Search cafa

The Eight Circuit issued an opinion last week that highlighted again how product liability complaints with multiple plaintiffs can be susceptible to removal to federal court under CAFA (the Class Action Fairness Act of 2005), particularly if the total number of plaintiffs across the grouped complaints is at least 100.  See Atwell v. Boston Scientific Corp., Slip Op. (8th Cir. Nov. 18,2013).

As a reminder, CAFA permits removal to federal court of “mass actions,” which include “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. §1332(d)(11)(B)(i).  In other words, there needs to be more than 100 plaintiffs and a proposal to jointly try their claims because they share fact or legal issues.  On the other hand, joint pretrial proceeding don’t trigger removal under CAFA.  28 U.S.C. §1332(d)(11)(B)(ii)(IV).  As a result, we more and more see plaintiffs’ lawyers at case management conferences renouncing that they are seeking joint trials or consolidation of cases for trial.  They know that, if they do, they’ll receive a notice of removal the very next day.

The Atwell case is part of the transvaginal mesh litigation, and there were three separate groups of plaintiffs – the Atwell group, the Evans group and the Taylor group.  Atwell, slip op. at 2-3.  Each set of plaintiffs did their best to avoid removal, but couldn’t.Continue Reading Eighth Circuit Upholds Removal under CAFA of Several Multiple-Plaintiff Product-Liability Complaints

A few months ago, we told you that the Supreme Court granted certiorari in a case to decide whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act (“CAFA”) when the state is the sole plaintiff and the claims arise under state law.  The decision on appeal is the Fifth Circuit’s Mississippi v. AU Optronics Corp., 701 F.3d 796, 800 (5th Cir. 2012).   The Fifth Circuit answered the question in the affirmative and as that remains the controlling law for the circuit, the Northern District of Mississippi recently followed suit in Hood v. Bristol-Myers Squibb Co., 2013 U.S. Dist. LEXIS 90540 (N.D. Miss. Jun. 27, 2013).  Since  Hood is a pharmaceutical case, we thought we’d use it as an opportunity to explore the issue a little more, and there is a also a good diversity ruling.

This AG action was brought in state court solely under the Mississippi Consumer Protection Act (“MCPA”) seeking civil penalties, disgorgement and injunctive relief.  Id. at *3.  Defendants removed the case to federal court.  In opposing plaintiff’s motion to remand, defendants asserted diversity jurisdiction, federal question jurisdiction and jurisdiction under CAFA.  The court agreed with defendants on both diversity and CAFA.

As a quick but important side note, plaintiffs filed an amended complaint on the same day they filed their motion to remand – presumably attempting to address the jurisdictional issues.  The court, however, found that the question of removal should be determined based on the original complaint that was in effect at the time of the removal.  Id. at *6-7.  Good practical reminder if you are faced with amended pleadings in the midst of a motion to remand.

On to diversity.  Here the question is who are the real parties in interest?  If the State of Mississippi is the sole party in interest, there cannot be complete diversity because a State is not considered a “citizen” for purposes of diversity.  Id. at *9-10.  That is precisely what the Mississippi AG argued – that he was bringing a ”parens patriae suit on behalf of the State of Mississippi under the MCPA, not a suit on behalf of the individual users of [defendant’s product].”  Id. at *9.  In opposition, defendants argued that the real parties in interest were the citizens of Mississippi who are completely diverse from the defendants.  Id.Continue Reading Diversity and CAFA Jurisdiction in Mississippi AG Action

We like CAFA – that is the Class Action Fairness Act – because a federal forum is generally much preferred (and becoming moreso after Dukes and Comcast) for class actions involving prescription medical products, not to mention just about anything else.  Thus we cautioned some time ago that the industry could “lose by winning”…

One of the many methods of aggregating litigation is an action filed by a governmental unit acting as “parens patriae.”  See Principles of the Law of Aggregate Litigation §1.02 & Reporters notes to comment b(1)(B) (ALI 2010).  Such actions, in which a “[g]overnmental actor” has “authority to speak for citizens on matters of…

Back when Bexis was still at Dechert, we put up a cautionary post called “CAFA Not With Standing.”  In that post we cautioned against using constitutional standing as a defense to class actions with questionable and attenuated damages claims.  Remember CAFA, we pointed out.  The damages sought in state-court class actions need to support federal Article III standing, or else defendants won’t be able to keep the actions in federal court.
Well, yesterday the court in Bouldry v. C.R. Bard, Inc., No. 12-80951-CIV, slip op. (S.D. Fla. Dec. 18, 2012), addressed precisely the situation discussed in that post.  Fortunately, our side won, and the class action stayed in federal court, where there are plenty of other arguments against its validity.
First, we have to point out that Reed Smith was involved in the Bouldry case, so we can’t say as much as we’d like.  We’ll have to stick to the legal propositions.  As for the facts, all we can say is that the Bouldry opinion should be applicable to other attenuated injury class actions, regardless of the product or conduct involved.
Bouldry involved a state class action in Florida alleging that a medical device had a higher risk of failure than it should.  The class consisted of people who had not suffered any failure.  There are good arguments that this sort of at-risk damages are not recoverable under most states’ laws − see our no injury scorecard, and in particular the Shiley heart valve cases from the late 1980s and early 1990s, which addressed similar allegations.  Hint:  the defendant won almost all of them.Continue Reading At Risk Claims Sufficient To Support Federal CAFA Jurisdiction

We were just reading an interesting, relatively new, decision from our home Circuit, Reilly v. Ceridian Corp., 664 F.3d 38 (3d Cir. 2011), and our reaction to it wasn’t quite what most readers would expect.  The defendant won, but we were still troubled.
Sometimes defendants can lose by winning – as we discussed that…

This post will completely miss the point.
(Yeah, yeah: So how does that distinguish this post from all the rest of ’em?)
In Pew v. Cardarelli, No. 06-5703-mv, slip op. (2d Cir. May 13, 2008), plaintiffs alleged that officers of an issuer failed to disclose, while marketing debt securities, that the issuer was insolvent.…

This guest post was written by Sean Costello. Mr. Costello is an associate resident in the Atlanta office of Jones Day. This post is entirely his work. It, of course, represents only his views, and not the views of his clients or firm:
The Class Action Fairness Act has succeeded in shifting more…

This guest post was written by Sean P. Costello. Mr. Costello is an associate resident in the Atlanta office of Jones Day. This post is entirely his work. It, of course, represents only his views, and not the views of his clients or firm:
Last September, the Federal Judicial Center issued its “Second…

Drug & Device Resources

Bexis’ Book

FDA-regulated products now account for an estimated one-fifth of overall economic activity in the U.S. They have also been the focus of a litigation explosion. This timely guide covers all aspects of litigation involving drugs, medical devices, vaccines and other FDA-regulated prescription products.
Learn More About This Book