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Today on the WLF Legal Pulse Blog

Ninth Circuit Panel Eviscerates 2014 ‘En Banc’ Decision That Protects CAFA Removal Rights

Congress adopted the Class Action Fairness Act (CAFA) in 2005 in response to concerns that plaintiffs’ lawyers were gaming the system to prevent removal of class actions and “mass actions” (lawsuits with more than 100 named plaintiffs) from state court to federal court. CAFA provided state-court defendants the option of removing a case to federal court when the suit is both substantial and involves numerous plaintiffs, even when complete diversity of citizenship is lacking.

Immediately thereafter, the plaintiffs’ bar began to undermine CAFA by coming up with new ways to keep their mass lawsuits in state courts. Among other schemes, plaintiffs’ lawyers divided their clients (often numbering in the thousands) among multiple lawsuits in the same state court, thereby ensuring that CAFA’s 100-plaintiff threshold would not be surpassed in any one lawsuit. An excellent 2014 en banc decision from the U.S. Court of Appeals for the Ninth Circuit imposed strict limits on use of this removal-defeating tactic. The court held in Corber v. Xanodyne Pharmaceuticals, Inc. that if, after filing their separate lawsuits, the plaintiffs ask the state court to coordinate the cases for all purposes, the cases should be deemed unified and thus removable under CAFA’s mass-action provision. But a Ninth Circuit panel decision this month, Briggs v. Merck Sharp & Dohme, creates a roadmap that allows plaintiffs to coordinate their lawsuits yet avoid removal—thereby eviscerating Corber. The decision suggests that the panel (Judges Fletcher, Berzon, and Paez) feels free to thumb their collective nose at Ninth Circuit en banc decisions; it ought to be reversed. Continue reading →

In re Loestrin 24 FE Antitrust Litigation
On August 27, 2015, WLF filed a brief in the U.S. Court of Appeals for the First Circuit, urging it to reject efforts by the FTC to apply exacting antitrust scrutiny to virtually any agreement between a brand-name drug company and a generic company...
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FTC v. Wyndham Hotels & Resorts, LLC
On August 24, 2015, the U.S. Court of Appeals for the Third Circuit upheld a district court decision allowing the FTC’s data breach lawsuit against Wyndham Hotels & Resorts to go forward. The unanimous appeals court panel held that (1) FTC has...
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Tyson Foods, Inc. v. Bouaphakeo
On August 14, 2015, WLF filed a brief in the U.S. Supreme Court, urging it to overturn an appeals court decision that authorized plaintiffs’ attorneys to conduct a class-wide “trial by formula”—that is, a class-action trial at which the defendant...
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Amarin Pharma, Inc. v. FDA
On August 7, 2015, the U.S. District Court for the Southern District of New York preliminarily enjoined the Food and Drug Administration’s efforts to prevent a drug manufacturer from providing doctors with truthful information about one of its...
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United States Telecom Association v. FCC
On August 6, 2015, former FCC Commissioner Harold Furchtgott-Roth joined WLF in asking the U.S. Court of Appeals for the D.C. Circuit to vacate an order by the FCC that would enable the agency to wield virtually unlimited power to regulate the...
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Two Cheers for Trinity Wall Street v. Wal-Mart : The Awkward New Test for Ordinary Business Exclusion
By Stephen M. Bainbridge, William D. Warren Distinguished Professor of Law at the University of California at Los Angeles.
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CBS Corp. v. FCC: Business Confidentiality Trumps Broader Agency Disclosure at D.C. Circuit
By Rosemary C. Harold, a Partner with Wilkinson Barker Knauer LLP who previously served as a Legal Advisor to Federal Communications Commissioner Robert McDowell and as Deputy Chief of the FCC’s Media Bureau.
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