Thursday, October 18, 2012
Consolidation Request Backfires On Plaintiffs
Sometimes bad enough should just be left alone. That’s what a bunch of plaintiffs (and/or their lawyers) found out the other day from the Seventh Circuit in Abbott Laboratories, v. Alexander, Nos. 12-8020, et al., slip op. (7th Cir. Oct. 16, 2012). Even when actions are filed in notoriously pro-plaintiff jurisdictions plaintiffs can’t get away with anything and everything – although they sure tried in Alexander.
Here’s what happened. In 2010 and 2011 said bunch of plaintiffs – “several hundred” according to the court (id. at 2) – filed ten identical actions in three Illinois counties against the same defendant concerning the same drug. Apparently plaintiffs are allowed to get away with such mass-misjoinders in Illinois. See Anderson v. Bayer, 610 F.3d 390, 393 (7th Cir. 2010). Can you guess the three Illinois counties where these filings occurred? We sure could:
That kind of huge misjoinder, barred in most places, was bad enough, but then the plaintiffs decided to prejudice the defendant even more by seeking consolidation of their prior complaints (with at minimum dozens of plaintiffs each) into one big unhappy monster:
Plaintiffs asked for consolidation of their lawsuits in St. Clair County because the cases “present common questions of fact . . . as well as common questions of law. . . .” In the memorandum in support of their motion, plaintiffs said they were requesting consolidation of the cases “through trial” and “not solely for pretrial proceedings.”
Alexander, slip op. at 3 (document citations omitted).
Oops. Pigs get fat, but hogs get slaughtered (or is it vice versa). That was a bit much even for pro-plaintiff venues. Plaintiffs – very unintentionally, we’re sure − triggered the “mass action” provision of CAFA by requesting such a consolidation.
Removal to federal court thus followed.
Plaintiffs moved to remand, but thankfully Cook County is in a different judicial district (Northern rather than Southern District of Illinois). As we’ve commented before, federal courts in the Southern District of Illinois have tended to stretch the law to prevent cases from their local what-ATRA-calls thems from landing on their dockets. That’s apparently not the case in the Northern District, because while some of the Anderson plaintiffs got their desired remands in Little Egypt, the Northern District ruled that CAFA had been triggered and denied remand. Alexander, slip op. at 4-5.
Why is that critical? Well, it’s ordinarily really, really hard to get appellate review of decisions ordering the remand of cases to state courts, but flatly contradictory decisions by two different district courts on the effect of the same consolidation motion justifiably attracted the attention of the Seventh Circuit.
The Court of Apeals ruled that once plaintiffs sought consolidation “through trial” and “not solely for pretrial,” they were, at least “implicitly” (we’d say explicitly) “proposing” a joint trial within the meaning of CAFA (28 U.S.C. §1332(d)(11)(B)(i)):
[A] proposal for a joint trial can be implicit, particularly where the assumption would be that a single trial was intended. . . . [A] joint trial does not have to encompass relief. . . . [These] plaintiffs requested consolidation of their cases “through trial” and “not solely for pretrial proceedings.” They further asserted that consolidation through trial “would also facilitate the efficient disposition of a number of universal and fundamental substantive questions”. . . . [I]t is difficult to see how a trial court could consolidate the cases as requested by plaintiffs and not hold a joint trial or an exemplar trial with the legal issues applied to the remaining cases.
Alexander, slip op. at 7-8 (emphasis added). Under CAFA, a mass trial only need be “proposed” – no court need have ordered it. Id. at 8. That’s the key. Once 100 or more plaintiffs so much as seek, even “implicitly” a mass trial, BOOM! the action is CAFA removable. Sharp eyes are essential, and given the stakes, they can save our clients who knows how many millions of dollars.
Finally, the plaintiffs tried to take advantage of their own procedural error to avoid CAFA removal. They claimed that they filed their consolidation petition in the wrong court under state rules. The Seventh Circuit said “so what” − the court they asked could have done it, even if the procedure wasn’t 100% regular:
Here, plaintiffs filed their motion to consolidate with the Supreme Court of Illinois, which has the power not only to consolidate plaintiffs’ cases through trial but also to decide where plaintiffs’ cases will ultimately be.
Alexander, slip op. at 9. Thus federal jurisdiction under CAFA was appropriate.
Frankly, we weren’t 100% sure whether to post on Alexander because we thought at first that, surely, it was a one-off case – that once having gotten burned by CAFA removal in this fashion, plaintiffs would never use this kind of loose language again. But according to the opinion, this is at least the third time this kind of thing has happened, just in the Seventh Circuit. See Koral v. Boeing, Co., 628 F.3d 945, 947 (7th Cir. 2011) (plaintiffs came “just short” of proposing mass trial in opposing motion to dismiss); Bullard v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759, 762 (7th Cir. 2008) (plaintiffs “implicitly” proposed a mass trial in complaint). Thus, the broader lesson of Alexander is that defendants need: (1) to know how the “mass action” part of CAFA works, and (2) to watch for this kind of thing (“implicit” mass trial proposals), and (3) pounce when it happens. The situation potentially arises any time we’re faced with more than 100 plaintiffs in state court who are attempting to coordinate their purportedly separate actions while still trying to fly under CAFA’s radar.
Alexander happened because the defendants in this instance litigated smarter than the plaintiffs. It’s the job of this blog to make sure that this happens as often as possible.