### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

N o. 13-60686 c/w No. 13-60687

J I M H O O D, A ttorney G eneral of the State of Mississippi, ex rel. T he St a t e o f Mississippi; STATE OF MISSISSIPPI, Plaintiffs - Appellants

v. JP MORGAN CHASE & COMPANY; CHASE BANK USA, N.A, Defendants - Appellees

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ JIM HOOD, Attorney General of the State of Mississippi, ex rel. The S t a t e of Mississippi, Plaintiff - Appellant

v.
HSBC BANK NEVADA, N.A.; HSBC CARD SERVICES, INCORPORATED; HSBC BANK USA, INCORPORATED, Defendants - Appellees

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J I M H OOD, Attorney G eneral of the State o f M ississippi, e x rel. The State of Mississippi; THE STATE OF MISSISSIPPI, Plaintiffs - Appellants

v. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D Decem ber 2, 2013 Ly l e W . Cay ce Clerk Case: 13-60686 Document: 00512457664 Page: 1 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
CITIG ROUP, INCORPORATED; C ITIBANK, N.A.; DEPARTMENT S TORES NATIONAL BANK, Defendants - Appellees

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J I M HOOD, Attorney General of the State of Mississippi, ex rel. The Stat e o f Mississippi, Plaintiff - Appellant

v.
DISCOVER FINANCIAL SERVICES, INCORPORATED; DISCOVER BA N K ; DFS SERVICES, L

. L

. C .; AMERICAN BANKERS MANAGEMENT C OMPANY, INCORPORATED, Defendants - Appellees

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ JIM HOOD, Attorney General of the State of Mississippi, e x r e l. T he State of Mississippi, Plaintiff - Appellant

v. BANK OF AMERICA CORPORATION; FIA CARD SERVICES, N.A., Defendants - Appellees

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ JIM HOOD, At t o r n e y General of the State of Mississippi, ex rel. T he State of Mississippi, Plaintiff - Appellant

v. CAPITAL ONE BANK USA, N.A.; CAPITAL ONE SERVICES, L.L.C., Defendants - Appellees

2 Case: 13-60686 Document: 00512457664 Page: 2 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687

Appeals from the United States District Court f or the Southern District of Mississippi

Before OWEN, ELROD, and HAYNES, Circuit Judges. PER CURIAM: T h e A tto rn e y G e n e ra l o f M ississip p i (th e “S ta te ”) file d six in p a ren s
p a tria e co m p la in ts in t h e M ississip p i C h a n ce ry C o u r t a lle g i n g s i x c re d it ca rd

co m p a n ie s (“D e f

e n d a n ts”) v io la te d t h e M i ssissip p i C o n su m e r P ro te ctio n A ct (“M C P A ” ) b y c h a r g in g co n su m e rs fo r p ro d u cts th e y d id n o t w a n t o r n e e d

. D e fe n d a n ts re m o v e d , a rg u in g th a t th e re is fe d e ra l su b je ct m a tte r ju risd ictio n b o th b e ca u se th is i s a C la s s A ctio n F a i rn e ss A ct o f 2 0 0 5 (“C A F A ”) m a ss a ctio n

a n d b e ca u s e t h e S ta te ’s M C P A cla im s w e re p re e m p te d b y t h e fe d e r a l N a tio n a l B a n k in g A ct (“N B A ” ). T h e d istrict co u rt a g re e d , a n d d e n ie d th e S ta te ’s m o tio n s to re m a n d . T h e S t a te th e n file d t w o in t e rlo cu to ry a p p e a ls, o n e u n d e r C A F A ’s

a p p e a l p ro v isio n , 2 8 U

. S .C

. § 1 4 5 3 (c), a n d a n o th e r u n d e r 2 8 U .S .C

. § 1 2 9 2 (b ) to

re v ie w tw o q u e stio n s ce rtifie d b y th e d istrict c o u rt o n th e p re e m p tio n issu e
. W e
g ra n te d b o th a p p e a ls in t h is consolidated case. We conclude that neither CAFA

nor complete preemption b y t he NBA provides the basis for subject matter jurisdiction, and accordingly REVERSE and REMAND. I. BACKGROUND In June 2012, the State filed six c omplaints i n the Mississippi Chancery Court alleging D efendants v i olated t he MCPA. Miss. Code Ann. § 7 5 -2 4 -1

