The Fifth Circuit Court of Appeals has determined that a Mississippi attorney general (AG) antitrust action against companies that sell liquid crystal display (LCD) panels may be removed to federal court under the Class Action Fairness Act (CAFA), because the suit fulfills the law’s requirements as a “mass action.” Mississippi v. AU Optronics Corp., No. 12-60704 (5th Cir., decided November 21, 2012). While agreeing with the district court that the case was not a class action under CAFA, the appeals court reversed its remand order, finding that the suit involves the claims of “100 or more persons” and thus that removal was proper.

A concurring judge objected to the Fifth Circuit’s use of a claim-by-claim approach to determine the real parties in interest, although this judge acknowledged that the approach “leads to the conclusion that Mississippi consumers are the real parties in interest with respect to the state’s restitution claim.” According to the concurrence, “almost every court that has independently considered [the Fifth Circuit’s] claim-by-claim approach has either questioned or disagreed with it,” particularly in the context of a suit brought by the state as parens patriae. Other courts assess a complaint “on its face” to decide the interests at stake in an action removed to federal court under CAFA.