Remove ‘Em If You Got ‘Em – Severance Of 3,400 Trials Is Not Dangerous To The Health of CAFA Removal of Tobacco Mass Actions.

Anthony L. Cooper, et al., v. R.J. Reynolds Tobacco Co., etc., et al., No. 3:08-cv-153, 586 F. Supp. 2d 1312 (M.D. Fla. Aug. 29, 2008)

Studies conducted by some very smart scientists probably suggest that your lungs can almost fully recover within fifteen years of quitting smoking. In about as much time, a tobacco class action suit wound its way through Florida’s state courts until the Supreme Court of Florida decertified the 700,000-member plaintiff class. Conveniently, Congress managed to enact CAFA in that time, too. The decertification prompted the filing of suits by 3,400 plaintiffs in groups of about 200.

The defendants removed the cases under CAFA as mass actions, but then moved to sever the claims for trial. Not wanting a change of scenery after fourteen years, the plaintiffs moved to remand, arguing that CAFA jurisdiction would be lost if the claims were not tried in groups of at least 100 as the defendants proposed.

The district court held that the removal was proper and that the defendants’ “remove then sever” strategy did not defeat jurisdiction. The district court was concerned with an ambiguity in CAFA that could result in the anomaly of the court having jurisdiction over 3,400 individual suits that would not be joined for trial, citing a similar concern stated in Lowery v. Alabama Power Co., 483 F.3d 1184, 1203-04 (11th Cir. 2007). (Editors’ Note: See the CAFA Law Blog analysis of Lowery posted on May 15, 2007).

Ultimately, removal under CAFA was proper because at the time of removal the cases were proposed to be tried jointly, regardless of the premeditated intent of the defendants to seek to sever the claims or the actual joinder of claims.

The district court asked the plaintiffs to appeal under CAFA’s appeal provisions, but a panel of the Eleventh Circuit declined to hear it, effectively stating, “If the district court thinks CAFA jurisdiction makes it look cool, it can see how it feels after trying all 3,400 suits in the pack.” Cf. Anthony L. Cooper, et al., v. R.J. Reynolds Tobacco Co., et al., No. 08-90021D (11th Cir. Oct. 28, 2008). Since then, this decision has picked up a favorable footnote citation from the Eleventh Circuit in Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009).