Tanoh v. Dow Chemical Company ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AKA RAYMOND TANOH; ASSYE 
EUGENE TANOH; OTCHOUMOU JEAN
MARIE TANOH; TIRAOGOPAUL
TAONSA; ISSIAKA JEAN PIERRE
TAPSOBA; NORAOGO SALFO
TARBAGDO; NOAGA TARIHIDIGA;
SANOYO TIDIANE; BERTE TIECOURA;
TRAORE TIEDIOUGOU; KALIFA
TRAORE; KONE TIEGBE; ISSA
TRAORE; NORAOGO MICHEL
TIENDREBEGO; ZANI TOGOLA;
TOMINDREU PHILIPPE TOMAN;
OUAMBI TONDE; LALLE TOUGOUMA; No. 09-55138
ABOU DRAMANE TRAORE; ADAME
TRAORE; AROUNA TRAORE  D.C. No.
2:06-cv-07038-PA
BOUREIMA TRAORE; DAOUDA
TRAORE; LANCINE TRAORE; SALIA
TRAORE; SALIFOU TRAORE; SEKOU
TRAORE; ABDULAI UMARU; DARIUS
KOUASSI VANGAH; SAY FRANCIS
VANGAH; DEGUI VOGNIN; SOUMAILA
WAONGO; FIFOU JEAN MARIE
WAONGO; TILADO WAONGO; ANIBE
LAURENT WOGNE; AHIMI WOGNES;
ANIBE MAURICE WOGNIN;
KOUAMENAN JOSEPH WOGNIN;
KRAIDY EMILE WOGNIN; N’TAYE
WOGNIN;

4051
4052 TANOH v. DOW CHEMICAL COMPANY
PAUL WOGNIN; CHRISTOPHE YAMA; 
AFORI YAW; YEMDAOGO YAMMA;
OUATTARA YBROYMAN; ALLEFELIX
YANGRA; JOSEPH YANGUE; N’TAYE
CELESTIN YAO; KOUDSI YERBANGA;
BIGO YORO; KARIM YOUGBARE;
BOKARE ZEBA; OUED AHMEND
YOUSSOUF; BASSIROU ZARE; IDRISSA
ZABRE; LAMOUSSA ZAGRE; ARZOURA
AUGUSTIN ZANGRE; MOGTAR ZEBA;
PAWENDSAGRE ZEMBO; MOUMOUNI
ZERBO; SEKOU MAHAMADOU ZERBO;
YACOUBA ZERBO; TANH THEOPHILE
ZIAN; SOULEMANE ZOANGA;
MAHAMOUDOU ZOGONA; PAMOUSSA
ZOGONA; BOUKARE ZONGO; LOKRE
ZOMODO; KAGARI ALBERT ZONGO;

KOUDBI ZONGO; KOUKA ZONGO;
KOULIBI DIT JEAN ZONGO; NOBILE
ZONGO; PATIGNMA ZONGO; PIREGMA
REMI ZONGO; TIBO ZONGO; KONATE
ZOUMANA; YAOBGOAMDA ZONGO;
OUAMNANEGBA ZOUNDI; BOUREIMA
ZONGONA; SAIDOU ZONGONA;
TAPHAZOROMI; BILA ISSIAKA
ZOUGMORE; ATHANASE ZOUGNORE;
TILADO ZOUGNORE; GANOAGA
ADAMA ZOUGRANA; JEAN MARIE
ZOUGRANA; PASSAMWINDE ZOUNDI,
Plaintiffs-Appellees,
v.

TANOH v. DOW CHEMICAL COMPANY 4053

DOW CHEMICAL COMPANY, a
Delaware Corporation,

Defendant-Appellant.

AKEBO ABAGNININ; AMANGOUA 
ABLI; MIESSAN ETIENNE ABLI; ABA
ABOU; YAPO PIERRE ABOUA; KOFFI
ANTOINE ABRI; AMPOH ADAMA
TOURE ABRY; HARUNA
ABUBAKARAY; KROYA ACA;
SIMPLICE ACHIEPO; AVENIE ADJA;
BEHIRA VENANCE ADJA; NAOULE
ADJA; WOGNIN BARTHELEMY ADJA;
ANOUMAN VANANCE ADJE; KOUAME
EMILE AGNEY; AKA FRANCOIS
ADJOBI; KADJO DANIEL AHICOH; No. 09-55145
PASCAL ADJOBI; ASSMOI LAMBERT
ADJOBY; ASSI ADON; ADJA  D.C. No.
2:06-cv-07061-PA
BERNARD ADOUKO; ANIBE ADOUKO;
KOUASSI ANTONIN ADOUKO; MICHEL
ADOUKOK; CHEIKH AHMEDOULD;
ATCHE AHOBA; GUY HUSTON DE
LACOSTA AHOUSSI; BAKA JOACHIN
AHOGA; ADIA AHOULOU; KOVA
GREGOIRE AHOSSIN; AKA PIERRE
AHOUA; KOFFI NOEL AHOUA; ADJE
LAZARE AHOZE; VINCENT AIME;
ABEL AKA; ABLI ETIENNE
AKA;ALFRED AKA; ALLANGBA
BERNARD AKA; ASSOHOUN RAYMOND
AKA; BOGNINI AKA;

4054 TANOH v. DOW CHEMICAL COMPANY
KOUA AKA; KOUASSI JEROME 
ALLANGBA; NIANGRA JOSEPH AKA;
AMON JEAN BAPTISTE ALLOUAN;
OHOUMAN VENANCE AKA; WEDJE
DENIS AKA; SOUMAHIN JOSEPH
AKOHI; KRAIDI MARCELIN AKREDI;
KOUAME ALLA; AKA JAQUES
ALLANGBA; ANHOBO ERNEST
ALLOUAN; WOGNIN SERAPHIN
ALLOUAN; AYENOU ALPHONSE
ALOU; DAMO ALOU; DIAKITE
AMADOU; KADJO AMON; ESSI
ALPHONSE AMANGOUA; BAKA
AMON; KOUAME AMBROISE
AMANGOUA; VANGA JACQUES
AMANGOUA; KOUASSI ARSENE 
AMANI; DEMELE AMARA; KONE
AMARA; ADOUKO AMON; KADJO
BLAI AMON; ELIDJE AMPOH;
BANGOURA AMSOUMANY; N’CHOH
ASSEMIEN; DENIS ANGBENI; YEBI
DANIEL ASSI; ELLOH BLAISE ANIBE;
HOLY LEON ANIBE; N’TAYE
JACQUES CLOTAIR ANIBE; N’TAYE
MARC ANIBE; AKA MARIUS ANOH;
ANOH FELIX ANOH; KRAIDI ETIENNE
ANOH; NGATTA ANOH; NIAMKE
ANOMA; AKA EMMANUEL ASSALE;
MOTCHE ASSALE; BISSIE BRUNO
ASSAMOI; KOFFI ASSAMOI; ANGUIE
JEAN CLAUDE ASSI;

