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.


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You’re all familiar with the adage, close only counts in horseshoes and hand grenades.  Maybe in darts too, but you get the point. More often than not when talking about the law – close doesn’t count.  Either a statute applies or it doesn’t.  Either you are liable or you’re not.  Either there’s federal jurisdiction or there’s not.  And, in today’s case, the answer was – there’s not.

The decision comes from the In re Darvocet, Darvon and Propoxyphene Products Liability Litigation, MDL 2226, 2013 U.S. Dist. LEXIS 105208 (E.D. Ken. Jul. 25, 2013) and addresses the definition of a mass action under CAFA.  If the litigation did in fact qualify as a mass action, it would be removal to federal court (assuming it also involved at least one diverse plaintiff and defendant and an amount in controversy greater than $5 million).  So, first a quick reminder of what a mass action is under CAFA:    “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).  Any kindergartner should be able to tell us whether the litigation involves at least 100 people.  The trickier part is whether the claims are “proposed to be tried jointly.”

Before we delve into the facts of the Darvocet decision, we want to remind you of a decision relied on heavily by the Darvocet defendants – In re Abbott Laboratories Inc., 698 F.3d 568 (7th Cir. 2012).  We posted on it here, but in summary, the plaintiffs in that case filed ten identical lawsuits naming hundreds of plaintiffs and then sought consolidation of the cases through trial.  The court rightfully thought that sounded like a proposal for a joint trial and denied plaintiffs’ motion to remand to state court.


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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.


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The Supreme Court today granted certiorari in a case, Mississippi v. AU Optronics Corp., No. 12-1036, to decide the following question:

Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the

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”

Three days ago, the United States Supreme Court unanimously upheld the federally-backed regime in Cafastan against the latest insurgent assault in Standard Fire Insurance Company v. Knowles, ___ S. Ct. ___, 2013 WL 1104735 (U.S. March 19, 2013).  The insurgents, in an attempt to avoid federal jurisdiction under CAFA, resorted to using the local populace (or at least, their purported absent class members’ claims) as a human shield.  The insurgents’ ultimatum?  Regardless of how much the would-be class’ claims might actually be worth, those claims will be decapitated, so that they cannot recover the minimum CAFA jurisdictional amount, which is $5 million.

The Supreme Court freed the hostages, holding, in accordance with Smith v. Bayer Corp., 131 S. Ct. 2368, 2380 (2011), that putative class representatives and their counsel were without power to bind the supposed class and decapitate their claims in this way:

The stipulation [plaintiff] proffered to the District Court, however, does not speak for those he purports to represent.  That is because a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified.  Because his precertification stipulation does not bind anyone but himself, [plaintiff] has not reduced the value of the putative class members’ claims.

2013 WL 1104735, at *3-4 (citations omitted).  Because jurisdiction – and thus, the jurisdictional amount – is determined “as of the time [the action] was filed in state court,” id. at *4, the Court held that the insurgents were subject to extraordinary rendition to Cafastan, where their own claims might be subject to decapitation by stipulation, but not those of absent class members:

[T]he stipulation at issue here can tie [plaintiff’s] hands, but it does not resolve the amount-in-controversy question in light of his inability to bind the rest of the class.  For this reason, we believe the District Court, when following [CAFA] to aggregate the proposed class members’ claims, should have ignored that stipulation.

Id. at *6.


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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.


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Sometimes bad enough should just be left alone.  That’s what a bunch of plaintiffs (and/or their lawyers) found out the other day from the Seventh Circuit in Abbott Laboratories, v. Alexander, Nos. 12-8020, et al., slip op. (7th Cir. Oct. 16, 2012).  Even when actions are filed in notoriously pro-plaintiff jurisdictions plaintiffs can’t get away with anything and everything – although they sure tried in Alexander.

Here’s what happened.  In 2010 and 2011 said bunch of plaintiffs – “several hundred” according to the court (id. at 2) – filed ten identical actions in three Illinois counties against the same defendant concerning the same drug.  Apparently plaintiffs are allowed to get away with such mass-misjoinders in Illinois.  See Anderson v. Bayer, 610 F.3d 390, 393 (7th Cir. 2010).  Can you guess the three Illinois counties where these filings occurred?  We sure could:

Madison.

St. Clair.

Cook.

That kind of huge misjoinder, barred in most places, was bad enough, but then the plaintiffs decided to prejudice the defendant even more by seeking consolidation of their prior complaints (with at minimum dozens of plaintiffs each) into one big unhappy monster:

Plaintiffs asked for consolidation of their lawsuits in St. Clair County because the cases “present common questions of fact . . . as well as common questions of law. . . .”  In the memorandum in support of their motion, plaintiffs said they were requesting consolidation of the cases “through trial” and “not solely for pretrial proceedings.”

Alexander, slip op. at 3 (document citations omitted).

Oops.  Pigs get fat, but hogs get slaughtered (or is it vice versa).  That was a bit much even for pro-plaintiff venues.  Plaintiffs – very unintentionally, we’re sure − triggered the “mass action” provision of CAFA by requesting such a consolidation.


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