MDL Panel Weighs In On CAFA’s “Mass Action” Provision

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In re : Darvocet, Darvon and Propoxyphere Prods. Liab. Litig., MDL No. 2226, 2013 WL 1635469 (April 17, 2013), the U.S. Judicial Panel on Multidistrict Litigation considered a motion to transfer three action. The focus of the panel’s decision was CAFA’s “mass action” provisions and its effect on MDL transfers.

CAFA’s “mass action” provision authorize removal of an action where: (1) the monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that their claims involve common questions of law or fact; (2) the aggregate amount in controversy exceeds $5 million; (3) the claims of the individual plaintiffs each exceed $75,000; and (4) minimal diversity exists. See 28 U.S.C. § 1332(d)(11). Further, where an action is removed as a “mass action” under CAFA, it cannot be transferred by the MDL panel without the request of a majority of the plaintiffs. See 28 U.S.C. § 1332(d)(11)(C)(i).

The parties in the case objected to the transfer, relying on this latter provision. However, because the notices of removal all cited federal question jurisdiction and CAFA’s mass action provision as bases for removal; some of the other notices also relied on diversity jurisdiction. Thus, the issue for the panel was whether the provision limiting the panel’s authority to transfer applied where the cases had been removed on multiple bases, including removal based on CAFA’s mass action provision.

Finding the provision ambiguous, the panel undercook to analyze Congress’ intent. In doing so, the panel concluded that Congress did not intend that actions removed on multiple grounds, including the mass action provision, would be restricted from MDL transfer. The panel added: “While the provision’s language arguably might be read otherwise, such an interpretation would not square with Congress’s intent, and would bar transfer of (absent a request by a majority of the plaintiffs therein) cases that presumptively have been transferable, simply because the removing defendant cited CAFA mass action as but one ground supporting federal jurisdiction.” In re Darvocet, 2013 WL 1635469, at *4. Accordingly, the panel transferred the actions for coordinated or consolidated proceedings.