TANOH v. DOW CHEMICAL COMPANY 4055
KRAIODY THOMAS ASSEMIEN; 
DOMINIQUE ASSONGBA; GBETONDJI
ASSOUAN; OTCHOUMOU MATHIAS
ASSOUHOUN; KOUAMELAN JOSEPH
ASSOUHOUN; BOMOI ATEKE; ABEU
JULIEN AYE; YAPO JEAN ATSAIN;
ANON JOSEPH ATSE; ADEPO ATTIE
VANGA ASSAMOI,

Plaintiffs-Appellees,
v.
DOW CHEMICAL COMPANY, a
Delaware Corporation,
Defendant-Appellant.

AHOULOU RAPHAEL KANGAH; KANY 
JACOB KANY; ADAMA KARENE
DEMBELE KASSOUM; NORAOGO
KAYENDE; GANDA KAYORGO; ISSA
KAYORGO; MAMADI KEITA; OUMAR No. 09-55147
KEITA; SIBIRI KEREGUE;
SOMLOUGUIA KEREGUE; NOGBU JEAN  D.C. No.
2:06-cv-07059-PA
KIDRI; NORAOGO FRANCOIS KIEMA;
DAOUDA KINDA; MAHAMA KINDO;
OUANGO KOALGA; OUSSENI
KOANDA; SAIDOU DIT TINKIENGA
KOANDA; KOUASSI PIERRE KOCOGNI;
ABIELEY KODIA;

4056 TANOH v. DOW CHEMICAL COMPANY
ABLI JEROME KOFFI; ABRI FIRMIN 
KOFFI; ASSAMOI KOFFI; KACORE
BASILE KOFFI; PATRICE KOFFI; YAO
KOFFI; NOGBOU NORBERT KOHOBO;
AYEMOU FRANCOIS KOKOGNI; ADIKO
JEAN MARIE KOKOHI; AMANI
ETIENNE KONAN; N’GORAN KONAN;
ABDOULAYE KONATE; BOCARY
KONATE; DIAKARIDIA KONATE;
DRAMANE KONATE; IDRISSA KONATE;
ISSA KONATE; KAH KONATE; KASSIM
KONATE; KOTIGUI KONATE;
MAMADOU KONATE; MORIBA
KONATE; MORIDJE KONATE;
SOULEYMANE KONATE; TIEDIAN
KONATE; TIENAKAN KONATE
KARAWA KONDA; YAMANGOLE 
KONDA; ABDOULAYE KONE; ADAMA
KONE ANADOU KONE; DIABY KONE;
DRAMANE KONE; INZA KONE; ISSA
KONE; LASSINA KONE; OUMAR
KONE; SIAKA KONE; SOULEYMANE
KONE SOUMAILA KONE; TIEKORO
KONE; YAYA KONE; ZAKARIA KONE;
ISSA KONKISRE; YETASSIDA
KONKOBO; IBRAHIMA KONTA; BASGA
KORSAGA; KADJO EDMOND KOUA;
KOUASSI EDMOND KOUA; OPOKOU
DENIS KOUA; MARC KOUADIO;
ATSAIN PETER KOUADJO; KOFFI
HILAIRE LEON KOUAKOU; KOUAME
KOUAME; KOUASSI KOUAME;

TANOH v. DOW CHEMICAL COMPANY 4057
SANGA GEORGE KOUASSY;I MICHEL 
KOUAME; BAWAYA KOUDA;
RAYMOND KOUAME; AHIMIN DENIS
KOUAMELAN; ASSEMIAN
KOUAMELAN; ANTONIN KOUASSI;
EBIA PAUL KOUASSI; GERMAIN
AHOU KOUASSI; NOGBOU KOUASSI;
OTRON SEVERIN KOUASSI; YAO
DJESS KOUASSI; AKA GERMAN
KOUMELAN; ZAMBENDE KOUDOUGOU;

ADAMA KOURAOGO; SOUMANE
KOURAOGO; RASMANE KOURAOGO,
Plaintiffs-Appellees,
v.
DOW CHEMICAL COMPANY, a
Delaware Corporation,
Defendant-Appellant.

KALLILOU DIARRASSOUBA; HADO 
DIATIN; DJAKARIDJA DIOURIE; IRISSA
DIPAMA; VONAN MARCEL DJAIDJI;
JEAN DJAMBLE; DIAKIRO DJIBOUGOU; No. 09-55148
CAMARA DJIBRIL; EDJA DJIRIKO;  D.C. No.
N’GATTA GEORGES DJONWAN; 2:06-cv-07043-PA
LEBENIDIOUO; IDRISSA DOULKOM;
AMADOU DOUMBIA; BOURLAYE
DOUMBIA; CHIO DOUMBIA;

