When A Single-Plaintiff Lawsuit Is A "Mass Action"

Four years ago, the Fifth Circuit became one of the first courts to consider the application of CAFA's "mass action" provision to a suit filed by a state attorney general on behalf of a subset of injured citizens. The court's approach has since been rejected in other circuits. Now, a recent case in which the Fifth Circuit awkwardly applied its own precedent has created a confusing set of circumstances and led at least one Fifth Circuit judge to opine that the other courts probably have it right after all.

CAFA provides that removal of a case to federal court is proper if the suit is either a "class action"—defined with reference to Rule 23 and parallel state law provisions—or a "mass action." A case is a "mass action" under CAFA if it proposes the joint trial, based on common questions of law or fact, of monetary relief claims of at least 100 persons with an amount in controversy of at least $75,000.