On September 24, 2013, in a case of first impression, the US Court of Appeals for the Ninth Circuit, in Romo v. Teva Pharmaceuticals USA, Inc., issued an order holding that removal was improper because the plaintiffs' petition for coordination under California Code of Civil Procedure section 404 did not constitute a proposal to be tried jointly under the Class Action Fairness Act (CAFA).

The plaintiffs in Romo claimed they suffered injuries related to the ingestion of propoxyphene, an ingredient found in certain pain medications allegedly manufactured by Teva and other pharmaceutical manufacturers. In November 2010, drugs containing propoxyphene were taken off the market because of the Food & Drug Administration's safety concerns. To date, more than forty actions have been filed in California state courts regarding propoxyphene.

A group of attorneys responsible for many of the propoxyphene actions filed a petition under California Code of Civil Procedure section 404 to establish a coordinated proceeding for all California propoxyphene actions. After the plaintiffs filed their petition for coordination, Teva removed the case to federal district court under CAFA's mass action provision, which provides federal district courts with jurisdiction over civil actions in which monetary relief claims of 100 or more persons are proposed to be tried jointly.

The district court remanded the case to state court. It found that there was no federal jurisdiction under CAFA because the plaintiffs' petition for coordination did not constitute a proposal to try the cases jointly. Teva appealed.

The Ninth Circuit agreed with the district court. Noting that removal statutes are strictly construed against removal and that a proposal to try claims jointly must come from the plaintiffs, the Ninth Circuit held that, based on a totality of the circumstances, CAFA's jurisdictional requirements were not met. The court determined that the memorandum submitted by the plaintiffs in support of the petition for coordination clearly focused on pretrial matters, including discovery. Accordingly, the court concluded that the plaintiffs' petition for coordination "stopped far short of proposing a joint trial."

The Ninth Circuit distinguished the Seventh Circuit's opinion in In re Abbott Laboratories, Inc., on the grounds that Abbott involved a different procedure, consolidation, and the plaintiffs' request in Abbott explicitly requested consolidation of the cases through trial and not solely for pretrial proceedings.

Circuit Judge Gould, dissenting, argued that the majority misinterpreted CAFA and created a circuit split with the Seventh Circuit. Judge Gould criticized the majority for downplaying language in the plaintiffs' memorandum in support of their petition for coordination that claimed that coordination was necessary to avoid inconsistent judgments. Judge Gould concluded that the substance of the petition is sufficient to constitute a proposal for joint trial within the meaning of CAFA.

Counsel seeking to remove a case to federal district court under CAFA's mass actions provision should be aware that a motion for coordination in state court may not be sufficient for federal jurisdiction under CAFA unless the motion explicitly requests a joint trial.

Update: On February 10, 2014, the Ninth Circuit ordered that the case be reheard en banc and the underlying decision should not be cited as precedent by or to any court of the Ninth Circuit.