Under the Class Action Fairness Action of 2005, defendants may remove certain class actions to federal court if they meet the definition of “mass actions.” To qualify as a “mass action,” a lawsuit must involve “monetary relief claims of 100 or more persons [that] are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.” But consolidation or coordination of multiple claims “solely for pretrial proceedings” doesn’t count.
So may a group of more than 100 plaintiffs circumvent removal by divvying up their common claim into several smaller lawsuits? Yes, so long as they are not “proposed to be tried jointly.” But to what extent can the groups attempt to coordinate their cases without crossing the line into become a single “mass action” for CAFA purposes?
Three appellate decisions have addressed the issue over the last two years. While the three opinions are difficult to reconcile, the common thread seems to be that a trial court considering remand to state court is required to examine the plaintiffs’ consolidation proposal carefully to determine not only the plaintiffs’ intent, but the likely practical consequences of their proposal.
The first of the three cases, In re Abbott Laboratories, involved ten separate personal injury actions filed on behalf of several hundred plaintiffs against the same defendant in Illinois state court. The plaintiffs moved the Illinois Supreme Court to exercise its discretion under a court rule allowing for “consolidated pretrial, trial, or post-trial proceedings.” The plaintiffs stated that they were requesting consolidation “through trial” and “not solely for pretrial proceedings.” After the defendant removed, the federal district court remanded the cases to state court, concluding that the plaintiffs did not seek a joint trial of hundreds of claims, but merely a trial of “bellwether” claims that would be tried individually to address issues common to all claims.
The Seventh Circuit reversed the remand order and held that the separate lawsuits constituted a mass action. In addition to the plaintiffs’ acknowledgment that their request was not limited to pretrial consolidation, the court relied on the plaintiffs’ assertion that consolidation “would facilitate the efficient disposition” of the actions “without the risk of inconsistent adjudication.” The panel found it “difficult to see how a trial court could consolidate the cases as requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal issues applied to the remaining cases. In either situation, plaintiffs’ claims would be tried jointly.” Thus, the Seventh Circuit rejected the district court’s notion that a “bellwether” or “exemplar” trial would not create a mass action.
Then, in Romo v. Teva Pharmaceuticals USA, attorneys for plaintiffs in more than 40 California state court product liability actions sought to invoke a state procedural rule allowing coordination of common actions “for all purposes.” In this case, the Ninth Circuit affirmed the district court’s remand order in a split decision. The court relied heavily on the plaintiffs’ argument that coordination would avoid “duplicative discovery, waste of judicial resources and possible inconsistent judicial rulings on legal issues.” Although the plaintiffs’ petition did refer to the advantages of “[o]ne judge hearing all of the actions for all purposes,” the panel concluded that this statement should be interpreted in the context of the petition’s repeated mentions of discovery. Any ambiguity, the court held, should be resolved in favor of remand, given the accepted premise that removal statutes should be strictly construed.
The most recent decision, Atwell v. Boston Scientific Corp., involved product liability actions filed in Missouri state court against four manufacturers of transvaginal mesh medical devices. Three of the groups included claims against Boston Scientific Corporation, with each group containing fewer than 100 plaintiffs. The three groups filed similar motions proposing that each group be assigned “a single Judge for purposes of discovery and trial.” After Boston Scientific removed the cases, two federal district judges remanded the cases to state court on the ground that there was no proposal for a joint trial.
The Eighth Circuit reversed. The court noted that two of the three groups, while disavowing any desire to consolidate the cases for trial, sought assignment to a single judge who could “handle these cases for consistency of rulings, judicial economy, [and] administration of justice.” The third group, at oral argument, said the motion was intended “to have it assigned to the judge that’s going to try the case because of the complexity that’s going to occur all the way through . . . There’s going to be a process in which to select the bellwether case to try.”
While one district court had found that the “bellwether case” reference was merely “a prediction of what might happen if the judge decided to hold a mass trial,” the Eighth Circuit held that “counsel’s statements revealed the purpose of their motions—a joint assignment in which the ‘inevitable result’ will be that their cases are ‘tried jointly.’”
What to glean from these three opinions? First, whether claims are “proposed to be tried jointly” is a fact-intensive inquiry. District courts are not be permitted to look merely to titles of pleadings or to accept plaintiffs’ requests at face value, but instead are expected to parse the language in plaintiffs’ consolidation motions and at oral argument. Second, even if plaintiffs’ request is clearly limited to pretrial consolidation, a case should not be remanded if a joint trial is the inevitable result. Lastly, a proposal to try one of the consolidated case as a “bellwether” is a proposal for a joint trial for CAFA purposes.