On August 6, 2015, in Briggs v. Merck Sharp & Dohme, the US Court of Appeals for the Ninth Circuit held that in a case removed to federal court under CAFA, the denial of a motion to remand may be appealed within ten days of the denial of a timely motion for reconsideration (No. 15-55873, (9th Cir. Aug, 6, 2015)).

Five different groups of plaintiffs filed five distinct actions against the defendant in the Superior Court for the County of San Diego, alleging injuries resulting from the use of drugs developed by the defendant. The Superior Court for the County of Los Angeles was overseeing a coordinated state proceeding under California's Code of Civil Procedure involving similar claims related to the same type of drugs. The defendant filed notices of removal in the five San Diego actions, arguing that they were removable under CAFA's "mass action" provision because the plaintiffs' counsel had expressed their intention that the cases be tried jointly with the claims in the coordinated state proceedings in Los Angeles. The plaintiffs moved to remand the cases to state court, and the district court denied their motion. Ten days later, the plaintiffs moved for reconsideration, and the district court again denied their motion. The plaintiffs filed this appeal within ten days of the denial of their motions for reconsideration.

In CAFA cases, a party can appeal from an order granting or denying a motion to remand a class action to state court if the application is made to the appropriate Circuit Court of Appeals not more than "10 days after entry of the order" (28 U.S.C. § 1453(c)(1)). The Ninth Circuit rejected the defendant's argument that the word "order" in the statute refers only to a district court's initial remand order and held that if a motion for reconsideration is timely filed, the time to seek permission to file an appeal runs from the later of the date of:

The court explained that there is a well-established general rule that the time period to file an appeal runs from the denial of a timely motion for reconsideration and that there was no reason to depart from this rule in CAFA cases. Moreover, allowing a motion for reconsideration prior to an appeal aids the appellate court in deciding the appeal efficiently, by offering the district court a chance to clarify the basis for its decision.

The Ninth Circuit further held that because none of the plaintiffs proposed that their claims be tried jointly with the coordinated state proceeding, their actions were not removable under CAFA's "mass action" provision. The court noted that a proposal must be a "voluntary and affirmative act," and more than "a mere suggestion." Additionally, a request for a joint trial must be made to a court that can effect the proposed relief in order to qualify as a proposal. None of the statements or actions made by the plaintiffs qualified as a proposal to try their claims jointly with the coordinated state proceeding. Therefore, the Ninth Circuit reversed the district court's ruling and remanded the cases to the district court with directions to remand the five actions to state court.