The Ninth Circuit en banc has agreed to rehear a panel’s split decision on mass action removal under the Class Action Fairness Act that created a circuit split on the removal issue.  See Romo v. Teva Pharm. USA Inc. (9th Cir., en banc, 2/10/14).

This case presents the issue of whether removal was proper under the “mass action” provision of CAFA when plaintiffs moved for coordination pursuant to California Code of Civil Procedure section 404. CAFA authorizes federal removal for mass actions when “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 panel originally concluded that this CAFA jurisdictional requirement was not met under the totality of the circumstances in this case, and affirmed the district court’s remand order.

More than forty actions have been filed in California state courts regarding products containing
propoxyphene. Some of the parties filed a petition asking the California Judicial Council to establish a coordinated proceeding for all California propoxyphene actions pursuant to California Code of Civil Procedure section 404. The defendant then removed the cases. The district court found that there was no federal jurisdiction under CAFA because plaintiffs’ petition for coordination did not constitute an explicit proposal to try the cases jointly, and remanded the case back to state court. The appeals court panel agreed, rejecting defendant’s argument which emphasized that plaintiffs had sought coordination to avoid “inconsistent judgments,”and “conflicting determinations of liability” — which certainly sound like trial issues.

The decision created a split with cases like  In re Abbott Labs., Inc., 698 F.3d 568 (7th Cir. 2012).

En banc oral argument is set for the week of June 16, 2014.