4058 TANOH v. DOW CHEMICAL COMPANY
DABLE DOUTI; AKA EHIVE; ASSALE 
EHOLE; ASSEMIEN EHOUSSOU; ABLE
PIERRE EKRA; MOH ANDRE ELIDJE;
GERMAIN ELLO; VANGAH ELLOH;
ADJROUFOU MAURICE ESSEY ETKERI
ETEKRI; KOUASSI IVES FRANCOIS
XAVIER EYA; KASSOURI FANE; YAO
BENJAMIN FOTO; OUSMANE GANAME;
MOCTAR GANSAGNE; KOUAKOU
GANZAN; KONATE LAMINE GNAMY;
LAYA BONIFACE GNIMINOU; ADAMA
KONE GOMON; ZILA GUEL; ABLASSE
GUIATIN; EDMOND GUIATIN; KOUKA
GUIATIN; LAMOUSSA GUIATIN;
OUSMANE GUIATIN; YAYA GUIATIN;
HAMIDOU GUIRE; SOUMAILA GUIRE;
TASSARE GUIRE KPALE JULES 
HAHOBA; SEINI BABA HAMADOU;
BOMANE HEBIE; BARBEY HEMA;
HANOU FRANCOIS HEMA;
MOUONNOUMON HIEN; WINYEL
HIEN; AHOUA ARSENE HOLLY;
N’GUESSAN HOLLY; HOUA TEKE
HOUA; YEHOU JULES HOUETCHEMOU;
INNOCENT HOUNDONOUGBO;
DASSAMSSO ILBOUDO; PAGNIMDI
ILBOUDO; RAOGO ILBOUDO;
TIBYANDE ILBOUDO; YABRE
BOUREIMA ILBOUDO; KOYATE ISSA;
TRAORE ISSA; KPOLE JEAN; NIANGUE
JEAN; LANCINA KABAGATE;
BOUREIMA KABOLOM; BOUDNOMA
KABORE;

TANOH v. DOW CHEMICAL COMPANY 4059
FRANCOIS XAVIER KABORE; KARIN 
KABORE; MAMADOU KABORE;
OUSMANE KABORE; PASSIGBAMBA
TASSERE KABORE; PASSINGUE YAOBA
KABORE; RATAMALGDA ALFRED
KABORE; SIBIRI KABORE; TIBILA
KABORE; TOUSSAGA KABORE;
SANDAOGO KABRE; KRAIDI FREDERIC
KACOU; NOGBOU DAVID KACOU;
N’TAH JULES KACOU; N’TAYE EMILE
KACOU; ASSOHOUN YACINTHE
ARMEL KADJO; AHOULOU MOISE
KADJO; AYEMOU LAURENT KADJO; 
AYEMOU RAYMOND KADJO; MIESSAN
DENIS KADJO; RENE KADJO;
VANGAH KADJO; TANGA RASMANE
KAFANDO; AMON BARTHELEMY
KAKJO; ESSE KAKOU; OMPIRE
KAMBOU; MAMADOU KANATE,
Plaintiffs-Appellees,
v.
DOW CHEMICAL COMPANY, a
Delaware Corporation,
Defendant-Appellant.

4060 TANOH v. DOW CHEMICAL COMPANY
POUPOIN JEAN PIMMA; DANSINE 
PLEA; ACHIEDO JONAS POKOU;
KOUKOUA FRANCOIS POPOUIN;
SOUMAILA POROGO; ISSIAKA POROGO
ABDOU QUEDRAOGO; GNISSIRI
RAMDE; RAOGO RANDWIDI; TIENOKO
SAGNON; TRAORE SAIDOU; IRISSA
SAKANDE; NARAOGO SALOU;
MOUSSA SAMAKE; IDRISSA SANA;
SALFO SANA; SAOUMAILA SANA;
EDMOND SANDWIDI; IRISSA
SANDWIDI; LARBA HAMADO 
SANDWIDI; NONGMA SANDWIDI;
NOUFOU SANDWIDI; RAMANE
SANDWIDI; SAYDOU SANDWIDI;
EMMANUEL SANGA; ABDOULAYE
SANGARE; ADAMA SANGARE;
BIRAMA SANGARE; BRAHIMA
SANGARE; MAMADOU SANGARE;
SALIFOU SANGARE SIDIKI SANGARE;
SOULEYMANE SANGARE; HAMADE
SANKARA; MAROU SANKARA;

TANOH v. DOW CHEMICAL COMPANY 4061

LANOUSSA SANKE; YOUSSOUFI
SANOGO; KODJO AMBOISE SANTIN;
ADAMA SARBA; DARIQUIO RASMANE
SAVADOGO; KARIM SAVADOGO;
LEONARD SAVADOGO; RATOGZITA
MARCEL SAVADOGO; ARDOUL RAHIN
SAWADOGO; HANIDOU SAWADOGO;
ISSA SAWADOGO; OUSSENI
SAWADOGO; PALIKIDI SAWADOGO; No. 09-55153
RAFAEL SAWADOGO; SEIDOU BODGO
SAWADOGO; TOUKOUMNOGO  D.C. No.
2:06-cv-07058-PA
SAWADOGO; YABRE HAMADO
SAWADOGO; MOUSSA SEDOGO;
OUTTARA SEIDOU; KONTA SEKOU;
NAUD SERGE; KONE SIAKA;
ABDOURAHAME SIDIBE; SATIGUI
SIDIBE; YAYA SIDIBE; MAMOUROU
SIDIDE; BERTHE SIDIKI; MOUSSA
SIMPORE; PAKI NWEOGO SIMPORE;
YAMBA SINARE; TOURE SIRAMANA;
DOGOBIE SIRIBIE; LASSINA SIRIBIE;
YAYA SIRIBIE; NOUFOU SODRE;

4062 TANOH v. DOW CHEMICAL COMPANY

SEKOU SOGODOGO; KISSI ANTOINE
SOMAHIN; SAMOUOR SOMDA; TIKORA
SOMDA; ALFRED SOME; ANYEL
SOME; BELIYAN JEAN PIERRE SOME;
DAR SOME; FRANCOIS XAVIER SOME;
GNONOUOR SOME; KOUNYERE SOME;
WINEYEL SOME; WINIDEMA SOME;
SALIFOU SONDO; MOUSSA SORE;
SONGDA SORGHO; BOUREIMA SORO;

SIDIKI SOUGUE; KONATE
SOULEYMANE; LAMINE OUATTARA
SOULEYMANE; BOUKARE SOULGA;
ZOUMANA SOUMAHORO; KONE
SOUMAILA; JEROME TADE; BI TAH
RENE TAH; CAMARA TAMBA;
LEBENDE SANDWIDI,
Plaintiffs-Appellees,
v.
DOW CHEMICAL COMPANY, a
Delaware Corporation,
Defendant-Appellant.

