In Corber v. Xanodyne Pharmaceuticals, the Ninth Circuit – on rehearing en banc –examined the applicability of the “mass action” provision of CAFA, which provides federal jurisdiction for any civil action in which monetary relief claims of 100 or more persons are “proposed to be tried jointly.” Pursuant to California Code of Civil Procedure 404.1, plaintiffs moved for coordination of their cases alleging injuries relating to ingestion of a drug ingredient. Defendants removed, arguing that the coordination petition constituted a proposal “to be tried jointly.” The district court granted plaintiff’s motion to remand and a three-judge panel affirmed. On rehearing en banc, the Ninth Circuit in an issue of first impression agreed with defendants: plaintiffs’ petitions sought coordination “for all purposes,” which the court read to include trial, and included issues which would be addressed only through some form of joint trial. In so holding, the Court distinguished situations where plaintiffs’ petitions expressly limit their requests for consolidation to pre-trial matters only. The Seventh and Eighth Circuits have reached similar conclusions.
In Woods v. Standard Insurance Co., plaintiffs brought a putative class action of New Mexico government employees alleging they did not receive the insurance coverage they paid for from payroll deductions. Plaintiffs named Standard Insurance Company, one of its employees, and a division of the New Mexico government as defendants. At issue was the district court’s remand order. The Tenth Circuit court examined the “state action” provision of CAFA, deciding that the language “the primary defendants are States, State officials, or governmental entities” evidenced an intent to preclude CAFA jurisdiction “only when all of the primary defendants are states, state officials, or state entities” (emphasis supplied). The court also found that the “local controversy exception” did not apply: though the employee of Standard was a New Mexico citizen, the real demand for relief was on the insurance company itself, not its local agent. The Court remanded the case for determination of whether CAFA’s five million plus dollar amount in controversy requirement was met.