The Supreme Court granted certiorari on May 28, 2013 in Mississippi ex rel. Hood v. AU Optronics Corp., 701 F.3d 796 (5th Cir. 2012) to settle a circuit split over how the “mass action” removal provision of the Class Action Fairness Act (CAFA) applies to state attorney general suits.
In AU Optronics, the Mississippi attorney general filed price-fixing claims against several electronics manufacturers alleging a conspiracy to fix prices on LCD displays. Defendants removed the case to federal court, arguing that the case was a “mass action” under CAFA, § 1332(d)(11)(B), because the “real parties in interest” in the suit included Mississippi consumers who numbered more than 100 and were completely diverse from defendants – thereby fulfilling CAFA’s numerosity and minimal diversity requirements. The Fifth Circuit held that while the State was a real party in interest in the suit, so were the consumers and that was sufficient to fulfill CAFA’s mass action removal requirements.
The Fifth Circuit’s “claim-by-claim” approach contrasts with an opinion from the Fourth Circuit which reached the opposite conclusion when confronted with a nearly identical price-fixing suit against the same defendant. In that case, the Fourth Circuit had applied a different, “whole complaint” rule which held that the State’s presence in the suit defeated removal. The Supreme Court’s decision will be one to watch both in terms of the Court’s general approach to CAFA and to the removability of state attorney general cases.