. T h e

co m p l a in ts a lle g e th a t D e fe n d a n ts a re “co m m it[tin g ] u n fa ir a n d d e ce p tiv e b u sin e ss p ra ctice s” i n v io la t io n o f t h e M C P A b y “m a rk e tin g , se llin g , a n d

a d m in iste r in g ” a n cilla ry p ro d u cts to “ unwi t t i ng” M i s s i s s i ppi c r edi t c ar d hold e rs. Thes e anc i l l ar y p ro d u c ts in clu d e fe e -b a se d se r v ice s to p ro te ct c u sto m e rs agai ns t

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u n a u th o rize d ch a rg e s a n d id e n tity th e ft, a s w e ll a s p ro d u cts th a t su s p e n d

p a y m e n t o b lig a tio n s u n d e r ce rta in c ircu m s t a n ce s
. T h e S ta te a lle g e s t h a t D e fe n d a n ts sig n u p cu sto m e rs fo r th e se se rv ice s w ith o u t th e ir k n o w le d g e o r

co n s e n t. T h e S t a t e a lso a lle g e s th a t D e fe n d a n ts e n g a g e in a n u m b e r o f d e ce p tiv e m a rk e tin g p ra ctice s, fa il to m a k e p r o p e r d isclo su re s to th e ir

cu sto m e r s re g a rd in g th e p ro d u cts, a n d e n ro l l cu sto m e rs w h o a re n o t e lig ib le to

re ce iv e th e b e n e fits o f th e se rv ice s. The State s eeks three forms of relief for these alleged violations: (1) an injunction preventing Defendants from engaging in these practices, (2) civil penalties for each violation of the M C PA, and (3) the disgorgement and restitution of any money Defendants made b y these practices. Only one of these services is at issue here: the Payment Protection Plan. A Payment P rotection Plan is an amendment to the credit card l oan agreement that suspends or cancels a customer’s obligation to repay credit card debt under certain c ircumstances—such as d e a t h, disaster, disability, unemployment, marriage, divorce, or ho s p i talization—without a dverse consequences to the
customer. If the r epayment obligation is suspended, the customer does n ot have
t o m a k e minimum payments, and is relieved of interest charges and l ate f e e s during t he relevant time p e r i o d

. If the repayment obligation is cancelled, the
customer is a lso r e lieved of his or her o bligation t o pay some or all of the l oan principal. These Plans are g overned by federal r egulations promulgated by the Office of Comptroller of t h e C urrency (“OCC”) under the N B A. 12 C .F.R. Part 37. The charges for the P lans are ordinarily calculated as a percentage of the customer’s outstanding c ard balance and customers pay a separate fee for these

s e r v i c e s each month. T he complaints e stimate t hat annual charges for these optional services range between approximately $68.40 t o $162.00 per customer. None of the complaints challenges the interest rates that the Defendants charge, and t he State does not assert that Defendants exceed the legal rate of i nterest.

4 Case: 13-60686 Document: 00512457664 Page: 4 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
Customers may receive a loan, in the form of a credit c ard, even if they elect not
to enroll in the P ayment Protection Plan. Customers c ontinue to receive credit even if they later decide to cancel their Payment Protection Plan. The State specifically disclaimed that there was federal question subject matter jurisdiction over any of the six actions: Nowhere herein d o e s t h e S t ate plead, expressly o r i mplicitly, any
cause of action or request any remedy that a r i s es under or is founded upon federal law, nor does i t bring this action on behalf of
a class or any group of persons t hat can be construed as a class. The State specifically disclaims any such claims that w ould support removal of this a ction to a United States District Court o n the basis of diversity or jurisdic t i o n a l m andates under t he Class A ction Fairnes s Act of 2005 (28 U.S.C. § § 1332(d), 1453, 171 1 -171 5). If this Complaint is a lleged to be a “ mass action” pursuant to 2 8 U.S.C. § 1 332, which the State denies, federal jurisdiction does n ot exist beca u s e the amount in controversy for any individual M i s s i s sippi consumer is less than $75,000, exclusive of i n terests and costs.