TANOH v. DOW CHEMICAL COMPANY 4063
AKA GEORGES AYEMOU; ATTEKE 
ADOLPHE AYEMOU; NOGBOU
ANATOLE AYEMOU; YACOUBA BA;
OUATTARA BABALA; DOUNGASSE
BABEM; NOAGA BABOLOUM;
BAGUIBDUE BADO; OUMAROU
BADOLO; YACOUBA BADOLO; KWASI
BADU; DIAKITE BOURLAYE;
GOURASSA BOUSSIM; BADIOU BADO;
ZABOURE HAMADOU BOUSSIM;
KOUDOUGOU DENIS BAGRE; ADJE
BROU BROU; ROGER BROU; MOUSSA
CAMARA; TIEFINI CAMARA; DOUMBIA
CHIO; RAOGO COMPAORE; ISSOUF No. 09-55156
COMPAORE; RASMANE COMPAORE;
SOULEYMANE COMPAORE;  D.C. No.
2:06-cv-07060-PA
TILAGAGNANDE COMPAORE; PATENDE
CONGO; WAHABO BAGAGNAN;
ADAMA BAGAYOGO; VANGA
FRANCOIS BAKA; OUATTARRA
BAKARI; KONATE BAKARY; BAGNON
DIT MATHIAS BAKO; KAYOURE
ISSAKA BALIMA; BAKARY BALLO;
SIDIK COULIBALY; SILAMBO DA;
BROU JUSTIN DABIRE; DONBOR
DABIRE; MILO DABIRE ANONA
DABIRI; KOUNOU BERNARD
DADEGNON; BAH ALBERT BAH;
MOUSSA DAGNOGO; FRANCOIS
BALMA;

4064 TANOH v. DOW CHEMICAL COMPANY
MARTIN EMERITE DAH; CRAIDY 
ANTOINE DAIKRI; KOFFI ANTOINE
DAINGUY; KRAIDI JOSEPH DAINGUY;
AGUSTINE DANQUAH; KOUASSI
CLEMENT DEDE; GUEHI MARTIN
DEHE; DJAKARIDJA DEMBELE;
GBEGUELE BAMBA; LACINA
BAMOUNI; MAHAMOUDOU BANGRE;
BOULBOURE BANSE; HAMIDOU
BARRY; TOUNI BAYE; BOUILION
BAYELI; BALELE BAZIE; DRAMANE
BELEM; YACOUBA DENE; KOVAO
ALBERT DGRI; KARAMOKO DIABATE;
MADY DIABATE; BOZAN DIAKITE;
MAMADOU DIAKITE; BOUDRAMANE 
DIALLO; SYLVAIN BALMA;
ALHASSANE DIALLO; UKIEBIE
DIANOU; ISSOUFOU DIALLO; MOCTAR
DIALLO; TINBILA DIALLO; YAYA
DIARRA; BILA BEOGO; BOUREIMA
BERE; MELAN BILE; AMANGOUA
MOISE BLE; BAKARY DIARRA; BAH
EMILE BLE; N’TAYE RAYMOND
BOSSON; KOFFI BOHOUSSOU;
HOUINSOU JOANIE BOKE; NIAMKE
BOMMOA; PIERRE BONNIN; TANOH
BONY; KOUDAOGO BOUDAU; GUEU
CHRISTOPHE BOUEU; KINDO
BOUBACOU;

TANOH v. DOW CHEMICAL COMPANY 4065
HAMADO BOUGMA; KONE BOURANA; 
SAIDOU BOUGMA,
Plaintiffs-Appellees,
v. 
DOW CHEMICAL COMPANY, a
Delaware Corporation,
Defendant-Appellant.

AKA FRANCIOS KOVASSI; KRADI 
MARCELIN KREDI; BAORE SALIF
LAGUEMPENDO; WENNEMI
LAGUEMPENDO; OUTTARA LAMINE;
KEITA LASSANE; ABDOULAYE LOURE;
PAUL MACOUIMA; HAMADOU MAIGA;
DIOMANDE MAMADOU; OUATTARA
MAMADOU; KOUNTOMBASBA NANA; No. 09-55160
OUSSEINI MANDE; SOUMARE
MOUSSA; TANO JEROME MANDESSOU;  D.C. No.
2:06-cv-07067-PA
SOUMAILA MARIKO; DIARASSOUBA OPINION
MATIE; KALFA MILLOGO; SIAN
MILLOGO; MATIKPON FIDELE
MINAVOA; KRAIDY EUGENE
MOSSOUN; MOH MOSSOUN;
MOSSOUN RAYMOND MOSSOUN;
CISSE MOURINOU; KONE MOUSSA;
DIBIRI DRAMANE NANA;

4066 TANOH v. DOW CHEMICAL COMPANY
TIGA BOUREIMA NANA; TINGA 
GILBERT NANA; TINGRA NANA;
RASSABLEGA NANEMA; YAMBA
NASERE; DAOGO NASRE; RAOGO
NATAMA; YABRE NATAMA;
OUSMANE NEBIE; EDMOND CLEMENT
TIMOLEON NEBOUT; ANOH ALPHONSE
N’GATTA; KOUADIO ERIC N’GORAN;
BOMOUAN FREDERIC N’GUESSAN;
KOKOBO ETIENNE N’GUESSAN; ASSI
MICHEL NIAMA ESSY NIAMIEN;
DANGUI ELOI NIAMKE; AKA
RAPHAEL NINTIN; OUSMANE KONE
NIDIANTIEN; AMOU NINTIN;
KOUDOUGOU FRANCOIS NIKIEMA;
LOUGRI NIKIEMA; TEGAWINDE DENIS 
NIKIEMA; TIGA NIKIEMA; CAMARA
NINGOU; ANOH LOUIS N’KO; LEON
NOBOU; KONE; SIAKAKONE;
SOULEYMANE KNOW; SOUMAILA
KONE; TIEKORO KNOW; YAKY
KONE; ZAKARIA KONE; ISSA
KONKISRE; YETASSIDA; KONKOBO;
IBRAHAIM KNOTA; BASGA KORSAGA;
KADJO EDMOND KOUA; KOUASSI
EDMOND KOUA; OPOKOU DENIS
KOUA; AKA GERMAN KOUMELAN;
MARC KOUADIO; ADAMA
KOURAOGO; ATSAIN PETER
KOUADJO;

