"Mass Action" Removal Under CAFA - Defining "More Than 100 Persons ... Tried Jointly" - Courts in Conflict

February 12 2014 | Committees

By William B. Gaudet and Anil Mujumdar

Two continuing issues of local and national importance for federal jurisdiction (or avoiding it) under the Class Action Fairness Act (“CAFA” or the “Act”)[1] are “mass actions” brought by “the state”  and consolidated actions separately filed in state court to avoid CAFA jurisdiction.

 On November 6, 2013, the Supreme Court heard oral argument in Mississippi ex rel. Hood v. AU Optronics Corp.[2]  The Court’s forthcoming opinion is expected to decide whether parens patriae actions are considered mass actions as defined by CAFA.

                In Mississippi v. AU Optronics, the State of Mississippi sued various manufacturers and distributors of liquid crystal display (“LCD”) panels in state court alleging violations of the Mississippi Consumer Protection Act[3] and the Mississippi Antitrust Act.[4]  The defendants removed the matter to federal court pursuant to CAFA, which allows for “removal of a suit to federal court…if the suit qualifies as a ‘class action’ or ‘mass action.’”[5]  At issue is whether parens patriae actions, wherein a state has standing to bring an action to remedy injuries suffered by its citizens,[6] meet CAFA’s definition of a “mass action” and therefore are removable to federal court.[7]  CAFA defines “mass action” as “any civil action…in which monetary relief claims of 100 or more persons are proposed to be tried jointly on grounds that plaintiffs’ claims involve common questions of law or fact.”[8]

The Fifth Circuit resolved this issue against Mississippi finding that the attorney general’s complaint sought redress of injuries both to the state and consumers and thus “the real parties in interest include not only the State, but also individual consumers residing in Mississippi.”[9]

                In a decision handed down by the Fifth Circuit on December 2, 2013, Hood v. JP Morgan, et. al. 2013 WL 6230960 (5th Cir., Dec. 2, 2013), the court again addressed CAFA jurisdiction in six parens patriae suits brought by the attorney general of Mississippi. Although maintaining its prior holding that the real parties in interest were the citizens of the state, the court found CAFA jurisdiction lacking because no individual plaintiff met the $75,000 amount in controversy. 

When courts are evaluating the scope of CAFA’s jurisdiction, language matters not just at the pleadings stage, but in the subsequent motion practice as well.  In this regard, two recent circuit court cases evidence that the particular wording of plaintiffs’ respective motions to coordinate or consolidate can yield drastically different results.  For example, in Romo v. Teva Pharmaceuticals USA, Inc.,[10] the court held that the plaintiffs’ motion for coordination[11] in state court of various injury lawsuits against the defendant pharmaceutical company, each of which contained fewer than CAFA’s 100 plaintiff threshold, did not invoke CAFA’s jurisdiction because the plaintiffs did not request a “joint trial.”  Whereas in Atwell v. Boston Scientific Corp.,[12] the court yielded opposite results from Romo by applying In re Abbott Laboratories, Inc.,[13] to the plaintiffs’ similar motion in state court to reassign various transvaginal mesh injury cases against Boston Scientific “to a single Judge for purposes of discovery and trial.”[14]  At oral argument on the motion to reassign, plaintiffs’ counsel argued “that the motion was intended ‘to have it assigned to the judge that’s going to try the case because of the complexity that’s going to occur all the way through’.”[15]  Here the court found the existence of CAFA jurisdiction because plaintiffs’ “counsel’s statements revealed the purpose of their motions – a joint assignment in which the ‘inevitable result’ will be that their cases are ‘tried jointly.’”[16] Any plaintiff’s counsel seeking to maintain litigation in state court that arguably could be construed as a mass action must carefully plead and move; and contrarily, any defendant’s counsel looking for a hook on which CAFA can bite must fastidiously explicate all the plaintiffs’ filings and argument in order to find the right words which signal that the litigation is in fact a “mass action” to which CAFA applies.

[1] See 28 U.S.C. §§ 1332(d) and 1453.

[2] No. 12-1036 (U.S. filed February 19, 2013).

[3] See Miss. Code Ann. § 75-24-1 et seq.

[4] See Miss. Code Ann. § 75-21-1 et seq.

[5] See State ex rel. Hood v. AU Optronics, Corp., 701 F.3d 796, 799 (5th Cir. 2012).

[6] See e.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982).

[7] Outside of the Fifth Circuit, appellate courts have held that CAFA does not apply to parens patriae actions.  See e.g., Nevada v. Bank of America Corp., 672 F.3d 661, 668 (9th Cir. 2012).

[8] See 28 U.S.C. §§ 1332(d)(11)(B)(i).

[9] State ex rel. Hood v. AU Optronics, Corp., 701 F.3d 796, 800 (5th Cir. 2012).

[10] 2013 U.S. App. Lexis 19527 (9th Cir. September 24, 2013).

[11] The plaintiffs requested coordination pursuant to Cal. Code of Civ. P. § 404, which permits coordination of “all of the actions for all purposes.”

[12] 2013 U.S. App. Lexis 23182 (8th Cir. November 18, 2013).

[13] 698 F.3d 568 (7th Cir. 2012).

[14] Atwell v. Boston Scientific Corp., 2013 U.S. App. Lexis 23182 at *4.

[15] Id. at *15-16.

[16] Id. at *16.


Note:  This article originally appeared in the Winter 2014 issue of Briefly Speaking. The article contained additional paragraphs appended from another article that were not part of the original article. We regret the error.

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