In Romo v. Teva Pharmaceuticals USA, Inc., (and its companion case, Corber v. Xanodyne Pharmaceuticals, Inc.) the Ninth Circuit, sitting en banc, reversed a panel decision remanding to California state court multi-plaintiff lawsuits involving defective pain medications under the Class Action Fairness Act of 2005 (“CAFA”), which allows defendants to remove to federal court certain cases raising “claims of 100 or more persons that are proposed to be tried jointly.”  28 U.S.C. § 1332(d)(11)(B)(i).

Romo and Corber—which are substantially similar to several other pending California cases—involve alleged injuries that were sustained due to the ingestion of propoxyphene, one of the ingredients in Darvocet, Darvon, and other generic pain relievers.  Each of these actions involves multiple plaintiffs.  Not enough to satisfy the CAFA 100-plaintiff threshold individually, but the actions have far more than 100 plaintiffs when considered together.  

In 2012, plaintiffs filed petitions asking the California Judicial Counsel to establish a coordinated proceeding for all California propoxyphene actions.  After plaintiffs filed their coordinated petitions, defendants removed the cases to federal court under CAFA’s “mass action” provision.  The district court held that it lacked jurisdiction under CAFA because plaintiffs’ petitions for coordination were not proposals to “try the cases jointly,” and it remanded the cases back to the state court.  A three-judge panel affirmed, but the Ninth Circuit granted a rehearing en banc. 

The Ninth Circuit, sitting en banc, reversed the district court’s remand orders.  The court rejected the argument that plaintiffs must expressly request a single joint trial before defendants may remove a mass action under CAFA.  The court explained that such a rule would otherwise “ignore the real substance” of plaintiffs’ proposals and how the mass actions were likely to be litigated in practice.  The court also observed that plaintiffs’ request to coordinate the lawsuits “for all purposes,” as well as their concern for the “danger of inconsistent judgments and conflicting determinations of liability,” indicated that plaintiffs’ petitions for coordination were proposals for a “joint trial.”  The Ninth Circuit therefore concluded that the coordinated lawsuits constituted a “mass action,” subject to removal and federal jurisdiction under CAFA.

Despite the Ninth Circuit’s decision, plaintiffs’ attorneys will likely continue to artfully plead mass actions in order to avoid federal court.  Defense attorneys will therefore need to combat such tactics by seeking judicial relief from the federal courts on the basis that such tactics are inappropriate under CAFA.