In Bacher v. Boehringer Ingelheim Pharmaceuticals, Inc., 110 F.4th 95 (2d Cir. 2024), the Second Circuit considered whether a proposed consolidation of nine lawsuits in state court allowed the defendant to remove the case to federal court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”) provision regarding mass actions.
At issue was the provision in CAFA that confers subject matter jurisdiction in the federal courts for “mass actions … in which monetary relief claims of 100 or more persons are proposed to be tried jointly.” 28 U.S.C. §1332(d)(11)(B)(i). The term “mass action” expressly excludes claims that “have been consolidated or coordinated solely for pretrial proceedings.” 28 U.S.C. §1332(d)(11)(B)(ii)(IV). Each complaint at issue in Bacher—seven of which had 99 plaintiffs; two of which had 80 plaintiffs—contained “virtually indistinguishable state-law personal injury claims” against the same eight defendants that marketed the product. Bacher, 110 F.4th at 98. Each suit included three defendants and one plaintiff domiciled in Connecticut and contained fewer than 100 plaintiffs. Id.
The plaintiffs’ counsel and defense counsel communicated regarding the plaintiffs’ desire to consolidate the actions and transfer them to a specialized state court complex litigation docket. After the agreed motion for consolidation was filed, the defendants removed the case to federal court. The defendants argued that the motion sought to consolidate the cases pursuant to a Connecticut state statute, Conn. Prac. Book § 9-5(a), which provides that it allows consolidation “for trial.”
The Second Circuit rejected the defendants’ argument, holding that the proper inquiry was focused on the plaintiffs’ intent regarding consolidation. And the court found the plaintiffs had evinced a clear intent to avoid federal jurisdiction in how they had structured their complaints—including by inserting a “lengthy, express disclaimer of federal jurisdiction.” Id. at 99–101. This showed that the plaintiffs did not intend to seek consolidation for trial purposes and that the citation to the relevant Connecticut state statute was insufficient to establish otherwise.