In Warren Lester, et al. v. Exxon Mobil Corp., et al., No. 14-31383, ___ F.3d ___ (5th Cir. 1/9/2018), the U.S. Fifth Circuit Court of Appeals issued an opinion addressing two issues of first impression involving the Class Action Fairness Act of 2005 (“CAFA”).[1] A full copy of the opinion can be accessed here.

Factual Background

The Lester suit was originally filed in 2002 in state court[2] on behalf of over 600 plaintiffs, one of whom was Mr. Cornelius Bottley, for exposure to naturally occurring radioactive materials “NORM” while working at various pipe yards. Bottley died in 2012, and thereafter his three heirs filed their own separate wrongful death action in state court.[3] In 2014, the Bottley heirs (represented by the same counsel as Lester) filed a motion to consolidate the Bottley action with Lester. Shortly after the consolidation motion was granted, Mobil Oil (who was a named defendant in Bottley, not Lester) removed both cases under CAFA, arguing that the consolidation of Bottley and Lester constituted a newly commenced “mass action.”

Issue 1: Whether a motion to consolidate and transfer related state court suits effectuates a “mass action” removable under CAFA.

Answer: Yes.

CAFA authorizes the removal of “mass actions” defined 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.”[4] Plaintiffs argued that the Bottley consolidation motion did not give rise to a “mass action” because Lester had previously been tried in small “flights” of plaintiffs with common exposure locations, and the Bottley consolidation motion was only intended to propose a joint trial flight for the pipe yard where Mr. Bottley worked. The Fifth Circuit, however, found that the consolidation motion proposed that the Bottley plaintiffs would consolidate their case with the entire Lester case, not with a limited number of claims or “flights” of plaintiffs that were part of Lester. The Court therefore held that the Bottley consolidation motion proposed a joint trial of 100 or more plaintiffs’ claims, which constitutes a mass action under CAFA. As such, Lester and Bottley were properly removed to federal court under CAFA.

Issue 2: If a motion to consolidate and transfer related state court suits effectuates a “mass action” removable under CAFA, whether CAFA may be invoked as a basis for removal when one of the underlying suits comprising the purported mass action commenced prior to CAFA’s 2005 effective date.

Answer: Yes.

CAFA has a non-retroactivity provision that expressly provides “[t]he amendments made by this Act apply to any civil action commenced on or after the date of enactment of this Act,” which was February 18, 2005.[5] “[CAFA] does not apply retroactively.”[6] Plaintiffs argued that CAFA could not apply to Bottley and Lester since Lester was filed in 2002 before CAFA came into effect, and Bottley is only a “mass action” when paired with the large number of claimants in Lester. The Fifth Circuit majority rejected plaintiffs’ argument, holding that when plaintiffs proposed that Bottley be consolidated with Lester (and thus proposed the claims be jointly tried with those in Lester), Bottley became a mass action subject to CAFA’s provisions, including the removal provisions. Lester alone could not be removed. However, the Court emphasized Congress’s intent for CAFA to apply to “any civil action commenced” after CAFA’s effective date—in this case, Bottley is that civil action.  Because the Bottley claims are component parts of a mass action removable under CAFA and the Bottley suit was commenced after CAFA’s enactment date, defendants were permitted to remove the mass action as a whole.

This decision provides a long-awaited interpretation as to the commencement of a mass action for purposes of removability under CAFA, and shows that courts are willing to apply CAFA broadly. Here, hundreds of Lester actions that commenced before CAFA’s enactment were entitled to removability under CAFA when three post-CAFA plaintiffs proposed that their claims be consolidated and tried jointly with those in Lester, at which time the Court interpreted the suit to become a “mass action” subject to removability under CAFA.

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[1]              Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.). A link to the Act can be accessed here:

[2]              Warren Lester, et al. v. Exxon Mobil Corp., et al., Civil District Court for the Parish of Orleans, State of Louisiana, Case No. 2002-19657, Div. #N-8.

[3]              Shirley Bottley, et al. v. Exxon Mobil Corp., et al., Civil District Court for the Parish of Orleans, State of Louisiana, Case No. 13-6222, Div. F.

[4]              28 U.S.C. § 1332(d)(11)(B)(i).

[5]              Pub. L. No. 109-2, 119 Stat. 4, 14 (2005).

[6]              Admiral Ins. Co. v. Abshire, 574 F.3d 267, 273 (5th Cir. 2009).

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