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The Class Action Fairness Act of 2005 (CAFA), Pub. L. No. 109-2, 119 Stat. 4, famously created new federal original jurisdiction for class actions, as well as new special removal provisions for class actions filed in state court. To date, CAFA controversies have focused on burdens of establishing original and removal jurisdiction, retroactivity issues and CAFA’s $5 million amount-in-controversy requirement. Buried deep in CAFA’s convoluted statutory scheme is a set of sleeper provisions that have nothing to do with class action litigation. Rather, these provisions permit removal of “mass actions,” an altogether new concept in federal civil procedure. It was only a matter of time before an enterprising defendant turned to CAFA’s “mass action” provisions to remove a state case into federal court, thereby inspiring an array of legal questions of first impression. On April 6, the 9th U.S. Circuit Court of Appeals issued the first appellate decision to address CAFA’s mass action provisions. Abrego v. The Dow Chemical Company, 2006 U.S. App. Lexis 8077 (9th Cir. April 4, 2006). In an opinion that sheds more murk than light, the 9th Circuit, at great length, details the myriad problems with the “bewildering language” of CAFA’s mass action provisions, without actually deciding the propriety of the defendant’s attempted mass action removal. A look at CAFA’s mass action provisions CAFA vested federal courts with new original jurisdiction to hear class action cases in the courts’ diversity jurisdiction. After a lengthy recitation of requirements and exceptions to class action jurisdiction, CAFA states: “For the purposes of this subsection and section 1453 [class action removal jurisdiction], a mass action shall be deemed to be a class action removable under paragraphs (2) through (10) if it otherwise meets the requirements of those paragraphs.” 28 U.S.C. 1332(d)(11)(A). CAFA then defines a mass action as “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).” 28 U.S.C. 1332(d)(11)(B)(i). This (11)(B)(i) provision, then, seemingly ties mass action jurisdiction to the regular diversity amount-in-controversy requirement that each plaintiff claim $75,000 in damages. Finally, CAFA contains a number of provisions that exclude certain types of lawsuits from the purview of mass actions subject to removal. 28 U.S.C. 1332(d)(11)(B)(ii). The Abrego litigation was ripe, so to speak, to test CAFA’s mass action provisions. In April 2005, 1,160 Panamanian banana workers filed a complaint in California state court alleging exposure to DBCP (dibromo chloropropane), a pesticide that the U.S. Environmental Agency banned in the United States in 1979. The plaintiffs alleged that the defendants, including Dow Chemical Co., continued using this pesticide in Panamanian plantations. As a consequence of exposure to DBCP, the plaintiffs alleged they suffered from sterility and other injuries, and sought unspecified special, general, and punitive damages, pre- and post-judgment interest and attorney fees. Abrego was not filed as a state class action. However, it was filed after CAFA’s enactment in February 2005. On May 13, 2005, Dow Chemical filed for removal in the U.S. District Court for the Central District of California, invoking CAFA’s mass action provisions at 28 U.S.C. 1332(d)(11). CAFA specifies that a mass action will be deemed to be a class action removable under � 1332(d)(2)-(10) if it otherwise meets the provisions of those paragraphs, which includes the requirement that the aggregate amount-in-controversy exceed $5 million. The district court ordered Dow Chemical to show cause whether the amount-in-controversy did not exceed $5 million and/or $75,000 for each plaintiff. Dow responded that it should be permitted limited discovery related to the amount-in-controversy, and that CAFA shifted the burden of establishing jurisdiction to the plaintiffs opposing removal. Concerning the mass action issue, Dow argued that if an action, prior to removal, involves the claims of more than 100 plaintiffs and more than $5 million in aggregate damages, CAFA’s mass action provisions provides for removal. In addition, Dow argued that CAFA permitted remand only for those plaintiffs’ claims that did not meet the $75,000 jurisdictional amount. In October 2005, the district court held that Dow had failed to meet its burden in showing that the action constituted a mass action as defined by CAFA, and determined that the federal court therefore lacked jurisdiction. The court remanded the case back to state court, and Dow appealed. The 9th Circuit did not decide the central issue presented by Abrego: whether the Abrego facts constituted a mass action subject to CAFA removal. Abrego, 2006 U.S. App. Lexis 8007, 17 (April 6, 2006). Instead, consistent with many other federal jurisdictions, the 9th Circuit held that CAFA did not shift the burden of establishing removal