Motion to consolidate triggers CAFA removal

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December 4, 2012

Motion to consolidate triggers CAFA removal 

The Seventh Circuit Court of Appeals held, in an issue of first impression, that class consumers’ motion to consolidate their cases in state court “through trial” was a proposal for a joint trial requiring removal under the Class Action Fairness Act (CAFA).

Hundreds of plaintiffs filed 10 class action lawsuits in Illinois state courts against Abbott Laboratories, Inc., alleging they were injured by the seizure medication Depakote. The plaintiffs moved the Illinois Supreme Court to consolidate the cases “through trial” and transfer them to one court. Abbott removed the cases to two federal courts, arguing that the motion triggered CAFA’s “mass action” provision, which allows removal when 100 or more people propose to try their claims jointly.

The plaintiffs sought remand, arguing that their motion did not propose a joint trial because it did not specify how the trials would be conducted, other than proposing they all take place in one county. The plaintiffs contended that their motion simply requested that the claims be “coordinated” through trial, with the trial court deciding how to conduct the cases.

One trial court granted the plaintiffs’ motion for remand, ruling that the plaintiffs were proposing only consolidated discovery and pretrial proceedings. The other trial court denied remand.

Affirming removal, the Seventh Circuit said that although the plaintiffs stopped short of explicitly requesting a joint trial, such a proposal can be implicit, particularly where the assumption would be that they intended a single trial. The plaintiffs’ proposal specified that consolidation was “not solely for pretrial proceedings” and would facilitate efficient disposition “with the risk of inconsistent adjudication.” The court noted that it is difficult to see how this consolidation could occur without a joint trial or an exemplar trial applying the legal issues to all cases. It does not matter whether the trial court ultimately decides to try the cases together, the court ruled, because the statutory question is whether a joint trial has been proposed.

The court also rejected the plaintiffs’ argument that even if the motion proposed a joint trial, they filed it with the supreme court, which wasn’t the forum in which the suits were pending, as required by precedent. The statute does not specify where a joint trial proposal must be made, but a reasonable conclusion is that it must be made to a court that can grant the proposed relief, the court said. The supreme court can do so because it has the power to decide where the cases will ultimately be litigated, the court concluded.

Citation: In re Abbott Labs., Inc., 2012 WL 4875584 (7th Cir. Oct. 16, 2012).

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