Plaintiffs did not “propose a joint trial” of eight separate suits, each with less than 100, but cumulatively with more than the 100 plaintiff threshold needed for removal as a “mass action” under CAFA. Merely moving to consolidate the eight suits for pre-trial purposes is not sufficient to make them a removable mass action. Nor is it enough to move for their consolidation for purposes of a bell-weather trial mechanism unless the plaintiffs show they mean a bell-weather trial that will make factual or legal determinations that are binding on the other suits that are consolidated. Otherwise, it is presumed that plaintiffs mean the type of bell-weather trial in which the results are merely informational and help the parties reach settlements of the other suits. Here, plaintiffs did not sufficiently indicate that they meant the binding type of bell-weather trial to allow removal under CAFA.
Ninth Circuit Court of Appeals (Watford, J.); April 14, 2017; 2017 WL 1364987