In re Abbott Laboratories Preterm Infant Nutrition Products Liability Litigation

The Seventh Circuit considered an appeal of five cases making up a subsection of similar cases in a multidistrict litigation case filed against the manufacturer of an infant formula. The appellate court considered two questions certified by the district court: whether a plaintiff’s failure to demonstrate real or good faith intent to pursue a claim against a non-diverse defendant is a basis for finding that the non-diverse defendant was fraudulently joined and, if so, whether a plaintiff’s failure to engage in litigation against the non-diverse defendant and a verbal representation that they will not seek an appeal of a dismissal of their action against a non-diverse defendant meets the standard for finding ‘no real intent’ fraudulent joinder. The Seventh Circuit concluded that the district court took a view of the fraudulent joinder doctrine that was not consistent with existing case law and that the district court’s conclusion that the plaintiffs had not shown sufficient intent to pursue litigation against the non-diverse defendant was not an appropriate basis upon which to predicate a determination of fraudulent joinder. (KOLAR and MALDONADO, concurring)