Back in December, we blogged about two cases in the Ninth Circuit that were the latest skirmishes in the fight over whether plaintiffs can evade removal under the Class Action Fairness Act of 2005 (“CAFA”) by artificially subdividing their mass actions. Plaintiffs have sought to make an end-run around CAFA’s provision permitting removal of mass actions raising “claims of 100 or more persons that are proposed to be tried jointly” (28 U.S.C. § 1332(d)(11)(B)(i)), by bringing parallel mass-action cases of fewer than 100 persons each, and asking that the cases be treated together for as many purposes as possible without crossing the line into a joint trial.
Some courts, such as the Eighth Circuit in Atwell v. Boston Scientific, have resisted those efforts. But a divided panel of the Ninth Circuit had issued two decisions—Romo v. Teva Pharmaceuticals USA, Inc., and its companion case, Corber v. Xanodyne Pharmaceuticals—affirming orders remanding cases in which the plaintiffs had sought joint treatment of two just-under-100-plaintiff mass actions under a California state-law procedure that allows coordination of certain civil actions “for all purposes.”
On Monday, the Ninth Circuit granted rehearing en banc (pdf) in both Romo and Corber. Although it’s perilous to predict how an en banc panel will rule in those cases, it isn’t hard to deduce why a majority of the court’s active judges might have thought the cases warranted rehearing. As we previously explained, the panel’s approach in Romo seems excessively formalistic; the panel focused on whether the plaintiffs had used the magic words of asking for a “joint trial,” while failing to consider the reality of how the mass actions were likely to be litigated. And the panel had, of course, created a circuit split with the Eighth Circuit in Atwell.
We’ll continue watching these cases, which are of tremendous importance to defendants’ right under CAFA to remove mass actions to federal court.