The U.S. Court of Appeals for the Tenth Circuit this week declined to give its full blessing  to efforts by out-of-state defendants to remove lawsuits from state court to federal court when the suits involves numerous plaintiffs.  But in an opinion filed in In re Johnson & Johnson., the appeals court indicated its belief that this case, involving hundreds of plaintiffs raising identical claims, would likely make its way back to federal court eventually.  The decision was a partial setback for WLF, which filed a brief urging the appeals court to permit the case to remain in federal court.  WLF argued that a district judge’s order remanding a massive product liability suit back to state court was inconsistent with the Class Action Fairness Act (CAFA), a 2005 federal law designed to permit removal of virtually all large class action and “mass action” lawsuits into federal court.  The appeals court balked, noting that at least for now, the plaintiffs remained divided into groups of less than 100 individuals per case, the numerical threshold for removal under CAFA.

CAFA permits defendants to move most  “mass actions”—cases with 100 or more plaintiffs that involve very large damage claims—from state court to federal court, which are generally deemed to harbor less prejudice against out-of-state corporate defendants.  The plaintiffs’ bar has adopted numerous tactics designed to defeat CAFA removal rights, including (as in this case) dividing hundreds of virtually identical claims among several lawsuits, thereby ensuring that none of the suits meets CAFA’s 100-plaintiff minimum.  WLF argued that Congress intended to permit CAFA removal whenever, as here, the total number of claims filed in coordinated legal proceedings before a single judge exceeds 100.  The Tenth Circuit ruled that although the cases were filed before the same judge, removal was premature because the plaintiffs had not yet taken any steps to “coordinate” the proceedings.  The court added, however, that once (as will almost surely happen) the plaintiffs take steps to coordinate—for example, if there are issues of law common to all the plaintiffs, they ask the trial judge to issue a single decision rather than 650 separate decisions—then the defendants will be permitted to remove all of the cases to federal court.

The cases involves 650 product liability claims against Johnson & Johnson and its Ethicon, Inc. subsidiary; the plaintiffs contended that they suffered injuries from pelvic mesh surgical devices manufactured by Ethicon.  Following the court’s decision, WLF issued the following statement by Chief Counsel Richard Samp:

“The plaintiffs’ bar should not be permitted to frustrate the will of Congress that large class and ‘mass’ actions be removable to federal court as a means of ensuring that out-of-state defendants can have their cases heard in an impartial forum.  If a ‘mass action’ before a single judge has 100 or more plaintiffs, removal under CAFA is warranted.  It should make no difference that attorneys have sought to ‘game’ the system by dividing their coordinated claims into groups of 100 or less.”

WLF is a public interest law firm and policy center with supporters in all 50 States.  WLF devotes a substantial portion of its resources to legal reform and reining in excessive litigation.  A copy of its brief is posted on its website,