TANOH v. DOW CHEMICAL COMPANY 4067
KOFFI HILAIRE LEON LOUAKOU; 
KOUAME KOUAME; KOUASSI
KOUAME; MICHEL KOUAME;
RAYMOND KOUAME; AHIMIN DENIS
KOUAMELIAN; ASSEMIAN
KOUAMILAN; ANTONIN KOUASSI;
EBIA PAUL KOUASSI; GERMAIN
AHOU KOUASSI; NOGBOU KOUASSI;
OTRON SEVERIN KOUASSI; YAO
DJESS KOUASSI; SANGA GEORGE 
KOUASSY; BAWAYA KOUDA;
ZAMBENDE KOUDOUGOU; RASMANE
KOURAOGO; SOUMANE KOURAOGO,
Plaintiffs-Appellees,
v.
DOW CHEMICAL COMPANY, a
Delaware Corporation,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
March 10, 2009—Pasadena, California
Filed March 27, 2009
Before: Michael Daly Hawkins, Marsha S. Berzon and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Berzon
4070 TANOH v. DOW CHEMICAL COMPANY
COUNSEL
Michael Brem (argued), Schirrmeister Diaz-Arrastia Brem
LLP, Houston, Texas; Edwin V. Woodsome, D. Barclay
Edmundson, and Andrew S. Wong, Orrick, Herrington & Sut-
cliffe LLP, Los Angeles, California, for defendant-appellant
The Dow Chemical Company.
Raphael Metzger, Greg Coolidge, and Kathryn Darnell
(argued), Metzger Law Group, Long Beach, California, for
plaintiffs-appellees Aka Raymond Tanoh, et al.
OPINION
BERZON, Circuit Judge:
We are asked to decide whether seven individual state court
actions, each with fewer than one hundred plaintiffs, should
be treated as one “mass action” eligible for removal to federal
court under the Class Action Fairness Act of 2005 (“CAFA”),
Pub. L. No. 109-2, 119 Stat. 4 (2005). CAFA extends federal
removal jurisdiction only to civil actions “in which monetary
relief claims of 100 or more persons are proposed to be tried
TANOH v. DOW CHEMICAL COMPANY 4071
jointly on the ground that the plaintiffs’ claims involve com-
mon questions of law or fact.” 28 U.S.C. § 1332(d)(11)(B)(i).
As neither the parties nor the trial court has proposed jointly
trying the claims of one hundred or more plaintiffs in this
case, we affirm the district court’s order remanding each of
the seven individual actions to state court.
FACTS
Defendant-Appellant The Dow Chemical Company
(“Dow”) appeals the district court’s order remanding the toxic
tort claims of 664 West African foreign nationals to state
court. Plaintiffs allege that they were exposed to a Dow prod-
uct containing 1,2-dibromo-3-chloropropane (“DBCP”) while
working on banana and pineapple plantations in the villages
of Ono and Kakoukro in the Ivory Coast.1 Plaintiffs claim to
have suffered a host of serious and permanent injuries as a
result of exposure to DBCP, including sterility and infertility.
On September 27, 2006, plaintiffs filed suit against Dow and
several other defendants in Los Angeles Superior Court,
asserting claims for negligence, misbranding, defective
design, fraudulent concealment, breach of implied warranties,
and battery. They did so in seven separate actions, each of
which included fewer than one hundred plaintiffs.
Dow subsequently filed a notice of removal to federal
court, asserting both federal diversity jurisdiction and jurisdic-
tion under CAFA. Dow argued, inter alia, that there was com-
plete diversity between plaintiffs and all properly joined
1
DBCP was commonly used in pesticides to control nematodes, micro-
scopic worms that infest the roots of plants. Plaintiffs allege that although
DBCP manufacturers realized that it was “the most potent testicular toxin
known to science” as early as the 1950s, they continued to distribute agri-
cultural products containing DBCP well into the 1980s. The EPA sus-
pended domestic use of DBCP in 1979 but did not ban export of the
pesticide. Despite the domestic ban, plaintiffs claim, Dow continued to
supply pesticides containing DBCP to plantations in the Ivory Coast until
at least 1986.
4072 TANOH v. DOW CHEMICAL COMPANY
defendants; that several California defendants (AMVAC
Chemical Corporation, Dole Food Company, Dole Fresh Fruit
Company, Standard Fruit and Steamship Company, and Stan-
dard Fruit Company) had been fraudulently joined to defeat
removal to federal court; and that the seven actions filed by
plaintiffs, taken together, qualified as a “mass action” remov-
able to federal court under CAFA. CAFA 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 questions of law or fact, except that
jurisdiction shall exist only over those plaintiffs
whose claims in a mass action satisfy the jurisdic-
tional amount requirements under subsection (a).
28 U.S.C. §1332(d)(11)(B)(i). The statute specifies that a
“ ‘mass action’ shall not include any civil action in which . . .
(II) the claims are joined upon motion of a defendant; . . . or
(IV) the claims have been consolidated or coordinated solely
for pretrial proceedings.” 28 U.S.C. § 1332(d)(11)(B)(ii).
The district court remanded the actions to state court sua
sponte, holding that defendants had failed to show that the
California companies were fraudulently joined and that
removal under CAFA was not proper because each of the
actions involved fewer than the one hundred plaintiff statutory
minimum for a “mass action” under CAFA. The district court
specifically rejected defendants’ argument that the claims
should be removable because plaintiffs had “strategically
sought to avoid federal jurisdiction” by filing several separate
state court actions in groups fewer than one hundred. Empha-
sizing that CAFA specifically excludes actions in which
claims have been “joined upon motion of a defendant” from
the definition of a “mass action,” the court concluded that “[to
allow] removal in this case would effect an end-run around
TANOH v. DOW CHEMICAL COMPANY 4073
the limits Congress itself has imposed on removal pursuant to
CAFA.”
On appeal of the district court’s sua sponte remand orders,
a prior panel of this court vacated and remanded, holding that
the district court exceeded its authority by ordering a remand
sua sponte. See Ayemou v. AMVAC Chemical Corp., No. 06-
56826 (9th Cir. Aug. 20, 2008). Plaintiffs subsequently filed
a motion to remand their claims to state court, arguing, inter
alia, that defendants had failed to demonstrate that plaintiffs’
claims satisfied the $75,000 amount in controversy require-
ment for federal diversity jurisdiction or the $5,000,000
amount in controversy requirement for removing a “mass
action” to federal court under CAFA. See Abrego Abrego v.
Dow Chem. Co., 443 F.3d 676, 682-86, 688-90 (9th Cir.
2006). Plaintiffs also claimed that none of the state court
