Today’s case, Adams v. 3M Company, 2023 WL 2997420 (6th Cir. April 19, 2023), is not, strictly speaking, a drug or device case, but it is about constraining plaintiff lawyer attempts to aggregate litigation. That issue is near and dear to our flinty, defense-hack hearts. We never forego a chance to quote our old buddy Hegel, so here we go again: “Quantitative differences after a point become qualitative differences.” Mass litigations, whether in the form of class actions, multidistrict litigations, consolidations, or whatever, are designed to achieve economies of scale without altering substantive rights. Except that they almost always do alter substantive rights, and almost always to the detriment of defendants. Once litigations become massive enough, defendants face exposures massive enough to alter settlement calculations. Size overwhelms merit. Just like the complexity of the tax code is itself a tax on citizens, aggregating plaintiffs becomes a tax on defendants.
Congress passed the Class Action Fairness Act (CAFA) (28 U.S.C. section 1332(d)(11)(B)(i)) to prevent plaintiff lawyers from cobbling together mass actions and running them through certain state courts that have earned a rather, er, inflammatory nickname. We usually refrain from using that nickname because we do not want to irritate the fine judges in such lovely places as Southern Illinois, or the City Hall that is only a stone’s throw from where we sit, or coal country.
That last location is where the Adams case was filed. Initially, two complaints were filed in state court, with each listing over 100 coal miners, bringing product liability actions against respirator manufacturers, distributors, and retailers. The defendants removed the cases to federal court based on CAFA, which extends federal jurisdiction to certain “mass actions” involving “100 or more persons.” The district judge granted the plaintiffs’ motion to remand, the defendant obtained leave to file an interlocutory appeal, and the issue ended up in the hands of the Sixth Circuit. The Sixth Circuit is a good court with many good judges, and it issued a good decision in Adams. That is to say (and to avoid burying the lead any further), the Sixth Circuit reversed the district court’s remand, and held that CAFA applied and the litigation belonged in federal court.
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. section 1332(d)(11)(B)(i). The parties agreed that the lawsuits qualified as “civil action[s]” seeking “monetary relief.” The issue in dispute was whether the plaintiffs “proposed” to “tr[y]” “claims of 100 or more persons … jointly on the ground that” the claims “involve common questions of law or fact.”
Did the plaintiffs “propose” a joint trial? The Sixth Circuit held that when the plaintiffs “filed complaints with more than 100 co-plaintiffs, they offered to try their co-plaintiffs’ claims jointly.” To confirm that point, the complaints sought a “trial by jury” and a singular “judgment,” not multiple jury trials and multiple judgments.
Did the plaintiffs propose a joint trial “on the ground[s] … [of] common questions or law or fact”? Yes, indeedy. Kentucky’s permissive joinder rules provide that a complaint may join multiple plaintiffs in a single action when there is “[a] common question of law or fact” that is “common to all” the plaintiffs’ cases. By filing complaints predicated on a “common” “question of law or fact,” the plaintiffs offered the presence of common questions as a ground for pursuing a joint trial.
According to the Sixth Circuit, “[l]awsuits like the miners’ complaints fits the bill” for CAFA. The two complaints asserted “parallel claims on behalf of more than 100 plaintiffs, all proceeding on the theory that the claims are similar enough to merit adjudication in tandem. It should not come as surprise that CAFA covers them.”
The Sixth Circuit’s reasoning was animated by the notion that CAFA establishes simple “bright-line” rules. The plaintiffs’ efforts to escape the consequences of their own pleadings were unavailing. Each complaint on its face proposed a joint trial of more than 100 separate plaintiffs. The miners tried to walk that back by suggesting that their claims might ultimately not involve common questions of fact or law. But removability is judged at the moment of removal, not on future maybes. In any event, not only is the denial of common questions at odds with plaintiffs’ intentional joinder, it is irrelevant because the plaintiffs’ complaints did, in fact, propose joint trials. Maybe the defendant could succeed on a motion to sever the plaintiffs. But that would not alter the fact that plaintiffs proposed a joint trial.
Even if the plaintiffs now promised to seek only individual trials (a promise that the Sixth Circuit observed was “easy to make but harder to keep”), such promise would “not defeat federal jurisdiction.” Jurisdictional rules should be simple. “Requiring district courts to divine counsels’ unexpressed intentions and compare different cases’ trial-management plans would be anything but.”
The plaintiffs invoked federalism and concern for “the independence of state governments.” Huh? The Sixth Circuit brushed off that incoherent, rather desperate objection. Congress set forth clear jurisdictional rules, and “no antiremoval presumption attends cases invoking CAFA.”
Finally, the plaintiffs argued for affirmance of the remand order based on the “local controversy” exception. But the “core” of the miners’ complaints alleged that the defendant and other out-of-state defendants “designed, manufactured, and sold defective respirators, then lied about their faults.” It is true that the miners also named local Kentucky merchants as defendants, but their liability would be wholly derivative of the manufacturer’s liability. The manufacturer was the true target in this case. The court had no basis to “conclude that this controversy is local.”
The Adams decision means that CAFA means what it says. If you count to 100, you can count on CAFA to get you to federal court.