Fordham Law Review Volume 78 Issue 4 Article 6 2010 The CAFA Mass Action Numerosity Requirement: Three Problems with Counting to 100 Guyon Knight Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Guyon Knight, The CAFA Mass Action Numerosity Requirement: Three Problems with Counting to 100, 78 Fordham L. Rev. 1875 (2010). Available at: https://ir.lawnet.fordham.edu/flr/vol78/iss4/6 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The CAFA Mass Action Numerosity Requirement: Three Problems with Counting to 100 Cover Page Footnote J.D. Candidate, 2011, Fordham University School of Law. My thanks to Professors Howard M. Erichson and Michael M. Martin for their invaluable guidance. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol78/iss4/6 THE CAFA MASS ACTION NUMEROSITY REQUIREMENT: THREE PROBLEMS WITH COUNTING TO 100 Guyon Knight* This Note examines the mass action provision of the Class Action Fairness Act of 2005 (CAFA) and the difficulties courts have encountered when applying its seemingly simple 100-person numerosity requirement. "Mass actions" are a broad category of nonclass aggregate litigation over which CAFA extended federal jurisdiction. This Note examines three interpretations of the numerosity requirement advanced in recent cases. These interpretations have advocated, in turn, not finding a mass action when a case has more than 100 formally joined plaintiffs, recognizing the existence of a single mass action broken up among parallelsuits with fewer than 100 plaintiffs, andfinding a mass action in cases with only a single, representationalplaintiff. These arguments concerning the meaning of the mass action numerosity requirement stem from the confluence of three factors: Congress's intent for courts to interpret CAFA broadly, the similarities between class actions and nonclass aggregate litigation, and ambiguities in the mass action statute. Although no perfect reading of the statute is possible, this Note suggests that courts strictly interpret the statute going forward, only counting formal parties to a single action in order to determine if CAFA 's numerosity threshold has been achieved. TABLE OF CONTENTS IN TRODU CTION ........................................................................................ 1876 I. AGGREGATE LITIGATION, CAFA, AND MASS ACTIONS ..................... 1878 A. Aggregate Litigation: An Overview ...................................... 1879 B. The Class Action FairnessAct of 2005 .................................. 1884 C. CAFA M ass Actions ................................................................ 1887 1. Mass Actions: The Plain Language ................................ 1887 2. Mass Actions: The Legislative History ........................... 1888 3. Mass Actions: The Statutory Ambiguities ...................... 1892 II. THREE WAYS TO COUNT TO 100: NUMEROSITY WITH MORE THAN 100 PARTIES, FEWER THAN 100 PARTIES, AND WITH A SINGLE P A R TY ...........................................................................................1895 * J.D. Candidate, 2011, Fordham University School of Law. My thanks to Professors Howard M. Erichson and Michael M. Martin for their invaluable guidance. 1875 1876 FORDHAMLAWREVIEW [Vol. 78 A. Mass Actions with More than 100 Parties............................. 1896 1. Bullard v. Burlington Northern Santa Fe Railway Co..... 1896 2. Cooper v. R.J. Reynolds Tobacco Co............................... 1897 B. Mass Actions with Fewer than 100 Parties............................ 1900 1. Tanoh v. Dow Chemical Co .............................................1900 2. Brown v. Bayer Corp. and Mobley v. Cerro Flow P roducts, Inc................................................................... 1906 C. M ass Actions with One Party .................................................1908 1. Louisiana ex rel. Caldwell v. Allstate Insurance Co........ 1908 2. After Caldwell: Adoption and Dissent ............................1914 D. Three Ways To Count to 100 ..................................................1919 III. COUNTING TO 100: A LIMITED READING OF THE MASS ACTION PROV ISION ....................................................................................1920 A . "Claims of ...persons .........................................................1922 1. Cases Examining "Claims of ...persons": Caldwell, Kitazato, Anwar,and CalPERS .......................................1922 2. "Claims of... persons" Should Be Limited to Parties ....1924 B. "Proposedto be tried jointly"................................................ 