Back in December, we blogged about two cases in the Ninth Circuit that were the latest skirmishes in the fight over whether plaintiffs can evade removal under the Class Action Fairness Act of 2005 ("CAFA") by artificially subdividing their mass actions. Plaintiffs have sought to make an end-run around CAFA's provision permitting removal of mass actions raising "claims of 100 or more persons that are proposed to be tried jointly" (28 U.S.C. § 1332(d)(11)(B)(i)), by bringing parallel mass-action cases of fewer than 100 persons each, and asking that the cases be treated together for as many purposes as possible without crossing the line into a joint trial.

Some courts, such as the Eighth Circuit in Atwell v. Boston Scientific, have resisted those efforts.  But a divided panel of the Ninth Circuit had issued two decisions—Romo v. Teva Pharmaceuticals USA, Inc., and its companion case, Corber v. Xanodyne Pharmaceuticals—affirming orders remanding cases in which the plaintiffs had sought joint treatment of two just-under-100-plaintiff mass actions under a California state-law procedure that allows coordination of certain civil actions "for all purposes."

On Monday, the Ninth Circuit granted rehearing en banc (pdf) in both Romo and Corber. Although it's perilous to predict how an en banc panel will rule in those cases, it isn't hard to deduce why a majority of the court's active judges might have thought the cases warranted rehearing. As we previously explained, the panel's approach in Romo seems excessively formalistic; the panel focused on whether the plaintiffs had used the magic words of asking for a "joint trial," while failing to consider the reality of how the mass actions were likely to be litigated.  And the panel had, of course, created a circuit split with the Eighth Circuit in Atwell.

We'll continue watching these cases, which are of tremendous importance to defendants' right under CAFA to remove mass actions to federal court.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2014. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.