Thursday, September 26, 2013
The Supreme Court is set to hear arguments this term on the mass action exception as it relates to parens patriae suits in Mississippi ex rel Hood v. AU Optronics (see the coverage on scotusblog). The issue in that case is "Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint."
In another case percolating up, the 9th Circuit ruled on Tuesday that a collection of cases all brought in state court against one drug manufacturer with similar allegations of injury do not fall within the mass action exception and aren't removable. The case, Romo v. Teva Pharmaceuticals USA can be found on the 9th Circuit website. It involves a number of cases filed against the generic drug manufacturer in California. The plaintiffs moved to coordinate the cases in California courts. The defendant responded by trying to remove to federal courts, arguing that this falls under the jurisdiction of the federal courts because CAFA provides that more then 100 cases cases sharing common issues of fact or law proposed to be tried jointly may be removed -- the "mass action" exception. In In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012) the 7th Circuit held that coordinated cases set to be consolidated "through trial" were subject to the mass action exception and were removable. The 9th Circuit distinguished Abbott and agreed with the plaintiffs that a consolidation for discovery purposes is not the same as a request to try the cases jointly, underscoring that jurisdictional provisions are strictly construed.