January 2011

Seventh Circuit Holds Removal Under Class Action Fairness Act Premature

Holland & Knight Newsletter
Sarah Korapaty

The Seventh Circuit recently rejected an attempt by The Boeing Company (“Boeing”) to invoke the Class Action Fairness Act (CAFA) as a basis to remove to federal court 29 separate state court cases arising from the accident of Turkish Airlines Flight 1951 in the Netherlands in 2009.1 CAFA permits removal of a “mass action,” which is defined as a suit “in which 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.”2

Boeing had filed notices of removal in the 29 Illinois state court cases, which involved 117 individual plaintiffs. Boeing contended that the claims arose under CAFA because the plaintiffs stated in their combined opposition to Boeing’s forum non conveniens motion that liability would be determined in one exemplar trial. Specifically, the plaintiffs stated: “in aviation disaster cases, several exemplar cases are routinely tried on one occasion at which time the issue of liability is determined for the remainder of the cases.” According to Boeing, this language constituted a proposal for a mass action under CAFA. The plaintiffs filed motions to remand in the Northern District of Illinois. In the seven motions decided, remand was granted on the grounds, inter alia, that the plaintiffs’ statement was premature and did not constitute a “proposal” for all cases to be tried jointly.

The Seventh Circuit affirmed the remand orders, determining that “Boeing’s removal of the cases was premature.” The court found that the plaintiffs’ statement fell “just short of a proposal, as it is rather a prediction of what might happen if the judge decided to hold a mass trial.” The court further noted that “[i]t would be odd to think that plaintiffs could not make a telling response to a motion for dismissal of a suit on the ground of forum non conveniens without thereby having forfeited their chosen forum; by arguing against dismissal, they would have been arguing for it.” 3

1 Koral v. Boeing Company, -- F.3d --, 2011 WL 9350 (7th Cir. Jan. 4, 2011).

28 U.S.C. § 1332(d)(11)(B)(i).

The Seventh Circuit did not foreclose the possibility that the cases may be subject to removal under CAFA at a later time. In dicta, the court stated that removal may be proper even if a joint trial did not dispose of the plaintiffs’ claims for damages.

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