Ninth Circuit Panel Eviscerates 2014 ‘En Banc’ Decision That Protects CAFA Removal Rights

9thCirCongress adopted the Class Action Fairness Act (CAFA) in 2005 in response to concerns that plaintiffs’ lawyers were gaming the system to prevent removal of class actions and “mass actions” (lawsuits with more than 100 named plaintiffs) from state court to federal court. CAFA provided state-court defendants the option of removing a case to federal court when the suit is both substantial and involves numerous plaintiffs, even when complete diversity of citizenship is lacking.

Immediately thereafter, the plaintiffs’ bar began to undermine CAFA by coming up with new ways to keep their mass lawsuits in state courts. Among other schemes, plaintiffs’ lawyers divided their clients (often numbering in the thousands) among multiple lawsuits in the same state court, thereby ensuring that CAFA’s 100-plaintiff threshold would not be surpassed in any one lawsuit. An excellent 2014 en banc decision from the U.S. Court of Appeals for the Ninth Circuit imposed strict limits on use of this removal-defeating tactic. The court held in Corber v. Xanodyne Pharmaceuticals, Inc. that if, after filing their separate lawsuits, the plaintiffs ask the state court to coordinate the cases for all purposes, the cases should be deemed unified and thus removable under CAFA’s mass-action provision. But a Ninth Circuit panel decision this month, Briggs v. Merck Sharp & Dohme, creates a roadmap that allows plaintiffs to coordinate their lawsuits yet avoid removal—thereby eviscerating Corber. The decision suggests that the panel (Judges Fletcher, Berzon, and Paez) feels free to thumb their collective nose at Ninth Circuit en banc decisions; it ought to be reversed.

The panel decision involved product-liability claims filed against several pharmaceutical companies that market incretin-based drugs designed to treat diabetes. Thousands of such suits are pending in both state and federal court in California. Among the lawsuits at issue in Briggs was one filed by “the Kreis plaintiffs,” a suit filed in 2014 in California state court by just fewer than 100 plaintiffs. The plaintiffs’ lawyers soon thereafter filed a petition asking that their lawsuit be consolidated with hundreds of similar tort claims then pending before a state court judge in San Diego. The petition was filed under Section 404, a California statute that provides for coordination of similar lawsuits before a single judge.

The drug companies removed the case to federal court under CAFA, asserting that the effect of the Section 404 petition was to increase the number of plaintiffs whose claims were to be tried jointly to more than 100. The district court denied the plaintiffs’ remand motion in light of the Ninth Circuit’s decision in Corber. That en banc decision held that plaintiffs should be deemed to intend that their cases be “tried jointly” (a prerequisite for CAFA mass action removal) if they petition to have the cases coordinated and there is no indication that individual cases will be returned (following completion of discovery) to the originating judge for trial.

The panel’s August 6 decision reversed the district court and ordered that the claims of the Kreis plaintiffs be remanded to state court. How did the panel seek to distinguish the seemingly controlling Corber precedent? Simple. Counsel for the Kreis plaintiffs made the the following statement when filing their Section 404 coordination petition, words that plaintiffs’ counsel in Corber had not uttered when they filed their similar Section 404 petition: “Petitioners do not seek joint trials of any cases or plaintiffs, but rather, all claims shall be tried individually.”

If uttering those magic words is now deemed sufficient in the Ninth Circuit to defeat mass-action removal, mass-action removals will cease to exist—every plaintiffs’ attorney will recite an identical incantation in all future Section 404 petitions. They will be able to make such claims because the phrase “joint trials” has multiple meanings depending on the context in which it is used. When plaintiffs’ lawyers state that they do not intend joint trials, they mean that they will not ask the coordinating judge to conduct one proceeding at which a single jury will hear the claims of 100 or more plaintiffs simultaneously.

But as Corber explained, that was not the main sort of joint trial that Congress had in mind when, in CAFA, it authorized removal of mass actions in which the claims of “100 or more persons are proposed to be tried jointly.” 28 U.S.C. § 1332(d)(11)(B)(i). Indeed, it is practically unheard of for any court to empanel a single jury to simultaneously hear the damage claims of 100 separate individuals. Rather, Corber explained, CAFA’s “tried jointly” requirement merely requires that plaintiffs’ counsel have proposed that their clients’ claims be tried in conjunction with one another. For example, it is common for a judge with numerous similar cases on his docket to conduct a bellwether trial—involving the claims of one or at most a few of the plaintiffs—and then seek resolution of the other cases based on the results of that trial. Corber indicated that such seriatim consideration of similar claims satisfies CAFA’s “tried jointly” requirement. CAFA excepts from the definition of “mass action” claims that have been consolidated or coordinated “solely for pretrial purposes,” but Section 404 does not authorize a coordinating judge to return a case to the originating judge following completion of pre-trial procedures. Rather, once cases are coordinated in California state court, they remain together through trial.

There is no suggestion that the Kreis plaintiffs in the Briggs case, when they petitioned to have their claims coordinated with numerous similar claims, had any trial procedure in mind other than the bellwether-trial plan described above. Yet the Ninth Circuit panel held that CAFA mass-action removal is unwarranted so long as counsel remembers to include a disclaimer stating that he does not intend for the claims of all his clients to be tried in a single proceeding. The panel left unexplained what, if anything, remains of Corber mass-action removal rights following this pro-plaintiff decision. The answer: nothing will remain of Corber unless Briggs is reversed. If the Ninth Circuit does not agree to convene an en banc court to review this issue a second time, U.S. Supreme Court review is a distinct possibility in light of the conflict between Briggs and decisions from both the Seventh (In re Abbott Labs) and Eighth (Atwell v. Boston Scientific) Circuits.

Plaintiffs’ lawyers perceive a strong advantage in preventing removal of their tort suits to federal court. They generally prefer to keep their suits in state court, where they hope to steer the cases to favored judges known for their bias toward the plaintiffs’ bar. Congress enacted CAFA’s expanded removal rights for the very purpose of ensuring that large class actions and mass actions could not be steered to friendly state-court judges. Decisions such as Briggs thwart that purpose by providing plaintiffs’ lawyers with a roadmap for bypassing mass-action removals.

Also published by Forbes.com on WLF’s contributor page

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