November 10, 2015 Articles

Forum Shopping with CAFA—Ninth Circuit Reopens the Starbucks

By Kristin L. Beckman

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).

In Corber, the claims originally were filed as several separate complaints, each including one non-diverse plaintiff so as to defeat federal diversity jurisdiction. Nevertheless, the defendants removed the cases to federal court, claiming that all the complaints considered together were a CAFA “mass action.” In doing so, the defendants relied on the fact that the plaintiffs’ attorneys had also filed a petition with the California Judicial Council asking for consolidation of the state court cases before a single judge for all purposes. After an initial remand order was affirmed by a three-judge panel of the Ninth Circuit, the court subsequently reheard the issue en banc, holding that “all of the CAFA requirements for a removable mass action are met under the totality of the circumstances in these cases.” Corber, 771 F.3d at 1220. In so holding, the en banc court focused on the plaintiffs’ own efforts in the petition for coordination, which asked for coordination for all purposes, including trial. Moreover, the panel noted that the plaintiffs had requested coordination for several reasons, “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.’” Id. at 1221–22. The Ninth Circuit also rejected the plaintiffs’ argument that the request for a joint trial should be express because such a rule under CAFA would ignore the actual substance of the plaintiffs’ complaint. Accordingly, the en banc court found that the cases constituted a mass action that had been properly removed under CAFA. While the court stopped short of establishing a bright-line rule characterizing any coordination request under California law as one that meets the CAFA joint trial requirement, the decision and reasoning strongly suggest that result.

Less than a year later, the Ninth Circuit remanded hundreds of claims in Briggs v. Merck Sharp & Dohme, 2015 WL 4645605 (9th Cir. Aug. 6, 2015), after plaintiffs’ counsel revised their tactics and affirmatively stated in their complaints that the cases should be tried individually. Briggs involved hundreds of claims regarding the same prescription drug. There, the plaintiffs filed five separate cases, each including fewer than 100 plaintiffs with at least one non-diverse plaintiff, all involving the same drug manufacturer and complaints. At one point in the proceedings, plaintiffs’ counsel represented to the district court that remand would “result in these cases joining the Judicial Council Coordinated Proceeding” (JCCP), already under way in Los Angeles. Nevertheless, the district court remanded the cases, and the manufacturer removed them again, this time asserting mass action jurisdiction under CAFA. Even though the plaintiffs expressly affirmed their intention to coordinate cases with the ongoing JCCP (arguably implicating federal jurisdiction, as there were 100 or more plaintiffs proposed in other cases be tried jointly within the meaning of CAFA), the district court denied remand.

In doing so, the lower court opined that the plaintiffs’ representations made during hearings, implicitly proposing that the claims be joined with the claims of other plaintiffs and four other cases, were sufficient to implicate a proposal for a joint trial within the meaning of CAFA.

On appeal, the appellate court found that the district court had no “mass action” jurisdiction under CAFA—primarily based on both the language of the statute, 28 U.S.C. § 1332(d), and the language in the individual petitions, which did not “propose” any joint trial of the claims—and therefore ordered that the cases be remanded. In so doing, the Ninth Circuit considered in Briggs whether the plaintiffs made a “proposal” for joint trial of claims of 100 or more persons sufficient to trigger CAFA’s removal jurisdiction. Specifically, the panel evaluated whether the plaintiffs had (1) made any “voluntary or affirmative acts”—and an “intentional act”—that would constitute such a proposal (and not a mere suggestion or prediction) and also (2) requested any joint trial “made to a court that can effect the proposed relief.” The court concluded they had not. The Briggs panel reasoned that the plaintiffs’ representations regarding the ongoing JCCP were “predictions” of what would happen if the cases were remanded. Moreover, the statements regarding the JCCP were made to a court (the district court) that lacked any authority to actually join the plaintiffs’ cases with the JCCP. Accordingly, the statements were not “made to [any] court that [could] effect the proposed relief”; therefore, the plaintiffs’ claims were insufficient to serve as a proposal for joint trials.

Finally, Briggs indicated that the plaintiffs had not requested a joint trial because they had filed a declaration stating that they “do not seek joint trials of any cases or plaintiffs, but rather, all claims shall be tried individually.” Furthermore, the JCCP’s case management order stated that it did “not constitute a determination that these actions should be consolidated for trial.” Accordingly, because there was no “proposal” for a “joint trial,” the Ninth Circuit concluded that the district court did not have jurisdiction and remanded the cases with directions to the district court to remand the five cases to state court.

This issue does not appear to have been resolved, however, and may eventually result in a circuit split. For example, in 2012, the U.S. Court of Appeals for the Seventh Circuit refused to remand similar cases filed in multiple Illinois counties. See In re Abbott Labs., Inc.,698 F.3d 568 (7th Cir. 2012). In doing so, the court focused on a request for consolidation of the lawsuits in St. Clair County, as the cases “present common issues of fact . . . as well as common questions of law. . . .” The plaintiffs represented that the requested consolidation of the cases was through trial and not solely for pretrial proceedings. Finding that a proposal for a joint trial can be implicit, the Seventh Circuit held that federal jurisdiction under CAFA was appropriate. Accordingly, it remains to be seen how far requests for consolidation can and should go in state courts and to what extent federal courts will focus on those requests.

Ninth Circuit practitioners should review these cases carefully, especially Briggs, as the court there stopped short of providing—although it suggested—wording in complaints that plaintiffs’ counsel could use to defeat CAFA jurisdiction in the form of a declaration. Moreover, Briggs reconfirms the well-established principle that defendants cannot “propose” a joint trial for removal purposes.

Keywords: mass torts litigation, Class Action Fairness Act, CAFA, removal, Ninth Circuit

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