined the issue have unanimously held that when a lawsuit
`
` CAFA grants federal jurisdiction over class actions in
`11
`which the aggregate amount in controversy exceeds $5,000,000,
`the parties are minimally diverse, and the members of all
`proposed plaintiff classes are equal to or greater than 100 in
`number. 28 U.S.C. § 1332(d).
`
`26
`
`
`
`is initially ‘commenced’ for purposes of CAFA is determined by
`state law. We agree.” (footnote omitted)); Schorsch v. Hewlett-
`Packard Co., 417 F.3d 748, 750 (7th Cir. 2005) (“[S]tate rather
`than federal practice must supply the rule of decision.”); see also
`Smith v. Nationwide Prop. and Cas. Ins. Co., 505 F.3d 401, 405
`(6th Cir. 2007); Plubell v. Merck & Co., 434 F.3d 1070, 1071
`(8th Cir. 2006); Bush v. Cheaptickets, Inc., 425 F.3d 683, 686
`(9th Cir. 2005); Natale v. Pfizer, Inc., 424 F.3d 43, 44 (1st Cir.
`2005). But see Prime Care of Ne. Kan., LLC v. Humana Ins.
`Co., 447 F.3d 1284, 1289 n.6 (10th Cir. 2006) (“[W]e do not
`express an opinion as to whether federal or state law should
`control.”).
`
`We agree that state law should govern the inquiry.
`CAFA operates as an expansion of diversity jurisdiction. See
`Bush, 425 F.3d at 686. The Act expressly authorizes the
`removal of qualifying class actions to federal court. See Pub. L.
`No. 109-2, § 5, 119 Stat. 4, 12–13 (codified at 28 U.S.C. §
`1453). It envisions and applies to cases that are initially filed in
`state court and subsequently removed to federal court. For a
`case initially brought in state court, state law should govern
`when the case commences. Cf. Ragan v. Merchs. Transfer &
`Warehouse Co., 337 U.S. 530, 533–34 (1949) (applying state
`law to determine commencement for statute of limitations
`purposes); Herb v. Pitcairn, 324 U.S. 117, 120 (1945)
`(“Whether any case is pending in the Illinois courts is a question
`to be determined by Illinois law . . . .”). Accordingly, we look
`to Pennsylvania law.
`
`27
`
`
`
`The filing of an original complaint in Pennsylvania court
`commences an action. See Pa. R. Civ. P. 1007 (“An action may
`be commenced by filing with the prothonotary (1) a praecipe for
`a writ of summons, or (2) a complaint.”). As such, the filing of
`the original complaint commenced a civil action for the
`purposes of CAFA. Farina’s initial complaint was filed on April
`19, 2001, clearly before CAFA’s enactment. But the Second
`Amended Complaint, filed on December 23, 2005, and the Third
`Amended Complaint, filed on February 9, 2006, were filed after
`the date of CAFA’s enactment. If either of these complaints
`constituted the commencement of a new action, CAFA’s
`jurisdictional grant would apply. The issue before us, then, is
`whether the amendment of the original complaint in the Second
`Amended Complaint or
`the Third Amended Complaint
`commenced a new case.
`
`The case law has coalesced around three approaches to
`the effect of amendments
`to complaints on CAFA
`commencement. The first approach, adopted by the Court of
`Appeals for the Ninth Circuit, ignores amendments and looks
`only to the filing of the original complaint for commencement.
`McAtee v. Capital One, F.S.B., 479 F.3d 1143, 1147–48 (9th
`Cir. 2007) (interpreting California law to hold that an action “is
`commenced for purposes of CAFA when a complaint is filed,
`irrespective of any later amendment of that complaint. . . . Any
`amendment of that complaint—whether to add new causes of
`action, to add or replace plaintiffs, or to add or replace
`
`28
`
`
`
`defendants—does not change the commencement date”).12
`
`The other two approaches both apply state-law principles
`governing the relation-back of pleadings for statutes of
`limitations to determine whether an amended complaint is
`distinct enough from the original complaint to commence a new
`case. See Prime Care, 44
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