On June 19th, CCL Chief Litigation Counsel Louis Bograd argued before the en banc 9th Circuit in two consolidated appeals that address an important issue of federal removal jurisdiction under the Class Action Fairness Act (CAFA). Romo v. Teva, Inc. and Corber v. Xanodyne Corp. both arise out of propoxyphene litigation filed in California state courts. No individual propoxyphene suit in California involves 100 or more claimants, but in total more than 1500 plaintiffs have sued the manufacturers and distributors of propoxyphene there. After plaintiffs invoked a California procedure to coordinate the pending cases before a single judge, defendants removed the cases to federal court, contending that plaintiffs' coordination petition triggered the mass action provision of CAFA, which permits removal where the damage claims of more than 100 plaintiffs are "proposed to be tried jointly." To date, every district court to address the issue has concluded that plaintiffs' petition did not propose a joint trial, and a divided 9th Circuit panel agreed. Before the en banc court, Bograd emphasized that the plaintiffs had never invoked the separate procedure under California law for requesting a joint trial and stressed the differences between coordination and consolidation for trial. Bograd also explained to the court that bellwether trials, the manner in which mass pharmaceutical torts are most often litigated, are not binding on the non-bellwether parties and thus do not constitute a joint trial under CAFA. A decision is expected in a few months. 

Even while before the argument, the defendants had filed petitions for certiorari in the U.S. Supreme Court, fearing that a failure to do so would not preserve their appeal under CAFA’s strict timelines.  CCL’s Bograd and Andre Mura filed briefs in opposition to the petitions. On June 30, the Supreme Court denied both petitions, leaving the matter, at this point, to the Ninth Circuit’s en banc panel.