Two recent decisions from the U.S. Court of Appeals for the Ninth Circuit have shed light on mass actions under the Class Action Fairness Act (CAFA) and what plaintiffs can do to avoid removal to federal court. The first case, Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014), involved several complaints alleging injuries resulting from the ingestion of propoxyphene, an ingredient found in the Darvocet and Darvon pain relief drugs, as well as in generic pain relievers. There, the total number of plaintiffs in all the complaints exceeded 100, and they had proposed to the state court that the cases be tried jointly because they petitioned for coordination of their complaints before a California state judge “for all purposes.” Id. at 1220.CAFA permits removal of “any civil action  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).
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