Blue Cross Blue Shield affiliates jumped the gun on moving two state-court filed antitrust class actions into federal consolidated litigation, the Eleventh Circuit said Jan. 10.

Blue Cross moved to intervene in both cases but the motions hadn’t yet been granted when the affiliates removed the cases under the Class Action Fairness Act.

“Until a defendant is properly and formally a party in the action, we cannot determine whether there is a diversity of citizenship,” the U.S. Court of Appeals for the Eleventh Circuit said.

Several class actions were filed against Blue Cross Blue Shield Association and its licensees alleging they conspired to fix prices for medical providers in geographic service areas and conspired to boycott certain health-care providers. The suits were consolidated in the U.S. District Court for the Northern District of Alabama.

The two cases at issue here were filed against BCBS affiliates in state courts after the multidistrict litigation was formed.

The same day BCBS moved to intervene in the cases, defendants Wellmark Inc. and Louisiana Health Service & Indemnity Co. removed the cases to federal court under CAFA. They argued the cases were now subject to federal jurisdiction because adding BCBS as an intervenor created the minimal diversity required by CAFA.

The MDL court remanded the cases under the voluntary-involuntary rule that only a voluntary act of the plaintiff may convert a non-removable case into a removable one. The defendants appealed.

The appeals court held it has jurisdiction to hear the appeals of the remand orders because both cases were removed under CAFA.

But it found it couldn’t determine whether they were properly CAFA cases, as the parties weren’t yet minimally diverse. Accordingly it denied the petitions for appeal.

Judges Robin S. Rosenbaum, Jill A. Pryor, and Elizabeth L. Branch joined the opinion.

Kirkland & Ellis LLP; Nyemaster Goode P.C.; and Jones Walker LLP represented Wellmark and Louisiana Health.

Friedman Dazzio Zulanas & Bowling P.C.; Hawkins & Norris P.C.; and Wandro & Associates P.C. represented Chicoine.

Berman Fink Van Horn P.C.; Cox Cox Filo & Camel LLP; Morrow Morrow Ryan & Bassett; and Murray Law Firm represented Opelousas General.

The case is Wellmark Inc v. Chicoine, 2019 BL 9759, 11th Cir., No. 18-90018, 1/10/19.