actions were “mass actions” under CAFA because each of the
seven suits involved fewer than one hundred plaintiffs.
The district court granted plaintiffs’ motion to remand on
October 21, relying almost verbatim on the reasoning con-
tained in its earlier sua sponte orders. Dow sought permission
to appeal the district court’s refusal to exercise jurisdiction
under CAFA pursuant to 28 U.S.C. § 1453(c).2 This court
granted permission to appeal on January 29, 2009.3 We
review the district court’s remand order de novo. See Abrego
Abrego, 443 F.3d at 679.
2
Section 1453(c) governs removal of class actions to federal court, spe-
cifically providing that “a court of appeals may accept an appeal from an
order of a district court granting or denying a motion to remand a class
action to the State court from which it was removed if application is made
to the court of appeals not less than 7 days after entry of the order.” In
Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, Inc.,
435 F.3d 1140 (9th Cir. 2006), we held that the last clause of § 1453(c)
contains an error, construing the provision to require that the application
to appeal be made not more than seven days after the district court’s order.
Id. at 1145-46.
3
On February 3, 2009, this court sua sponte consolidated Dow’s appeals
in all seven cases.
4074 TANOH v. DOW CHEMICAL COMPANY
ANALYSIS
I.
The primary issue before us is whether seven individual
state court actions, each with fewer than one hundred plain-
tiffs, should be treated as one “mass action” eligible for
removal to federal court under CAFA. To answer this ques-
tion, we turn to the language of the statute, after first placing
that language in context. See Dodd v. United States, 545 U.S.
353, 357 (2005).
Congress enacted CAFA in 2005 to “assure fair and prompt
recoveries for class members with legitimate claims; [to]
restore the intent of the framers . . . by providing for Federal
court consideration of interstate cases of national importance
under diversity jurisdiction; and [to] benefit society by
encouraging innovation and lowering consumer prices.”
CAFA § 2, 119 Stat. at 5. As this description of the Act’s pur-
poses makes clear, CAFA was designed primarily to curb per-
ceived abuses of the class action device which, in the view of
CAFA’s proponents, had often been used to litigate multi-
state or even national class actions in state courts. See id. at
4-5. At the same time, however, section 4(a)(11) of the Act
also extended federal removal jurisdiction to “mass actions,”
which were defined as “any civil action (except a [class
action]) in which monetary relief claims of 100 or more per-
sons are proposed to be tried jointly on the ground that the
plaintiffs’ claims involve common questions of law or fact.”
CAFA § 4(a)(11)(B)(i), 28 U.S.C. § 1332(d)(11)(B)(i). This
“mass action” provision is at the heart of the current appeal.
[1] Although plaintiffs in a mass action, unlike in a class
action, do not seek to represent the interests of parties not
before the court, CAFA provides that a qualifying mass action
“shall be deemed to be a class action” removable to federal
court under the Act, so long as the rest of CAFA’s jurisdic-
tional requirements are met. See 28 U.S.C. § 1332(d)(11)(A).
TANOH v. DOW CHEMICAL COMPANY 4075
Among these requirements, the aggregate amount in contro-
versy must exceed “$5,000,000, exclusive of interest and
costs,” and at least one plaintiff must be a citizen of a state
or foreign state different from that of any defendant. See 28
U.S.C. § 1332 (d)(2), (6). Subsection (d)(11) further limits
federal removal jurisdiction in a “mass action” to “those
plaintiffs whose claims in a mass action satisfy the [$75,000]
jurisdictional amount [in controversy] requirements” for fed-
eral diversity jurisdiction.4 28 U.S.C. § 1332(d)(11)(B)(i).
[2] Although CAFA thus extends federal diversity jurisdic-
tion to both class actions and certain mass actions, the latter
provision is fairly narrow. As noted above, CAFA’s “mass
action” provision applies only to civil actions in which the
“monetary relief claims of 100 or more persons are proposed
to be tried jointly.” 28 U.S.C. § 1332(d)(11)(B)(i). By its
plain terms, § 1332(d)(11) therefore does not apply to plain-
tiffs’ claims in this case, as none of the seven state court
actions involves the claims of one hundred or more plaintiffs,
and neither the parties nor the trial court has proposed consol-
idating the actions for trial.
[3] “[W]hen the statute’s language is plain, the sole func-
tion of the courts — at least where the disposition required by
the text is not absurd — is to enforce it according to its
terms.” Hartford Underwriters Ins. Co. v. Union Planters
Bank, 530 U.S. 1, 6 (2000) (internal quotation marks omitted).
In this case, concluding that plaintiffs’ claims fall outside
CAFA’s removal provisions is not absurd, but rather is con-
sistent with both the well-established rule that plaintiffs, as
masters of their complaint, may choose their forum by select-
ing state over federal court and with the equally well-
4
In Abrego Abrego, we left open the question whether this clause
requires that one hundred or more plaintiffs individually satisfy the
$75,000 amount in controversy requirement for federal diversity jurisdic-
tion to qualify as a “mass action” under CAFA. See 443 F.3d at 686-88.
Given our disposition in this case, we once again do not decide the issue.
4076 TANOH v. DOW CHEMICAL COMPANY
established presumption against federal removal jurisdiction.
See Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 998-
99 (9th Cir. 2007). We therefore hold that CAFA’s “mass
action” provisions do not permit a defendant to remove to fed-
eral court separate state court actions, each involving the
monetary claims of fewer than one hundred plaintiffs.
II.
[4] In spite of the statutory language, Dow contends that
allowing plaintiffs to “evade” CAFA by “artificially structur-
[ing]” their lawsuits to avoid removal to federal court would
be inconsistent with congressional purpose. Relying on both
the Act’s legislative history and two recent, out-of-circuit
decisions interpreting a separate provision of the Act, Dow
urges us to conclude that plaintiffs’ seven actions, viewed
together, constitute a single “mass action” under CAFA.
Dow’s arguments are unpersuasive, for several reasons.
