In April, the Ninth Circuit ruled in Dunson v. Cordis Corp. that a defendant is not entitled to remove cases to federal court based on the Class Action Fairness Act of 2005 (CAFA) when plaintiffs consolidate lawsuits with identical claims "for purposes of pretrial discovery and proceedings, along with the formation of a bellwether-trial process."
The decision hinged on the fact that although CAFA permits removal when "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," proposing a bellwether trial system is not necessarily equivalent to trying each plaintiff's case jointly. The defendant argued that the plaintiffs' statement that they intended to create a "bellwether-trial process" meant the plaintiffs intended their claims to be tried together. The Ninth Circuit relied on statements by the plaintiffs that they were seeking consolidation merely to enable a single judge to oversee common discovery and pretrial proceedings as a means of ensuring that each plaintiff received similar treatment, not to conduct a single trial for all plaintiffs' claims.
The Ninth Circuit differentiated between binding bellwether trials, which bind all plaintiffs on issues they have in common with the bellwether trial, and non-binding bellwether trials, which have no legal effect on other plaintiffs' cases and are only used to inform parties of their chances of success and to promote settlement. Because the Ninth Circuit determined the bellwether trials proposed by the plaintiffs were non-binding, the defendant was unable to prove that the plaintiffs had asked to hold a joint trial of their claims, and therefore could not remove the cases to federal court under CAFA.
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