Will The En Banc Ninth Circuit Clarify When A Subdivided Mass Action Can Be Removed Under CAFA?

We've blogged before about plaintiffs' attempts to circumvent the "mass action" provisions in the Class Action Fairness Act of 2005 ("CAFA"), which allow defendants to remove to federal court certain cases raising "claims of 100 or more persons that are proposed to be tried jointly." 28 U.S.C. § 1332(d)(11)(B)(i). To evade removal, creative plaintiffs' lawyers have subdivided their mass actions into parallel cases of fewer than 100 persons each. Some courts have gone along with the charade. See, e.g., Scimone v. Carnival Corp., No. 13-12291 (11th Cir. July 1, 2013); Abrahamsen v. ConocoPhillips, Co., 503 F. App'x 157, 160 (3d Cir. 2012); Anderson v. Bayer Corp., 610 F.3d 390, 392 (7th Cir. 2010); Tanoh v. Dow Chem. Co., 561 F.3d 945, 950-51 (9th Cir. 2009).

The fight over removal in these gerrymandered mass actions often boils down to one key question: whether the parallel cases are "proposed to be tried jointly." If so, CAFA permits removal.

Recognizing this point, the plaintiffs in these cases frequently remain coy about—or outright deny—an intent to try the parallel mass actions jointly. But they often go right up to the edge, urging the same state trial court to resolve threshold issues in the cases together—or even simply to consolidate the state-court actions outright. Then, these plaintiffs say, CAFA's mass-action removal provision doesn't apply because they say that they have had the claims "consolidated or coordinated solely for pretrial proceedings." 28 U.S.C. § 1332(d)(11)(B)(ii)(IV) (emphasis added).

But not all courts are falling for this effort to elevate form over substance.

An important example is the Eighth Circuit's recent decision in Atwell v. Boston Scientific, 2013 WL 6056782 (8th Cir. Nov. 18, 2013), in which the plaintiffs had subdivided their state-court mass action into three cases with fewer than 100 plaintiffs each. The defendants removed the cases under CAFA, explaining that the plaintiffs' arguments in seeking to have the cases all assigned to a single judge demonstrated that the plaintiffs in fact proposed to try the three cases jointly. Specifically, the plaintiffs had disclosed that they intended to "select [a] bellwether case to try," and mentioned that assigning the cases to a single judge was needed to "'avoid conflicting pretrial rulings,' 'provid[e] consistency in the supervision of pretrial matters,' and [achieve] 'judicial economy.'"

The district court remanded the cases back to state court, but the...