[5] First, as the district court correctly noted, Congress
appears to have foreseen the situation presented in this case
and specifically decided the issue in plaintiffs’ favor. In addi-
tion to requiring that a “mass action” include the claims of at
least one hundred plaintiffs “proposed to be tried jointly,”
§ 1332(d)(11) specifically provides that “the term ‘mass
action’ shall not include any civil action in which . . . the
claims are joined upon motion of a defendant.” 28 U.S.C.
§ 1332(d)(11)(B)(ii)(II) (emphasis added). Congress antici-
pated, in other words, that defendants like Dow might attempt
to consolidate several smaller state court actions into one
“mass action,” and specifically directed that such a consoli-
dated action was not a mass action eligible for removal under
CAFA.
[6] In light of this statutory directive, we fail to see how the
result could be any different in a case such as this one, in
which Dow — while never formally moving to consolidate
plaintiffs’ claims — urges us to treat those claims as if they
TANOH v. DOW CHEMICAL COMPANY 4077
should have been consolidated for purposes of removal under
CAFA. The absence of a formal motion cannot blink away the
fact that Dow, the defendant, is asking us to consolidate sepa-
rate actions for purposes of applying the “mass action” provi-
sion. A “motion” is nothing more than “a written or oral
application requesting a court to make a specified ruling or
order,” Black’s Law Dictionary 1036 (8th ed. 2004), so
Dow’s request precisely fits the statutory limitation. By
expressly removing state court actions “joined upon motion of
a defendant” from CAFA’s reach, Congress intended to allow
suits filed on behalf of fewer than one hundred plaintiffs to
remain in state court, notwithstanding defendants’ wishes for
consolidation, however expressed.
[7] Second, CAFA contains similar language regarding
claims “consolidated or coordinated solely for pretrial pro-
ceedings,” again specifying that such actions do not qualify as
“mass actions.” See 28 U.S.C. § 1332(d)(11)(B)(ii)(IV). This
provision reinforces our conclusion that Congress intended to
limit the numerosity component of mass actions quite
severely by including only actions in which the trial itself
would address the claims of at least one hundred plaintiffs. In
the face of this detailed definition of a “mass action,” we can-
not sensibly entertain the notion that Congress intended to
allow courts to override the considered legislative limitations
on the “mass action” concept.
[8] Third, although Dow relies heavily on CAFA’s legisla-
tive history to argue that plaintiffs should not be permitted to
“game” jurisdictional statutes to remain in state court, this
legislative history — to the extent it is pertinent5 — merely
5
Dow relies heavily on a Senate Committee report that was not printed
until ten days after CAFA’s passage into law. See S. Rep. No. 109-14, at
79 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 73; Abrego Abrego, 443
F.3d at 683. The Report is therefore of minimal, if any, value in discerning
congressional intent, as it was not before the Senate at the time of CAFA’s
enactment. See Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57-58 (2d Cir.
2006) (specifically disclaiming reliance on S. Rep. No. 109-14).
4078 TANOH v. DOW CHEMICAL COMPANY
reaffirms our conclusion that plaintiffs’ claims are not remov-
able. Dow argues that CAFA’s primary purpose was to pre-
vent plaintiffs’ lawyers from abusing the class action device,
often by filing several “copycat” actions alleging the same
injuries on behalf of the same class of plaintiffs in different
state courts. While this may well be true, Dow fails to explain
how such concerns apply to this case, in which seven different
groups of plaintiffs, none of which purport to represent a
nationwide class, allege the same injuries in the same court.
Certainly, competing claims to represent the same class of
plaintiffs might raise concerns that overlapping or identical
claims would be litigated in multiple jurisdictions. But such
concerns simply do not apply in this case, in which plaintiffs
expressly elected not to proceed as a class.
[9] Moreover, while Dow cites a litany of passages from
CAFA’s legislative history evincing general concern over
“copycat” class actions and jurisdictional “gamesmanship,”
those sections of the Senate Report specifically addressing
CAFA’s “mass action” provisions support our interpretation
of the statute. The Report describes “mass actions,” for exam-
ple, as “suits that are brought on behalf of numerous named
plaintiffs who claim that their suits present common questions
of law or fact that should be tried together even though they
do not seek class certification status,” thus emphasizing that
the decision to try claims jointly and thus qualify as a “mass
action” under CAFA should remain, as we concluded above,
with plaintiffs. S. Rep. No. 109-14, at 46; see also id. (“Under
subsection 1332(d)(11), any civil action in which 100 or more
named parties seek to try their claims for monetary relief
together will be treated as a class action for jurisdictional pur-
poses.” (emphasis added)). Similarly, the Report specifies that
a “mass action” meeting CAFA’s jurisdictional requirements
“would not be eligible for federal jurisdiction if . . . . the
defendants (not the plaintiffs) sought to join the claims.” Id.These passages bolster our conclusion that removal under
CAFA is limited to cases in which one hundred or more plain-
tiffs elect to try their claims together.
TANOH v. DOW CHEMICAL COMPANY 4079
Fourth, the out-of-circuit cases relied upon by Dow do not
detract from our conclusion, as none of them addressed
CAFA’s “mass action” or numerosity provisions. Both Free-
man v. Blue Ridge Paper Products, Inc., 551 F.3d 405 (6th
Cir. 2008), and Proffitt v. Abbott Laboratories, 2008 WL
4401367 (E.D. Tenn. Sept. 23, 2008), involved plaintiffs who
attempted to split their claims into multiple suits covering dis-
crete time periods so as to expand their recovery without trig-
gering CAFA’s $5 million amount in controversy
requirement. In Freeman, for example, plaintiffs divided their
nuisance class action against a paper mill into “five separate
suits covering distinct six-month time periods, with plaintiffs’
limiting the total damages for each suit to less than CAFA’s
