                               In the

United States Court of Appeals
                For the Seventh Circuit

Nos. 12-8020, 12-8021, 12-8022, 12-8023,
     12-8024, 12-8025 & 12-8026

IN RE:

    A BBOTT L ABORATORIES, INC.,
                                                              Petitioner.


                      Petitions for Permission to
           Appeal from the United States District Court
                 for the Southern District of Illinois.
          Nos. 3:12-cv-00052, 3:12-cv-00163, 3:12-cv-00053,
            3:12-cv-00054, 3:12-cv-00055, 3:12-cv-00056,
              3:12-cv-00057—G. Patrick Murphy, Judge.



No. 12-8027

IN RE:

    A BBOTT L ABORATORIES, INC.,
                                                            Respondent.


                       Petition for Permission to
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
              No. 1:12-cv-00385—John W. Darrah, Judge.



     S UBMITTED JUNE 7, 2012—D ECIDED O CTOBER 16, 2012
2                     Nos. 12-8020, 12-8021, 12-8022, 12-8023,
                         12-8024, 12-8025, 12-8026 & 12-8027

    Before K ANNE, W OOD , and T INDER, Circuit Judges.
  T INDER, Circuit Judge. The parties petition us to re-
solve two conflicting district court decisions and decide
whether a motion to consolidate and transfer related
state court cases to one circuit court through trial consti-
tutes a proposal to try the cases jointly, thus trig-
gering the “mass action” provision of the Class Action
Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(11)(B)(i). We
grant the petitions for review in order to resolve
the differing approaches by the two district courts, and
because the petitions present a novel issue, see Koral v.
Boeing Co., 628 F.3d 945, 946 (7th Cir. 2011), where a
decision will be helpful to future litigants. We hold
that plaintiffs’ motion to consolidate did propose
a joint trial, and thus removal was proper.
   Between August 2010 and November 2011 several
hundred plaintiffs filed ten lawsuits in Illinois state
court against Abbott Laboratories for personal injuries
they allege were caused by Depakote, a prescription
medication Abbott developed and markets. 1 Plaintiffs
filed their lawsuits in St. Clair County, Madison County,
and Cook County. In December 2011 plaintiffs moved
the Supreme Court of Illinois to consolidate and
transfer their cases to St. Clair County, pursuant to
Illinois Supreme Court Rule 384. Abbott opposed the
motion, and as of this date, the Supreme Court has not
ruled. Rule 384(a) says:


1
    An eleventh case was filed on February 24, 2012.
Nos. 12-8020, 12-8021, 12-8022, 12-8023,                      3
     12-8024, 12-8025, 12-8026 & 12-8027

    Motion to Consolidate—Transfer. When civil actions
    involving one or more common questions of fact or
    law are pending in different judicial circuits, and the
    supreme court determines that consolidation would
    serve the convenience of the parties and witnesses
    and would promote the just and efficient conduct
    of such actions, the supreme court may, on its own
    motion or on the motion of any party filed with
    the supreme court, transfer all such actions to one
    judicial circuit for consolidated pretrial, trial, or post-
    trial proceedings.
   Plaintiffs asked for consolidation of their lawsuits in
St. Clair County because the cases “present common
questions of fact concerning Abbott’s development,
testing, manufacturing, and marketing of Depakote, as
well as common questions of law regarding Abbott’s
liability for same” and “[c]onsolidation will eliminate
duplicative discovery and pretrial litigation, prevent
inconsistent pretrial and trial rulings, and thereby
promote judicial efficiency.” In the memorandum
in support of their motion, plaintiffs said they were
requesting consolidation of the cases “through trial”
and “not solely for pretrial proceedings.” 2
  Abbott removed each of the cases to federal court,
asserting that the motion to consolidate brought the


