“The appeals court decision frustrates the will of Congress that large class and ‘mass’ actions be removable to federal court as a means of ensuring that defendants can have their cases heard in an impartial forum. If allowed to stand, the decision will serve as a roadmap for plaintiffs’ lawyers seeking to keep their lawsuits out of federal court.”
—Richard Samp, WLF Chief Counsel
(Washington, DC)—Washington Legal Foundation filed an amicus brief in Cordis Corp. v. Dunson on Monday, September 18, 2017, supporting a cert petition to the US Supreme Court. WLF’s brief calls on the Court to uphold the right of defendants under the Class Action Fairness Act (CAFA) to remove lawsuits that involve 100 or more plaintiffs from state to federal court.
The case involves more than 300 individuals who claimed injury through use of a medical device (an IVC filter) manufactured by Cordis. CAFA permits defendants to remove most cases from state court to federal court if there are more than 100 plaintiffs. In an effort to defeat the defendant’s removal rights, the plaintiffs’ attorneys divvied up their 300 clients among 30 separate lawsuits filed in state court in Alameda County, CA, thereby ensuring that none of the suits exceeded CAFA’s 100-plaintiff threshold.
The plaintiffs thereafter filed a petition asking the state court to consolidate all of the cases before a single judge. When plaintiffs seek to consolidate their separate cases in a state court, they have in effect conceded that those cases constitute a “mass action,” and Congress has decreed that such mass actions belong in federal court.
The district court held that the suit did not qualify as a “mass action” and thus could not be removed to federal court under CAFA. The Ninth Circuit Court of Appeals agreed, even though the plaintiffs’ consolidation motion explicitly requested establishing a “bellwether-trial process” for adjudicating common issues.
WLF argues that these lawsuits are removable under CAFA because the law applies whenever a suit combines the claims of 100 or more plaintiffs and does not limit the requested consolidation solely to pretrial proceedings. WLF’s brief urges the Supreme Court to grant this petition so that it may resolve the circuit conflict on this issue and ensure that interstate cases of national importance can be heard in federal court.
Celebrating its 40th year, WLF is America’s premier public-interest law firm and policy center advocating for free-market principles, limited government, individual liberty, and the rule of law.