Mass or morass: When claims are ‘proposed to be tried jointly’ under CAFA’s ‘mass action’ mechanism

A recent circuit split regarding the scope of the “proposal” necessary positions the question for Supreme Court review

An important split in the circuits has developed regarding removal of mass actions to federal court under the Class Action Fairness Act of 2005 (CAFA). Under CAFA, mass actions — cases in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact — may be removed from state court. Plaintiffs’ lawyers regularly have avoided CAFA’s mass action removal provision by filing separate but virtually identical lawsuits in state courts, each involving fewer than 100 plaintiffs, in an effort to keep their large, high-value cases in their preferred local courthouse. While the courts have permitted this practice, plaintiffs have started going one step further:  They have moved to consolidate or coordinate their separate cases in state court to obtain the benefits of one action for over 100 plaintiffs while attempting to avoid removal by claiming that their requests are not proposals for joint trial.

But federal courts are scrutinizing plaintiffs’ coordination requests closely to determine whether they are in actuality proposals to try the cases jointly that would trigger CAFA’s removal mechanism. And a recent circuit split regarding the scope of the “proposal” necessary positions the question for Supreme Court review. The issue is that while mass action removal jurisdiction exists if such lawsuits are “proposed to be tried jointly” by plaintiffs, CAFA provides that removable class actions do not include any civil actions in which “the claims have been consolidated or coordinated solely for pretrial proceedings.” The circuit courts dispute where the line should be drawn in differentiating coordination proposals for pretrial purposes only from proposals to try jointly.

Contributing Author

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Desmond Hogan

Desmond Hogan is a partner with Hogan Lovells in Washington D.C. Hogan's practice focuses on high-stakes class-action litigation, other complex commercial litigation, and governmental investigations....

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Contributing Author

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Rebecca Mandel

Rebecca Mandel is a senior associate in the Washington, DC office of Hogan Lovells. Her complex commercial litigation practice and general civil litigation practice encompass...

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