In Corber v. Xanodyne Pharms., Inc., 771 F.3d 1218 (9th Cir. 2014), the United States Court of Appeals for the Ninth Circuit issued a significant opinion holding that Plaintiffs' petitions for statewide coordination of proxyphene (Darvon/Darvocet) actions in California "for all purposes" constituted proposals for the actions "to be tried jointly," making them mass actions removable under the Class Action Fairness Act ("CAFA").

To remove product liability cases as "mass actions" (as opposed to "class actions") under CAFA, there are two key prerequisites. First, there must be 100 or more cases. Second, Plaintiffs must make a proposal to try those cases jointly. The issue in Corber was whether Plaintiffs had made such a proposal in their petition seeking statewide consolidation. Closely parsing the language of the Plaintiffs' coordination motion, the district court had remanded the cases on the basis that Plaintiffs were seeking only pretrial coordination. A panel of the Ninth Circuit affirmed. But the en banc Court, in a decision written by Judge Ronald M. Gould, reversed and held that removal was proper.

The en banc decision focused on the language that Plaintiffs used in their petition for coordination. The Court found that Plaintiffs' petitions sought coordination "for all purposes," which necessarily must include trial. In addition, Plaintiffs listed avoidance of the danger of inconsistent judgments and conflicting determinations of liability as reasons for statewide coordination. The en banc Court reasoned that Plaintiffs' argument implied they were seeking joint trials.

The Corber case is a clear victory for defendants facing mass tort litigations. The two-judge dissent points out that in prior appellate cases finding CAFA removals proper due to a joint trial request, plaintiffs had specifically said in their briefs that they were seeking consolidation of the cases "through trial." In Corber, the Court went one step further and found an implied joint trial request without such an express statement. Corber further reinforces the need to stay vigilant for opportunities to remove mass actions whenever plaintiffs' actions or statements imply that they are seeking joint trials involving more than 100 plaintiffs