Removal under the "mass action" provision of the Class
Action Fairness Act (CAFA) is appropriate when 100 or more
plaintiffs take the affirmative step of proposing to try their
claims jointly and the claims involve common issues of law or fact.
The Ninth Circuit recently examined whether plaintiffs' request
for a bellwether trial in eight separate cases involving the same
allegedly defective medical devices amounted to a proposal to have
claims tried jointly thereby converting the lawsuit into a
removable "mass action." Under the specific facts of
plaintiffs' request, the Ninth Circuit held that CAFA removal
jurisdiction did not exist.
Plaintiffs sought consolidation of the eight cases "for all
pretrial purposes, including discovery and other proceedings, and
the institution of a bellwether-trial process." Defendant
Cordis Corporation interpreted plaintiffs' request as a
proposal to try their claims jointly and removed the cases by
invoking the CAFA mass action
