We have written a number of times on CAFA, the Class Action Fairness Act.  The decisions and subjects we have covered can be pretty technical and even numerical. After all, one of the central provisions of CAFA has a number in it: a “mass action” is one “in which monetary relied claims of 100 or more persons are proposed to be tried jointly,” allowing removal in some situations. The Act was intended to address abuses seen in certain state courts through a particular brand of litigation tourism. In particular, in passing CAFA, the state courts of certain counties in southern Illinois were called out for allowing lots of claims from residents of many states to be pursued in places the plaintiffs’ lawyers preferred, either in purported class action or in actions that smelled a lot like class actions but were not labeled as such. (We can set aside personal jurisdiction and a bunch of other procedural considerations relevant to litigation tourism for now to focus on the CAFA part of this.) Because the enactment of CAFA did not end the plaintiffs’ lawyers desire to keep their money train rolling in their favorite places, we see two other recurring numbers in our posts on CAFA. There have been a bunch of cases from the Seventh Circuit, which includes Illinois, and from the Ninth Circuit, which includes what is now probably the plaintiffs’ lawyers’ favorite spot for mass litigation tourism, California. Thus, it is not surprising that these are the two circuit courts with “bad” decisions on what could be a critical issue in CAFA jurisprudence. Because there are two circuit courts with “good decisions,” the Tenth and Eleventh, there is a split that provides good grounds for the United States Supreme Court to take up the issue.

We have read the cert petition in Pfizer, Inc. v. Adamyan and wanted to highlight it for our readers. This case relates to more than 4200 Lipitor plaintiffs who were not swept up in the mass summary judgment rulings from the MDL that were affirmed by the Fourth Circuit. (We wrote about those decisions a bunch, including awarding top ten honors twice. See here, here, here, and here.)  The procedural history of cases at issue in Adamyan is complicated and we would refer readers to the discussion in the petition. The CAFA issue, however, is fairly straightforward and comes up in state court mass torts (or “mass actions”) fairly often. To begin to be eligible for removal as a “mass action” those 100 or more claims must be “proposed to be tried jointly.” Well, proposed by whom? If the defendant(s) propose it, then it does not count because the statute says that explicitly. If the plaintiffs propose it, then it does count. Lots of judicial ink has spilled on that, mostly on the issue of how direct the proposal has to be and what counts as being tried jointly, but there is agreement. In some instances, however, the court might make a proposal on its own to try a triple- or quadruple-digit number of claims together. Courts in places where such mass torts tend to be brought do make those proposals. They may even, like California, have procedures in place for coordinated proceedings that sound a lot like automatic “mass actions” under CAFA.

That is the issue as to which the circuits are split: what if the proposal that would otherwise trigger removal under CAFA’s mass action comes from the court sua sponte? We previously decried a decision from the Ninth Circuit that said that the removal of an action with hundreds of prescription drug claims was not removable, in part because the plaintiffs did not make a “proposal.” That case was not amenable to cert, but Adamyan is. Were we to say cert should be granted and the manufacturer should win before the Supreme Court, then our critics may have more ammunition to support what they say anyway—that we are defense hacks. Were we to say “everything the petitioner in Adamyan argues is right and persuasive,” then we might be defense hacks. Instead, we suggest that our readers read the petition with the additional question in mind of whether it makes sense that sua sponte court proposals or decisions on joint trials should count under CAFA. After all, CAFA was intended to put more cases in federal court as a way to avoid unfairness to out-of-state defendants. That is what the legislative history of CAFA made clear and the Supreme Court has recognized in prior decisions. CAFA also could have said a proposal by plaintiffs was required to trigger removal. Instead, it said that a “mass action” is one “in which monetary relied claims of 100 or more persons are proposed to be tried jointly,” and expressly excluded cases where the defendant(s) make the proposal. So, we will not argue the position that the petitioner argues well without us.

We would add a practical note, informed by experience in some of the courts that keep giving rise to decisions on CAFA removal. Plaintiff lawyers like certain courts. They may be really comfortable there for various reasons. The judges may get elected. They may know the judges. They may know the coordination or mass tort procedures well. There could be many reasons why the plaintiff lawyers like being in a certain court against a defendant from somewhere else, even with a bunch of plaintiffs from somewhere else. (A defense lawyer might have similar preferences about a court in her backyard, but defendants do not really pick where they get sued.) Knowing that an on-the-record proposal by plaintiffs’ counsel for 100 or more plaintiffs for a joint trial, even a proposal that is more implicit than explicit, might lead to removal, is it at all possible that a judge in a jurisdiction that the plaintiff lawyers favored might frame the proposal for the joint trial as sua sponte?  Sua sponte is Latin for “on his/her/its own will,” but it also can suggest suddenness.  If there is ever going to be a question about whether a judge’s order that a joint trial be held is anything other than a sudden and independent decision of the best way to handle the court’s docket in a way that is fair to all parties, then surely it makes sense that such an order can trigger removal, if the criteria are otherwise met, as long as a defendant did not push for it simply as a tool for removal. The suspicion that there was an off-the-record request from the plaintiffs, that joint trials are always ordered because they favor the plaintiffs, or some other version of a nod and wink to help one side should be reason enough to get the case out of that state court. When a single case can have 4287 plaintiffs, like Adamyan did when the defendant removed, there are plenty of reasons to view the decision on state or federal court as implicating fundamental notions of fairness. Of course, where federal courts rule as they did in the Lipitor MDL and get rid of cases en masse for lacking competent proof of causation, you can see that the ultimate choice of state or federal court can really matter.