Monthly Archives November 2013

Last week, the Eighth Circuit published its decision in Atwell v. Boston Scientific Corp., Nos. 13-8031, 13-8032, 13-8033, 2013 WL 6050762 (8th Cir. Nov. 18, 2013), where it held that three multiple-plaintiff actions alleging injury from transvaginal mesh collectively constituted a "mass action" under CAFA (the Class Action Fairness Act of 2005). Because of our firm's involvement in the case, we are going to direct you to the fine synopsis put together by the Drug & Device Law Blog.  Another comprehensive summary was published by Law360. We would also like to thank everyone who has read the blog during our first year of publication.  Have a great Thanksgiving!

In the notice of removal, apparently, because it may be too late if you simply plead satisfaction of the amount in controversy and wait until the amount is challenged to prove the underlying calculations.  In Dart Cherokee Basin Operating Co., LLC v. Owens, 730 F.3d 1234 (10th Cir,. September 17, 2013), Judge Hartz, joined by Judges Kelly, Tymkovich and Phillips, dissented from the Court's denial of en banc review of this issue by an equally divided vote.    In this case, the Petitioner/Defendant had removed the case pursuant to CAFA, and pleaded facts supporting satisfaction of the $5 million amount in controversy, but had waited until the Respondent/Plaintiff challenged the notice of removal to submit a declaration setting forth a calculation of potential liability.  The District Court remanded the case, holding that the declaration was untimely. Judge Hartz would have granted review, and argued that the Tenth Circuit owed a duty…