Ninth Circuit Allows Banana Workers To Game CAFA To Stay in State Court
Previously, I had posted about how Dow Chemical was being sued by the same lawyers in waves of suits with roughly 99 plaintiffs so as to avoid the 100-person mass-action removal threshold under CAFA.
On Friday, the Ninth Circuit Court of Appeals refused to assist Dow, allowing these alphabetically-grouped clumps of just-under-100-plaintiffs to maintain their suits in state court. See Tanoh v. Dow Chemical Co., No. 09-55138 (9th Cir. Mar. 27, 2009).
The court rejected as inapposite two recent decisions that refused to allow plaintiffs to arbitrarily split their claims into separate timeframes to come in under CAFA's $5 million jurisdictional threshold. See Freeman v. Blue Ridge Paper Prods., Inc., 551 F.3d 405 (6th Cir. 2008); Proffitt v. Abbott Labs., 2008 WL 4401367 (E.D. Tenn. Sept. 23, 2008).
The Tanoh decision can be the justification for lots of jurisdictional gamesmanship in the Ninth Circuit. At least the court left open the possibility of removal if any of the cases are consolidated by the state court for trial.