2
  Because of this language, plaintiffs’ motion to consolidate is
not governed by 28 U.S.C. § 1332(d)(11)(B)(ii)(IV), which
excludes as mass actions those cases consolidated solely for
pretrial proceedings.
4                  Nos. 12-8020, 12-8021, 12-8022, 12-8023,
                      12-8024, 12-8025, 12-8026 & 12-8027

cases under CAFA’s “mass action” provision, which
allows the removal of any case where 100 or more people
propose to try their claims jointly. The cases filed in St.
Clair County and Madison County were removed to the
Southern District of Illinois and the cases filed in
Cook County were removed to the Northern District
of Illinois; plaintiffs moved to remand in both courts.
   Judge Murphy in the Southern District ruled on plain-
tiffs’ motions to remand first, granting the motions on
April 17, 2012. He held that Abbott’s arguments were
foreclosed by our decision in Anderson v. Bayer, 610 F.3d
390 (7th Cir. 2010), and concluded that the language in
the motion to consolidate did not propose a joint trial.
He said, “it appears that Plaintiffs contemplate consoli-
dated discovery and pretrial proceedings, but not a
joint trial of the hundreds of claims asserted in the ten
subject cases. This is consistent with the Court’s experi-
ence, in which so-called ‘mass tort’ cases are never tried
in their entirety, and instead ‘bellwether’ claims selected
by the parties are tried individually in order to answer
difficult issues of causation or liability common to all
the claims and/or to value the remaining claims in
the case for purposes of settlement.” Judge Darrah dis-
agreed, and on May 9, 2012, denied plaintiffs’ motion to
remand. He said the motion to consolidate “clearly
intends to move the Illinois Supreme Court to con-
solidate the 10 complaints for all purposes, including
(as they specifically indicate) for purposes of conducting
a trial.” Abbott petitioned us to review Judge Murphy’s
decision, and plaintiffs petitioned for review of Judge
Nos. 12-8020, 12-8021, 12-8022, 12-8023,                  5
     12-8024, 12-8025, 12-8026 & 12-8027

Darrah’s decision. The parties now seem to agree that
interlocutory review is warranted but dispute whether
plaintiffs’ cases constitute a mass action.
  Section 1332(d)(11)(B)(i) defines a mass action 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 ques-
tions of law or fact.” Under CAFA, such mass actions
are removable to federal court, so long as CAFA’s other
jurisdictional requirements are met. Id. § 1332(d)(11)(A).
The parties do not dispute that the other requirements
are met in each of the cases.
  Plaintiffs argue that they did not propose a joint trial
because their motion to consolidate did not address
how the trials of the various claims in the cases would
be conducted, other than proposing that they all take
place in the Circuit Court of St. Clair County. Their
motion and memorandum do not propose that one or
more of the cases be tried jointly or that all parties would
be bound by the findings of one trial. Rather, plaintiffs
contend, their motion simply requests that the cases be
coordinated through trial. If the motion is granted
the transferee trial court would decide how to ad-
minister the cases, including how any trial would be
conducted. In plaintiffs’ view, for the mass action
provision to apply they would need to take the further
step of requesting a joint trial or an exemplar trial
that would affect the remaining cases.
  We have addressed CAFA’s mass action provision
several times, but never in the context of a motion to
6                   Nos. 12-8020, 12-8021, 12-8022, 12-8023,
                       12-8024, 12-8025, 12-8026 & 12-8027

consolidate. Judge Murphy concluded that Abbott’s
position was foreclosed by our decision in Anderson, 610
F.3d 390. There, plaintiffs filed five separate but mostly
identical complaints in state court. Bayer argued that
plaintiffs were attempting to circumvent CAFA’s mass
action provision by artificially splitting their claims
into five cases. We looked at CAFA’s statutory language
and held that the complaints did not constitute a
mass action because plaintiffs never proposed to try
their claims jointly. Id. at 393; see Tahoh v. Dow Chem. Co.,
561 F.3d 945, 953 (9th Cir. 2009) (reaching similar conclu-
sion). As long as plaintiffs had not proposed a joint
trial, “[t]he mass action provision gives plaintiffs the
choice to file separate actions that do not qualify for
CAFA jurisdiction.” Anderson, 610 F.3d at 393. Under the
reasoning of Anderson, plaintiffs were not in danger of
having their cases removed when they filed eleven
similar complaints in state court. But when they moved
the Supreme Court of Illinois to consolidate their cases
through trial—reasonably construed by Abbott as a
proposal for a joint trial—Anderson no longer controlled.
  Plaintiffs argue that they never specifically asked for
a joint trial, but a proposal for a joint trial can be im-
plicit. In Bullard v. Burlington Northern Santa Fe Railway
Co., 535 F.3d 759 (7th Cir. 2008), plaintiffs filed a com-
plaint identifying 144 plaintiffs, but argued that be-
cause the complaint did not propose a joint trial, the
suit was not a mass action. Id. at 761. We held that
one complaint implicitly proposes one trial and thus
the suit was a mass action. Id. at 762.
Nos. 12-8020, 12-8021, 12-8022, 12-8023,                       7
     12-8024, 12-8025, 12-8026 & 12-8027

