The Class Action Fairness Act (CAFA) allows defendants to remove to federal court civil actions for money damages in which “claims of 100 or more persons are proposed to be tried jointly.” 28 U.S.C. § 1332(d)(11)(B)(i). In order to enjoy the cost-saving benefits of class action litigation—without the potential downside of removal to federal court—plaintiffs’ attorneys have taken to breaking classes into groups of 99 or fewer plaintiffs for purposes of trial, but seeking consolidation of the cases for pretrial purposes.

In Atwell v. Boston Scientific Corp., No. 13-8031 (8th Cir. Nov. 18, 2013), the Eighth Circuit held that such tactics make the joint resolution of common issues inevitable, and therefore evince the intent to have the claims tried jointly. Accordingly, the Eighth Circuit held that the individual cases were properly removed to federal court despite the number of plaintiffs in each case being less than 100. In so holding, the Eighth Circuit joined the Seventh Circuit and rejected a recent holding from the Ninth Circuit (covered in the October 2013 - Issue 2 of Lit Alerts) finding such a tactic does not constitute a proposal that the claims “be tried jointly.”