Removal under the "mass action" provision of the Class Action Fairness Act (CAFA) is appropriate when 100 or more plaintiffs take the affirmative step of proposing to try their claims jointly and the claims involve common issues of law or fact. The Ninth Circuit recently examined whether plaintiffs' request for a bellwether trial in eight separate cases involving the same allegedly defective medical devices amounted to a proposal to have claims tried jointly thereby converting the lawsuit into a removable "mass action." Under the specific facts of plaintiffs' request, the Ninth Circuit held that CAFA removal jurisdiction did not exist.

Plaintiffs sought consolidation of the eight cases "for all pretrial purposes, including discovery and other proceedings, and the institution of a bellwether-trial process." Defendant Cordis Corporation interpreted plaintiffs' request as a proposal to try their claims jointly and removed the cases by invoking the CAFA mass action provision. The district court granted plaintiffs' motion for remand, and the Ninth Circuit granted Cordis' petition to appeal.

The Ninth Circuit began its analysis by explaining that two kinds of "bellwether-trial process" exist, only one of which constitutes a proposal to try the claims jointly. In the first, "the claims of a representative plaintiff (or small group of plaintiffs) are tried, and the parties in the other cases agree that they will be bound by the outcome of that trial, at least as to common issues." In the second and more common type, "claims of a representative plaintiff or plaintiffs are tried, but the outcome of the trial is binding only as to the parties involved in the trial itself. The results of the trial are used in the other cases purely for informational purposes as an aid to settlement." The court stated a proposal to have a bellwether trial of the first kind is in effect a proposal for a joint trial under CAFA while a bellwether trial of the second type with no binding effect on the other plaintiffs is not.

The Ninth Circuit looked to the specific language in plaintiffs' consolidation motion to determine if the request for a bellwether trial represented a proposal for a joint trial. The court stated that when plaintiffs are silent as to what type of bellwether process is being sought, the more common bellwether trial for informational purposes and without binding effect on other plaintiffs will be presumed. Additionally, in this case, plaintiffs in their motion for consolidation stated "to be clear, Moving Plaintiffs are not requesting a consolidation of Related Actions for purposes of a single trial to determine the outcome for all plaintiffs, but rather a single judge to oversee and coordinate common discovery and pretrial proceedings." The Ninth Circuit reasoned that plaintiffs statement "negates any notion that the plaintiffs were speaking of a bellwether trial whose results would have a preclusive effect in the other cases." In reaching its decision, the court compared this language to the language used in the Corber case where the Ninth Circuit sitting en banc decided removal was proper when plaintiffs requested consolidation for "all purposes."

Accordingly, the Ninth Circuit affirmed  the district court's denial of removal jurisdiction under CAFA's mass action provision.

Dunson et al. v. Cordis Corporation, No. 17-15257 (9th Cir. Apr. 14, 2017).

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