   And in Koral v. Boeing, Co., 628 F.3d 945, 947 (7th Cir.
2011), we examined whether a statement in response to
a motion to dismiss could be considered a proposal for
a joint trial. Boeing moved to dismiss plaintiffs’ 29
lawsuits based on forum non conveniens, arguing that it
would be inconvenient for its employees in Washington
to travel to Illinois to testify in 29 trials. Id. at 946. Plain-
tiffs’ attorney responded that there likely would be
only one exemplar trial to determine liability. Boeing
then removed the cases to federal court, arguing that
counsel’s statement was a proposal to try the cases
jointly. We disagreed and said, “We think the plaintiff’s
statement falls just short of a proposal, as it is rather
a prediction of what might happen if the judge decided
to hold a mass trial.” Id. at 947.
  Although we held in Koral that plaintiffs did not
propose a joint trial, we reiterated that a proposal for
a joint trial can be implicit, particularly where “the as-
sumption would be that a single trial was intended.” Id.
at 947. We added that a joint trial does not have to en-
compass relief. For example, a trial on liability could be
limited to a few plaintiffs, after which a separate trial
on damages could be held. Id. Similarly, we have said
that a trial that involved only “10 exemplary plaintiffs,
followed by application of issue or claim preclusion to
134 more plaintiffs without another trial, is one in
which the claims of 100 or more persons are being tried
jointly.” Bullard, 535 F.3d at 762. In short, a joint trial can
take different forms as long as the plaintiffs’ claims
are being determined jointly.
8                  Nos. 12-8020, 12-8021, 12-8022, 12-8023,
                      12-8024, 12-8025, 12-8026 & 12-8027

  Plaintiffs may not have explicitly asked that their
claims be tried jointly, but the language in their motion
comes very close. As noted above, plaintiffs requested
consolidation of their cases “through trial” and “not
solely for pretrial proceedings.” They further asserted
that consolidation through trial “would also facilitate
the efficient disposition of a number of universal and
fundamental substantive questions applicable to all or
most Plaintiffs’ cases without the risk of inconsistent ad-
judication in those issues between various courts” (empha-
sis added). We agree with Abbott that it is difficult to
see how a trial court could consolidate the cases as re-
quested by plaintiffs and not hold a joint trial or an ex-
emplar trial with the legal issues applied to the
remaining cases. In either situation, plaintiffs’ claims
would be tried jointly. Although plaintiffs assert that the
transferee court will decide how their cases proceed
to trial, “[i]t does not matter whether a trial covering
100 or more plaintiffs actually ensues; the statutory
question is whether one has been proposed.” Bullard, 535
F.3d at 762.
  Plaintiffs further argue that even if their motion to
consolidate was a proposal for a joint trial, removal was
improper because their motion was not filed in the
right court. They point out that in Koral we said a
proposal for a joint trial “must be to the court in which
the suits are pending.” 628 F.3d at 947. They argue
that because their motion for consolidation was filed in
the Supreme Court of Illinois and not in any circuit
court in which their cases were pending, removal as a
Nos. 12-8020, 12-8021, 12-8022, 12-8023,                   9
     12-8024, 12-8025, 12-8026 & 12-8027

mass action was improper. Section 1332(d)(11)(B)(i)
does not say where a proposal for a joint trial must be
made, but a reasonable conclusion is that it must be
made to a court that can effect the proposed relief. In
Bullard, for example, the statement made by plaintiffs’
attorney was made to the right court because it was
made in the complaint to the court where the cases were
pending. 535 F.3d at 761. Here, plaintiffs filed their
motion to consolidate with the Supreme Court of Illinois,
which has the power not only to consolidate plaintiffs’
cases through trial but also to decide where plaintiffs’
cases will ultimately be. See Ill. Sup. Ct. R. 384(a). In all
likelihood, the Supreme Court would transfer these
actions back to one of the judicial circuits in which the
suits are currently pending. As a result, plaintiffs’ motion
to consolidate was sufficient to create a mass action.
  We R EVERSE Judge Murphy’s order granting plaintiffs’
motions to remand and A FFIRM Judge Darrah’s order
denying plaintiffs’ motion to remand.




                           10-16-12