$5 million threshold.” 551 F.3d at 406. In Proffitt, plaintiffs
similarly divided their anti-trust class action into “eleven law-
suits that are identical except for the time periods that they
allege to cover.” 2008 WL 4401367 at *1. Each of the eleven
complaints included a disclaimer limiting damages for the
covered time period to $4,999,000. Id. at *2.
In both cases, the court rejected plaintiffs’ creative attempts
to avoid CAFA’s amount in controversy requirement, holding
that removal was proper because the time divisions were
“completely arbitrary,” as there was “no colorable reason for
breaking up the lawsuits in this fashion, other than to avoid
federal jurisdiction.” Freeman, 551 F.3d at 407; Proffitt, 2008
WL 4401367 at *2. Central to the courts’ holdings, however,
was the fact that both sets of plaintiffs split their claims in an
effort to seek well over $5 million in total damages without
triggering federal removal jurisdiction. As the Sixth Circuit
explained, plaintiffs are generally allowed to plead around
federal jurisdiction at a cost: they must limit the damages they
seek to less than CAFA’s $5 million threshold. See 551 F.3d
at 409. Permitting plaintiffs to split their claims arbitrarily by
time period threatened to subvert this rule, enabling plaintiffs
to seek well over $5 million — in Freeman, for example,
almost $25 million among the five suits — without subjecting
themselves to federal removal jurisdiction. The court rebuffed
4080 TANOH v. DOW CHEMICAL COMPANY
this end-run around CAFA, holding that “where recovery is
expanded, rather than limited, by virtue of splintering of law-
suits for no colorable reason, the total of such identical splin-
tered lawsuits may be aggregated.” Id.; see also Proffitt, 2008
WL 4401367 at *5.
The concerns animating Freeman and Proffitt simply are
not present in this case, as none of the seven groups of plain-
tiffs has divided its claims into separate lawsuits to expand
recovery. To the contrary, each of the seven state court
actions was brought on behalf of a different set of plaintiffs,
meaning that none of the plaintiff groups stands to recover in
excess of CAFA’s $5 million threshold between the seven
suits.
More importantly, neither Freeman nor Proffitt addressed
the specific statutory provisions at issue here. Both cases
involved class actions rather than mass actions, and it was
undisputed that both plaintiff classes easily exceeded CAFA’s
one hundred plaintiff threshold. See Freeman, 551 F.3d at 406(describing plaintiff class of three hundred landowners); Prof-
fitt, 2008 WL 4401367 at *2 (noting that plaintiffs in anti-
trust class action did not challenge removal on basis of class
size). Neither court therefore had the opportunity to address
whether several individual state court actions, filed on behalf
of different groups of fewer than one hundred plaintiffs,
should be treated as one “mass action” under CAFA.6 More-
6
The same is true of another recent case cited by Dow, Bullard v. Bur-
lington N. Santa Fe Ry. Co., 535 F.3d 759 (7th Cir. 2008). In that case,
144 plaintiffs sought damages for exposure to chemicals that had allegedly
escaped from a nearby wood-processing plant. Id. at 761. The court held
that by filing a complaint on behalf of 144 residents injured by the leak,
plaintiffs had proposed jointly trying the claims of one hundred or more
people, triggering removal under CAFA. Id. at 761-62. The Seventh Cir-
cuit had no occasion to consider whether multiple state court actions
involving fewer than one hundred plaintiffs could be removed under
CAFA as a single mass action, as plaintiffs’ complaint in Bullard, on its
face, asserted claims on behalf of more than one hundred individuals.
TANOH v. DOW CHEMICAL COMPANY 4081
over, both Freeman and Proffitt involved an issue — the split-
ting of plaintiffs’ claims by time period — as to which
CAFA’s class action provisions are completely silent. In this
case, by contrast, the statute speaks directly to the issue at
hand, specifying that claims “joined upon motion of a defen-
dant” do not qualify for removal to federal court under
CAFA.
Dow, of course, urges us to adopt a broader reading of
Freeman and Proffitt, arguing that those cases stand for the
general proposition that plaintiffs’ lawyers cannot “game” the
system by artificially structuring their suits so as to avoid
CAFA jurisdiction. The decisions themselves, however, dis-
claim any such reading. The Sixth Circuit specifically “lim-
ited [its holding] to the situation where there is no colorable
basis for dividing up the sought-for retrospective relief into
separate time periods, other than to frustrate CAFA.” Free-
man, 551 F.3d at 409 (emphasis added). Moreover, as noted
above, Freeman’s holding was limited to cases “where recov-
ery is expanded, rather than limited, by virtue of splintering
of lawsuits.” Id. In the same paragraph, the Sixth Circuit reaf-
firmed the general rule that “if a plaintiff ‘does not desire to
try his case in the federal court he may resort to the expedient
of suing for less than the jurisdictional amount, and though he
would be justly entitled to more, the defendant cannot
remove.’ ” Id. (quoting St. Paul Mercury Indem. Co. v. Red
Cab Co., 303 U.S. 283, 294 (1938)).
III.
[10] In short, by its plain language, CAFA’s “mass action”
provisions apply only to civil actions in which “monetary
relief claims of 100 or more persons are proposed to be tried
jointly.” 28 U.S.C. § 1332(d)(11)(B)(i). None of the seven
state court actions removed to federal court by Dow involves
the claims of one hundred or more persons proposed to be
tried jointly, and the actions are therefore not removable to
federal court under CAFA.
4082 TANOH v. DOW CHEMICAL COMPANY
Plaintiffs’ separate state court actions may, of course,
become removable at same later point if plaintiffs seek to join
the claims for trial. See Bullard, 535 F.3d at 761-62. We
express no opinion as to whether a state court’s sua sponte
joinder of claims might allow a defendant to remove sepa-
rately filed actions to federal court as a single “mass action”
under CAFA.
In light of our disposition, we also do not reach plaintiffs’
alternative argument that Dow has failed to establish that
plaintiffs’ claims satisfy CAFA’s jurisdictional amount in
controversy requirements. See generally Abrego Abrego, 443
F.3d at 680-90.
AFFIRMED.