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

Plaintiff lawyers must be mighty allergic to federal court.  They perform all sorts of maneuvers to avoid CAFA removal of mass actions.  For example, they will artificially subdivide their cases into groups of under 100.  And/or they will disclaim any intent to try the cases together.  Do these circumventions work?  Perhaps most important, since so

It is has been a rough few weeks for forum-shopping litigation tourists. We wrote the other day on the Missouri Supreme Court’s landmark opinion in State ex rel. Norfolk Southern Railway Co. v. Dolan, which held that Missouri’s courts do not have jurisdiction over out-of-state controversies involving out-of-state defendants.  It has long been the practice of many plaintiffs’ lawyers to group hundreds of claims together in Missouri state court because they prefer that venue and for the sake of their own convenience.  The Norfolk Southern Railway case should put an end to that.

Another bulwark against litigation tourism is the Class Action Fairness Act, which Congress enacted in 2005 to address abuses in aggregated litigation. Among other provisions, CAFA makes actions combining 100 or more plaintiffs removable to federal court as “mass actions.”  We have written a lot on mass actions, including multiple posts on removing mass actions to federal court even when plaintiffs’ counsel try to break their claims into multiple actions of less than 100 plaintiffs.  A not-too-old post on the topic is here, and you can link from there to numerous others.  The gist is that transparent gamesmanship should not prevent federal courts from retaining jurisdiction over hundreds of plaintiffs bringing coordinated claims, even when plaintiffs’ lawyers go through their usual machinations to avoid it.

That is what happened in Portnoff v. Janssen Pharmaceuticals, No. 16-5955, 2017 WL 708745 (E.D. Pa. Feb. 22, 2017), and the district court’s order denying the plaintiff’s motion to remand is really interesting.  First some background:  Six plaintiffs’ law firms filed a “Petition to Consolidate and for Mass Tort Designation” in the Philadelphia Court of Common Pleas requesting consolidation of 87 pending pharmaceutical cases.  They withdrew the petition about two weeks later and filed a second petition in its place. Id. at **2-3.


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Permitted gamesmanship versus prohibited conduct.  That is the dichotomy that one district judge adopted to describe the transparent forum manipulation that some plaintiffs undertake under CAFA.  To be honest, neither characterization is terribly flattering:  Either plaintiffs are openly gaming the system to avoid federal jurisdiction under CAFA, or they are engaging in conduct that a federal statute downright prohibits.  Either way, the result should be an order for the defense.

Well, neither the world nor the law is perfect, as the Ninth Circuit reminded us last week in an opinion remanding hundreds of claims relating to the same prescription drug.  Briggs v. Merck Sharp & Dohme, No. 15-55873, 2015 WL 4645605 (9th Cir. Aug. 6, 2015).  To back up a little, the issue is “mass action” jurisdiction under CAFA, a topic that we have been tracking for some time (including here, here, and here).  As our readers know, 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. § 1332(d)(11)(B)(i).  This has led to the widespread practice of plaintiffs’ attorneys gathering up hundreds of unrelated plaintiffs claiming injuries related to the same product or related products.  But rather than file one complaint for each plaintiff or file one consolidated complaint (either of which would almost always result in undisputable removal jurisdiction), the plaintiffs’ attorneys divide their clients into multiple mass complaints, with each complaint including at least one non-diverse plaintiff to defeat complete diversity and each numbering fewer than 100 plaintiffs.  This is their extraordinarily transparent attempt to avoid removal under CAFA “mass action” jurisdiction.

It should not work, and it did not work last year in Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014).  In Corber, the Ninth Circuit held that several mass complaints, taken together, constituted a CAFA mass action.  The Court of Appeals’ reasoning was solid:  The plaintiffs collectively numbered more than 100, and the plaintiffs had proposed that their cases be tried jointly within the meaning of CAFA when they petitioned to coordinate their complaints before one California state judge “for all purposes.”  As we pointed out when we first wrote on Corber, coordination “for all purposes” is the only kind of coordination that California’s rules permit.


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We love our home state of California, but we have long bemoaned the widespread practice of what we call litigation tourism. That is where unrelated plaintiffs, sometimes thousands of them, from all corners of the U.S. join together in mass complaints filed in California state court. For whatever reason, California courts have seemed open to

This morning the United States Supreme Court decided Dart Cherokee Basin Operating Co. v. Owens, No. 13-719, slip op. (U.S. Dec. 15, 2014), holding that removal under the Class Action Fairness Act (“CAFA”) requires no evidentiary submission regarding the amount in controversy beyond that alleged in the notice of removal.  The statute “tracks” Fed.

We read with great interest the Ninth Circuit’s recent opinion on CAFA “mass action” jurisdiction, Corber v. Xanodyne Pharmaceuticals, Inc., No. 13-56306, 2014 WL 6436154 (9th Cir. Nov. 18, 2014).  If you have not read it yet, you should.  We hesitate to call it a blockbuster, since we think the opinion’s reasoning is more narrow that it needed to be (more on that later).  But the result (holding that CAFA removal was proper) is clearly correct, and the opinion hopefully will become a stalwart against one of the more brazen abuses that we see in pharmaceutical litigation – the disingenuous joining of hundreds of unrelated plaintiffs in multiple complaints in a single jurisdiction, but with each complaint numbering fewer than 100 plaintiffs in order to avoid CAFA removal.

It is a form of “litigation tourism”—the mass importation of plaintiffs into jurisdictions that have no interest whatsoever in adjudicating their claims—and we have always wondered why courts tolerate it.  It has become a particular problem in California, whose underfunded courts are clogged as it is and whose taxpayers should not have to subsidize transient plaintiffs and the attorneys who represent them.

You won’t find this context in Corber, but trust us, it’s simmering there just beneath the surface.  Corber was one of multiple complaints filed in California state court alleging injuries in connection with the prescription drug propoxyphene.  The complaints together asserted the claims of hundreds of unrelated plaintiffs from all parts.  But rather than file one complaint for each plaintiff (which would have subjected the vast majority to removal under standard diversity jurisdiction) or file one consolidated complaint (which clearly would have been removable as a mass action under CAFA), the plaintiffs’ attorneys divided their clients into multiple mass complaints, with each complaint including at least one non-diverse plaintiff to defeat complete diversity and each numbering fewer than 100 plaintiffs.  To review, 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. § 1332(d)(11)(B)(i).  So 100 is the somewhat-magic number that plaintiffs are careful to stay beneath, which these plaintiffs’ lawyers scrupulously did.


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This post is from the non-Reed Smith side of the blog only.

We often struggle for a clever title or catchy phrase on which to hang our posts.  Hence, the frequent sidebars into pop culture, sports, history, and music.  But today, the court handed us our opening on a silver platter – permitted gamesmanship v.

This just in. The Supreme Court decided two important cases today. In Mississippi v. Hood, No. 12-1036, the Court held that state attorney general actions do not qualify under CAFA for removal to federal court under that statute’s minimal diversity standards for “mass actions.”   The decision was unanimous, and it primarily turned on