News & Events

Ninth Circuit: Proposal To Consolidate Pretrial Proceedings Does Not Trigger Federal Jurisdiction Under Class Action Fairness Act (CAFA)

The Plaintiffs brought a products liability action against Teva Pharmaceuticals alleging injuries sustained as a result of ingesting propoxyphene.  The Roma case is one of twenty six cases pending in U.S. District Court in California.  More than forty actions have been filed in California state courts regarding products containing propoxyphene.

After filing the lawsuit, a group of attorneys representing plaintiffs in several of the propoxyphene cases filed a petition asking the California Judicial Council to establish a coordinated proceeding for all California propoxyphene actions.  After the petition was filed, Teva removed the case to federal court pursuant to CAFA’s mass action provision.  According to Teva, the petition constituted a proposal to be tried jointly under CAFA and therefore rendered the action removable. The primary issue in this appeal was whether removal was proper under the “mass action” provision of the Class Action Fairness Act (CAFA).

The District Court remanded the case to state court holding that the petition for coordination did not constitute a proposal to try the cases jointly.  The Ninth Circuit granted Teva permission to appeal the remand order.  On appeal, the Ninth Circuit noted that this was a case of first impression and affirmed the remand order.  The court held that the petition constituted a proposal for consolidation of pretrial proceedings rather than a request to try the cases together.

This case is in contrast to a Seventh Circuit case, In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012), which held that a consolidation request made the case properly removable under CAFA.  This split between circuits may lead to a future decision by the United States Supreme Court to resolve the issue.