1925 1. Cases Examining "Proposed to be tried jointly": Bullard, Cooper, and Tanoh............................................ 1925 2. "Proposed to be tried jointly" Should Be a Limited Inquiry .............................................................................1927 C ON CLU SION ...........................................................................................1929 INTRODUCTION Counting to 100 should be simple. However, in the context of the Class Action Fairness Act of 2005 (CAFA, or the Act)1 and "mass actions" this exercise is considerably more complicated. This Note examines the sources of the difficulty in assessing the numerosity requirement of CAFA mass actions, and cases where courts have wrestled with the meaning of the number 100. As opposed to CAFA's main concern-class actions-mass actions are nonclass aggregate litigation. CAFA defines mass actions, in brief, as "any civil action ... 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 CAFA did not invent this breed of nonclass aggregation, but it formally recognized it and extended federal jurisdiction over these cases.3 CAFA's mass action provision was born from the realization that, despite their formal differences, nonclass aggregate litigation can resemble "class 1. Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). 2. 28 U.S.C. § 1332(d)(1 1)(B)(i) (2006). 3. See infra Part I.A. 2010] THREE PROBLEMS WITH COUNTING TO 100 1877 actions in disguise." 4 Thus, according to Congress, the evils inherent in class actions that CAFA hoped to eliminate were equally present in mass actions. 5 In both, plaintiffs' lawyers could game the procedural system to the detriment of their client and, most importantly for Congress, defendants. 6 Congress's prescription for mass actions was the same that they applied to class actions: a broad grant of federal jurisdiction over this breed of nonclass aggregate litigation. 7 Furthermore, Congress intended 8 courts to interpret its grant of federal jurisdiction as broadly as possible. While Congress made its intentions clear, the mass action statute is not. The confluence of Congress's broad intent, the similarities between class and nonclass aggregate litigation, and the statute's ambiguous language make even the seemingly simple task of counting to 100 a subject of considerable conflict. That conflict centers upon two specific ambiguous phrases in the mass action statute: "claims of ...persons" and "proposed to be tried jointly." 9 Part I of this Note outlines these sources of difficulties in applying the mass action's numerosity requirement. In Part II, this Note examines three lines of cases that have attempted to apply CAFA's ambiguous language. In the cases of Bullard v. Burlington Northern Santa Fe Railway Co. 10 and Cooper v. R.J. Reynolds Tobacco Co.,I I courts rejected the argument that formally joining more than 100 parties to a complaint does not satisfy the mass action's "proposed to be tried jointly" requirement. This Note argues in Part III that the courts in these cases were correct to dismiss this argument. However, even the relatively clear application of the statute in these cases can lead to bizarre results. In Cooper, the defendant's litigation strategy could have potentially resulted in a mass action made up of individual trials for more than 100 plaintiffs. By contrast, in Tanoh v. Dow Chemical Co., 12 plaintiffs advanced the argument that joining ninety-nine plaintiffs in parallel actions did not trigger the "proposed to be tried jointly" requirement, despite the fact that, considered as a single case, the claims would clearly constitute a mass action. This Note argues that the U.S. Court of Appeals for the Ninth Circuit correctly ruled in the plaintiffs' favor in Tanoh. However, a strict reading of CAFA's language in that case left cases of "national importance" in state court, contrary to Congress's intent. 13 4. S. REP. No. 109-14, at 47 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 44; see also infra note 85 and accompanying text. 5. See infra Part I.C.2. 6. See infra notes 47-53, 85-87 and accompanying text. 7. See infra Part I.B, C.1. 8. See infra Part I.B, C.2. 9. 28 U.S.C. § 1332(d)(1 1)(B)(i) (2006). 10. 535 F.3d 759 (7th Cir. 2008); see also infra Part II.A.1. 11. 586 F. Supp. 2d 1312 (M.D. Fla. 2008); see also infra Part II.A.2. 12. 561 F.3d 945 (9th Cir.), cert. denied, 130 S.Ct. 187 (2009); see also infra Part 11.13. 13. Class Action Fairness Act of 2005, Pub. L. No. 109-2, § 2(b)(2), 119 Stat.