WLF urges Ninth Circuit to rehear propoxyphene case, remove to federal court

By Jessica M. Karmasek | Oct 22, 2013

SAN FRANCISCO (Legal Newsline) -- A public interest law and policy center headquartered in Washington, D.C., is urging a federal appeals court to uphold the right of out-of-state defendants to remove lawsuits from state to federal court when the suit involves numerous plaintiffs.

The Washington Legal Foundation, which promotes free enterprise, filed an amicus brief in Romo v. Teva Pharmaceuticals USA Inc. this week.

In its brief, WLF argues that the 2-1 decision of a three-judge panel remanding a product liability suit back to state court was "inconsistent" with the federal Class Action Fairness Act.

Congress adopted the Class Action Fairness Act in 2005 to ensure that the right of removal is protected for most such defendants, particularly in cases seeking significant damages and in which the plaintiff is suing to collect for alleged injuries on behalf of numerous individuals.

CAFA gives federal courts jurisdiction to certain class actions in which the amount in controversy exceeds $5 million, and in which any of the members of a class of plaintiffs is a citizen of a state different from any defendant, unless at least two-thirds or more of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the state in which the action was originally filed.

Business groups and tort reform supporters lobbied for the legislation, arguing that it was needed to prevent class-action lawsuit abuse.

WLF is urging the U.S. Court of Appeals for the Ninth Circuit to rehear the case en banc.

The court's three-judge panel held that the lawsuit did not qualify as a "mass action" and was not subject to CAFA.

The foundation argues that Congress intended CAFA to apply whenever -- as in this case -- the suit combines the claims of 100 or more plaintiffs.

Even if the plaintiffs do not ask explicitly that the claims of all plaintiffs be "tried jointly," CAFA permits removal whenever the plaintiffs ask that the claims be coordinated "for all purposes," WLF asserts.

"The panel decision strongly suggests that nothing that plaintiffs' counsel could do -- short of making an explicit statement that 'we hereby propose that all claims be tried jointly' -- would ever be sufficient to trigger the mass action provision," attorneys Richard Samp and Cory Andrews wrote in the foundation's 18-page brief.

"In light of Congress's determination that it is of critical importance that defendants faced with 'mass actions' should be afforded a federal forum and that plaintiffs should not be permitted to 'game the system' for the purpose of defeating removal, the issue of whether Congress really intended to define 'mass actions' as narrowly as the panel determined warrants en banc review by this Court."

The case involves the product liability claims of more than 1,500 individuals who claim to have suffered injuries after taking medications containing the active ingredient propoxyphene, a drug that was widely marketed in the United States between 1957 and 2010.

Named as defendants are nearly a dozen pharmaceutical manufacturers and wholesalers.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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