## Facts

- Numerous plaintiffs alleged injuries or death from Trasylol, a prescription drug manufactured by Bayer, administered during heart surgery.
- Plaintiffs’ counsel filed multiple, largely identical product-liability complaints in Illinois state court.
- The filings were divided into separate actions; four actions each named fewer than 100 plaintiffs, and one action (*Gilmore*) named 100 plaintiffs.
- After an initial removal attempt and remand, plaintiffs amended the pleadings by adding plaintiffs to existing suits and filed an additional small complaint (*Anderson*) with three plaintiffs.
- Bayer removed all five actions again, asserting federal jurisdiction under CAFA’s “mass action” provision, arguing the suits were effectively one combined litigation exceeding 100 plaintiffs.
- The district court kept only *Gilmore* in federal court and remanded the four sub-100-plaintiff actions to state court.
- Bayer petitioned for leave to appeal the remand orders under CAFA’s discretionary appellate-review provision, also arguing that non-diverse plaintiffs were fraudulently misjoined and should be severed to create diversity jurisdiction.

## Issues

1. Whether CAFA permits a defendant to treat multiple separately filed state-court actions as a single “mass action” to satisfy CAFA’s 100-plaintiff threshold for removal.
2. Whether, after rejecting mass-action jurisdiction, the court of appeals had jurisdiction under CAFA to reach Bayer’s fraudulent-misjoinder theory as a basis for diversity jurisdiction.

## Decision

- The Seventh Circuit denied Bayer’s petition for leave to appeal.
- CAFA mass-action jurisdiction turns on the number of plaintiffs in the individual “civil action” as filed; separate actions may not be aggregated by the defendant to reach 100 plaintiffs.
- Because the sub-100-plaintiff cases were not “mass actions,” the court lacked CAFA appellate jurisdiction to review the remand orders on alternative theories, including fraudulent misjoinder.

## Legal Principles

- Under CAFA, “mass action” status is assessed case-by-case based on whether the particular civil action includes claims of at least 100 persons proposed to be tried jointly.
- Similarity among multiple separate suits does not authorize treating them as one civil action for CAFA mass-action removal.
- Plaintiffs may structure filings into separate sub-100-plaintiff actions to remain outside CAFA’s mass-action provision, absent statutory authorization to combine them.
- CAFA’s special appellate-review mechanism for remand orders is limited to qualifying class actions or mass actions; if the case is not within CAFA’s scope, appellate jurisdiction under that mechanism does not extend to other removal theories.

## Conclusion

The Seventh Circuit held that CAFA does not allow aggregation of multiple separately filed, sub-100-plaintiff actions into a single “mass action” for removal, and it therefore lacked CAFA appellate jurisdiction to review remand orders based on fraudulent-misjoinder arguments once mass-action status failed.


Anderson v. Bayer Corp., 610 F.3d 390 (7th Cir. 2010)