In the October 2013 and March 2014 editions of Lit Alerts, we discussed the Ninth Circuit’s panel decision in Romo v. Teva Pharmaceuticals USA, Inc., No. 13-56310 (Sept. 25, 2013), which held that a plaintiff’s motion for coordination of state actions did not constitute a proposal for the actions to be “tried jointly” such that removal under the Class Action Fairness Act of 2005 (CAFA) is authorized. CAFA authorizes removal of “mass actions,” defined as “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). On June 30, 2014, the United States Supreme Court denied Teva’s petition for certiorari in Romo.
The Supreme Court’s denial clears the way for the Ninth Circuit to answer in an en banc decision whether coordinated, but not consolidated, cases can be properly removed under CAFA. En banc arguments before the Ninth Circuit were heard earlier in June, where Teva’s counsel argued that plaintiff’s proposal for coordination went beyond requests to coordinate pretrial issues, and that some issues would instead be addressed in some form of a joint trial. The Ninth Circuit has not yet issued a decision.