En Banc Ninth Circuit Will Clarify When a Subdivided Mass Action Can Be Removed Under CAFA

Back in December, we blogged about two cases in the Ninth Circuit that were the latest skirmishes in the fight over whether plaintiffs can evade removal under the Class Action Fairness Act of 2005 ("CAFA") by artificially subdividing their mass actions. Plaintiffs have sought to make an end-run around CAFA's provision permitting removal of mass actions raising "claims of 100 or more persons that are proposed to be tried jointly" (28 U.S.C. § 1332(d)(11)(B)(i)), by bringing parallel mass-action cases of fewer than 100 persons each, and asking that the cases be treated together for as many purposes as possible without crossing the line into a joint trial.

Some courts, such as the Eighth Circuit in Atwell v. Boston Scientific, have resisted those efforts.  But a divided panel of the Ninth Circuit had issued two decisions—Romo v. Teva Pharmaceuticals USA, Inc., and its companion case, Corber v. Xanodyne Pharmaceuticals—affirming orders remanding cases in which the