On August 6, 2015, the Ninth Circuit remanded five multi-plaintiff lawsuits alleging a link between a diabetes drug and pancreatic cancer to California state court. The Court held that the cases are not "mass actions" under the Class Action Fairness Act (CAFA) because Plaintiffs did not propose joint trials. Briggs v. Merck Sharp & Dohme, 2015 WL 4645605 (9th Cir. Aug. 6, 2015).
CAFA authorizes the removal to federal court of "mass actions," 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 or law or fact." 28 U.S.C. § 1332(d)(11)(B)(i) (emphasis added). The statute excludes actions in which the claims are joined upon a defendant's motion or in which the claims are consolidated or coordinated only for pretrial proceedings. Id. § 1332(d)(11)(B)(ii)(II), (IV).
Congress enacted CAFA in 2005 to curb plaintiffs' attempts to circumvent removal in order to litigate multistate or national class actions in state courts. Since 2005, however, courts have repeatedly grappled with CAFA's scope in pharmaceutical mass tort cases, and specifically on the question whether plaintiffs have made the required "proposal" to try the cases jointly.
In Briggs, Plaintiffs filed five separate cases in California state court, each with fewer than one hundred plaintiffs. Defendant removed all five cases to federal court under CAFA, and Plaintiffs moved to remand the cases. The district court denied Plaintiffs' remand motions and held that Plaintiffs actions' constituted implicit proposals for joint trial. Specifically, Plaintiffs in three cases had told the district court that the cases, if remanded, would be transferred to a preexisting state coordinated proceeding and would be coordinated for all purposes there, including for trial. Plaintiffs in the fourth case similarly stated that remand would result in coordination. As to the fifth case, the district court determined that filing the case in the same court with the four other actions also constituted an implicit proposal to try the case jointly.
The Ninth Circuit panel unanimously reversed the district court's decision and held that Plaintiffs' actions did not rise to the level of proposing a joint trial. Although the Court agreed that implicit proposals may trigger CAFA jurisdiction, it determined that Plaintiffs' actions did not qualify for two reasons. First, to qualify as a proposal, a request for a joint trial must be addressed to the court that can effect the proposed relief. But the district court here to which the claimed proposals were made lacked any authority to transfer plaintiffs' cases to the state coordinated proceeding. Second, Plaintiffs' particular statements at most constituted predictions that the state court would consolidate these proceedings, not a proposal to do so. The panel thus distinguished the instant case from an earlier en banc decision in Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014), in which the Court held that a petition to initiate a state coordinated proceeding "for all purposes" was a proposal for a joint trial. Accordingly, the Court remanded all five cases to California state court.
Briggs reinforces that courts will finely parse plaintiffs' statements and actions in mass tort cases to make fine judgments about whether there has been a proposal to try cases jointly. Defendants should remain vigilant and look for opportunities to invoke federal jurisdiction when such a proposal is made.