jurisdiction to the plaintiffs opposing the removal. Abrego, 2006 U.S. App. Lexis 8007, 23-27, relying on and joining the 7th Circuit in Brill v. Countrywide Home Loans, 427 F.3d 446, 448 (7th Cir. 2005). In addition, the 9th Circuit rejected Dow’s argument that remand was improper without limited jurisdictional discovery, as contemplated by CAFA’s legislative history and well-settled 9th Circuit law. Abrego, 2006 U.S. App. Lexis 8007, 40-47. Finding these two issues dispositive, the court held that it need not endorse any particular construction of mass actions under � 1332(d)(11). Abrego, 2006 U.S. App. Lexis 8007, 27. “We conclude that under any formulation of the bewildering language of � 1332(d) (11)(B)(i), remand was proper because Dow has failed to meet its burden to establish jurisdiction over even one plaintiff.” Id. Although the 9th Circuit held that Dow failed to meet its CAFA removal burden, the court nonetheless took the opportunity to discuss, at great length, CAFA’s mass action provisions. Like a shot across the bow, the 9th Circuit’s lengthy mass action dicta does not bode well for future attempted mass action removals. The 9th Circuit has found CAFA’s mass action provisions nothing short of bewildering and utterly confusing. Abrego, 2006 U.S. App. Lexis 8007, 27. The court first noted that the wording of � 1332(d)(11)(A), which mandates that mass actions shall be deemed to be a class action removable subject to paragraphs (2) through (10) “if it otherwise meets the provisions of those paragraphs.” “The wording of this subsection,” the court suggested, “is clumsy.” Abrego, 2006 U.S. App. Lexis 8007, 12. In addition, even though a mass action must satisfy the provisions in � 1332(d)(2)-(10), the court noted that some of these provisions “make no sense in the context of a mass action, which is not subject, for example, to class certification.” Abrego, 2006 U.S. App. Lexis 8007, 17 n.6. Further muddying the mass action terrain, the 9th Circuit indicated that mass action mass confusion was enhanced by the CAFA intersecting amount-in-controversy requirements, which relate back to the � 1332(a) $75,000 provision. The court noted that meshing existing jurisdiction and removal statutory provisions with the CAFA mass action amendments “is far from straightforward.” Abrego, 2006 U.S. App. Lexis 8007, 15. Confusion revolves around the definition of a mass action and the relationship of � 1332(a) to that definition. Id. “The statute,” stated the court, “does not explain the relationship between the 100 or more persons and $5,000,000 aggregate amount in controversy requirement on the one hand, and the limitation of jurisdiction to ‘those plaintiffs whose claims in a mass action satisfy [in excess of $75,000] jurisdictional amount requirement,’ on the other.” Abrego, 2006 U.S. App. Lexis 8007, 13. 9th Circuit highlights other mass action mysteries The 9th Circuit further elaborated other deepening CAFA mysteries. Abrego, 2006 U.S. App. Lexis 8007, 15-16. For example, the 9th Circuit suggested that CAFA’s text does not answer the important threshold question concerning when federal courts have original jurisdiction over mass actions, because Congress did not refer to original jurisdiction in the mass action provision itself, or the CAFA removal provision. See 28 U.S.C. 1453. “This gap,” declared the court, “casts into doubt the interaction between the mass action provision and a host of other statutes that assume original jurisdiction as a starting point.” Abrego, 2006 U.S. App. Lexis 8007, 16. The 9th Circuit also identified another problematic controversy certain to bedevil other federal courts. If a mass action is removed that includes more than 100 plaintiffs with an aggregate of in excess of $5 million in controversy, what should a federal court do as to plaintiffs whose individual claims are less than $75,000? Dow argued that the federal court could retain removal jurisdiction over the existing mass action pursuant to CAFA, but remand individual claims falling below the $75,000 amount-in-controversy. The plaintiffs, on the other hand, argued that CAFA mass action provisions depend on establishing � 1332 (a) jurisdiction over each plaintiff’s claims, as well as on meeting the CAFA mass action requirements over whom there is original jurisdiction. They argued that Dow’s interpretation, “could leave in federal court an action with very few plaintiffs, while remanding the ‘mass’ part of the mass action.” Abrego, 2006 U.S. App. Lexis 8007, 33. Having described this problem at excruciating length, the 9th Circuit again declined to answer the question itself had posed. The court held that resolving the two conflicting positions was not necessary to deciding the case. Linda S. Mullenix holds the Morris & Rita Atlas Chair in Advocacy at the University of Texas School of Law. She can be reached at [email protected].

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