En Banc Appeals Court Interprets CAFA Mass Action Requirement

The Ninth Circuit has weighed in on an interesting CAFA issue, holding that personal injury claims relating to prescription pain relief drugs belong in federal court when the plaintiffs sought coordination of the claims in state court. See Corber v. Xanodyne Pharm. Inc., et al., 771 F.3d 1218 (9th Cir. en banc, 11/18/14).

The issue was whether removal is proper under the “mass action” provision of the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d)(11)(B)(i), when plaintiffs in several actions moved for coordination in the state trial court pursuant to California Code of Civil Procedure section 404.  It was significant that plaintiffs moved for coordination  “for all purposes” and justified their request in part by asserting a need to avoid inconsistent judgments.  As our readers know, CAFA extends federal removal jurisdiction for certain class actions and for mass actions in which “monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” 28 U.S.C. § 1332(d)(11)(B)(i).

Here, the petitions asked the California Judicial Council to establish a coordinated proceeding for all California propoxyphene actions under section 404 of the California Code of Civil Procedure. The standards for coordination list that coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.

Plaintiffs asked for coordination of their lawsuits for reasons consistent with these factors, including concerns that there could be potential “duplicate and inconsistent rulings, orders, or judgments,” and that without coordination, “two or more separate courts ... may render different rulings on liability and other issues.” Plaintiffs argued in their petitions and the supporting memoranda that the cases should be coordinated before one judge “hearing all of the actions for all purposes,” to address “the same or substantially similar” causes of action, issues of law, and issues of material fact.

The central CAFA issue in dispute was whether plaintiffs’ petitions for coordination constituted proposals for the cases “to be tried jointly” under CAFA.  The mass action provision allows for federal jurisdiction when the monetary relief claims of 100 or more persons are “proposed to be tried jointly” on the ground that the plaintiffs' claims involve common questions of law or fact, 28 U.S.C. § 1332(d)(11)(B)(i). The district court held that it lacked jurisdiction under CAFA because plaintiffs’ petitions for coordination were not explicit proposals to try the cases jointly, and it thus remanded the cases back to state court.

Congress enacted CAFA in 2005 to “curb perceived abuses of the class action device which, in the view of Congress, had often been used to litigate multi-state or even national class actions in state courts.” Tanoh v. Dow Chem. Co., 561 F.3d 945, 952 (9th Cir.2009). CAFA further extends federal jurisdiction over “mass action” cases when several requirements are met, although only the “proposed to be tried jointly” requirement was at issue here. See 28 U.S.C. § 1332(d)(2), (6), (11)(A).

The case eventually made it to the Ninth Circuit en banc, which noted that while plaintiffs are the masters of their complaints, they are also the masters of their petitions for coordination. Stated another way, when the court assesses whether there has been a proposal for joint trial, the court must hold plaintiffs responsible for what they have said and done. Plaintiffs voluntarily asked for coordination under section 404, and they submitted memoranda in support of their petitions for coordination. The court thus carefully assessed the language of the petitions for coordination to see whether, in language or substance, they had proposed a joint trial.

The en banc court concluded that plaintiffs’ petitions for coordination were in essence proposals for joint trial. First, the petitions said that plaintiffs sought coordination “for all purposes.” “All purposes” must include the purposes of trial. So reading the petitions literally, plaintiffs, who in total number far more than 100, were seeking a joint trial. Second, the specific reasons given for coordination also supported the conclusion that a joint trial was requested. For example, plaintiffs listed potential issues in support of their petitions that would be addressed only through some form of joint trial, such as the danger of inconsistent judgments and conflicting determinations of liability.  A "proposal for a joint trial can be implicit." See also Atwell v. Bos. Scientific Corp., 740 F.3d 1160, 1163 (8th Cir.2013) (holding that proposals for joint trial may be made implicitly).

This issue of when and whether plaintiffs propose that cases be tried jointly for CAFA purposes has now been addressed by several courts. See Atwell v. Bos. Scientific Corp., 740 F.3d 1160 (8th Cir. 2013);  In re Abbott Labs. Inc, 698 F.3d 568 (7th Cir. 2012).  But see Parson v. Johnson & Johnson, 749 F.3d 879 (10th Cir. 2014).

 

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