As discussed in more detail in a prior news entry, the U.S. Court of Appeals for the Ninth Circuit is reconsidering whether a petition pursuant to California Code of Civil Procedure § 404 to coordinate separate state court cases involving common questions before a single judge, constitutes a proposal that the cases “be tried jointly” sufficient to give rise to federal removal jurisdiction under the “mass action” provision of the federal Class Action Fairness Act (CAFA). The defendant drug manufacturers of propoxyphene-containing pain products successfully obtained en banc review after a divided three-judge panel ruled that removal was not allowed in these circumstances. At the same time, they petitioned the U.S. Supreme Court for a writ of certiorari, asking it to decide this issue or hold this appeal pending a decision by the Ninth Circuit en banc.

 CCL’s Louis M. Bograd and Andre M. Mura, representing plaintiffs injured by propoxyphene-containing pain products, have now completed briefing opposing Supreme Court review. Romo v. Teva Pharm. USA, Inc., No. 13-1015; Corber v. Xanodyne Pharm., Inc., No. 13-1016. The briefs in opposition urge the Court to deny the petitions for four reasons. First, the petitions are premature because the en banc Ninth Circuit’s review means there is no final judgment for the Supreme Court to review. Second, the question presented turns predominantly on a question of California procedure which the en banc Ninth Circuit has yet to consider. Third, review by the Supreme Court is not warranted absent a “split” in the lower courts. Fourth, the Supreme Court’s most recent decision concerning CAFA, Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014), provides sufficient guidance in this area, and lower courts should be given time to apply its teachings before further review by the Supreme Court.