Two lines of cases bookend the divergent views on whether so-called “parens patriae” lawsuits can be removed to federal court under the Class Action Fairness Act. Parens patriae suits are civil actions brought by a state officer as the state’s legal representative to vindicate the state’s sovereign and quasi-sovereign interests, as well as the individual interests of the state’s citizens. Because they are asserted on behalf of unnamed persons by a representative, parens patriae suits share some of the hallmarks of “class” or “mass” actions. A debate has arisen, however, as to whether parens patriae suits may be removed under CAFA.

In West Virginia ex rel. McGraw v. CVS Pharmacy, Inc., the Fourth Circuit held that the West Virginia Attorney General’s suit against pharmacies alleging violations of West Virginia’s generic-drug pricing statute and Consumer Credit and Protection Act was not removable under CAFA as a class action because it was not “similar” enough to a true class action. The Attorney General is not a member of the class whose claims would be typical of class members’ claims; the relevant West Virginia laws do not contain numerosity or commonality requirements; and the state’s laws authorize actions without providing notice to the represented consumers, which would be essential in a class action seeking monetary damages. Although the panel’s ruling came over a strong dissent, a petition for en banc review was denied. A petition for a writ of certiorari is pending in the Supreme Court.

Significantly, the Fourth Circuit’s ruling departs from other decisions, including a decision from the Eastern District of Pennsylvania, West Virginia ex rel. McGraw v. Comcast Corp. There, the district court reached the opposite conclusion on CAFA removability in a suit by the West Virginia Attorney General alleging that a cable company’s requirement that its subscribers rent cable boxes only from it violated the state’s antitrust and consumer protection laws. In ruling, the district court relied heavily on a 2008 Fifth Circuit case, Louisiana ex rel. Caldwell v. Allstate Insurance Co. The Caldwell court similarly held that parens patriae actions may be removed under CAFA, noting that CAFA was enacted to prevent “jurisdictional gamesmanship.”