. . . The State expressly avers that the only causes o f a c t ion claimed, a nd the only remedies sought herein, are founded upon t h e statutory, common, and decisional laws of the State of Mississippi. Instead of bringing a CAFA mass action, t h e S tate pleaded that it was “bring[ing] this action in its sovereign and quasi-sovereign capacity on behalf of the State to protect citizen consumers of Mississippi.” Defendants removed the six cases t o the United S tate District C ourt for the Southern District of Mississippi, arguing that there was federal j urisdiction because each case was a class action, a mass action, or both under CAFA (“CAFA grounds”). Defendants further asserted that the state law claims were either

c o m p l e tely preempted by federal usury laws, or r aised a substantial federal question that must be resolved in accordance w ith those l a w s (“preemption grounds”). In s upport of removal, Defendants filed declarations explaining that the Payment Protection Plans are optional amendments to credit card holder agreements that modify the contractual terms for repayment by suspending or

5 Case: 13-60686 Document: 00512457664 Page: 5 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687 canceling a credit card holder’s obligations i n who l e o r i n part u nder certain circumstances. T he declarations also stat e t h a t P ayment Protection Plans extend additional cred i t b y relieving customers of (1) m inimum payment obligations, thus extending the terms of the loans, (2) the prospect of breaching

or defaulting, and (3) some or all o f t heir loan balances. The Plans a l s o a l low
customers to retain loaned funds on more favorable terms, and to c o n t i n u e to draw credit where they might otherwise not be able to do so. T he d eclarations f u r t h e r assert that t housands of Mississippi residents have p aid P ayment Protection Plan fees, and that these fees exceed $5,000,000 in the aggregate. The declarations are s ilent as to fees charged to any individual customers, and do not allege t h a t a n y customer has p a id $75,000 o r more in such fees. The declarations are also silent as to the balances owed by any o f t he c ustomers, and do not assert that any individual balances meet or exceed $75,000. The State filed motions to r e m a nd each case t o state c ourt. T he district
court consolidated the cases and stayed the case p e nding o ur decision in Mississippi ex rel. Hood v. AU Optronics Corp. , 701 F.3d 796 (5th C i r
. 2012), cert. granted , 133 S. Ct. 2736 (2013), after w hich the district court set a new briefing schedule. R e lying on both CAFA and preemption grounds, the district court denied all six of the State’s m otions to remand i n a single order (“Order”). The district court determined that it h ad subject matter j urisdiction because (1) the

c a s e s w e r e mass actions u n der CAFA, (2) the NBA, 12 U.S.C. §§ 85–86, and Depository I nstitutions Deregulation and Monetary Control Act (“DIDA”), 12 U.S.C. § 1831(d), preempted some of t he state law c l aims asserted by the State, and (3) it had supplemental jurisdiction to hear the other state claims. 1

1 The d is trict court d eterm ined that the N BA p reem pted claim s agains t D ef end ants Chas e, H SBC, Citigroup , Bank of Am erica, and C ap ital One. Becaus e D ef end ant D is cover is
a s tate- chartered bank , t h e d i s t r i ct court f ound that the N BA d id not ap p ly to the State’s action agains t D is cover. I ns tead , it d eterm ined that State’s claim s w ere p reem p ted by D ID A

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Based o n Defendants’ declar a t i o n s , the d istrict court found that the Payment Protection P l ans were intended t o modify the c ontractual terms for prepayment of an o utstanding c redit card b a l a n c e a nd the fees Defendants charged for t hose Plans were therefore interest b ecause they compensate Defendants for an extension of credit. The district court then determined “that the Stat e h a s c h a l lenged the rate of the fees being c h arged for P ayment Protection Plans, and has impliedly alleged t hat those fees a re e xcessive in light of the benefits b eing d erived by the credit card holders who h a ve b een enrolled in such plans.” The d istrict court con c l u d e d t h at federal usury l a w therefore preempted the State’s state law claims. The State then p etitioned this c ourt for permission to file an interlocutory appeal o f t h e O rder, which we granted. 2 Because the district court could properly deny remand if either CA F A o r t h e NBA provides federal subject matter jurisdiction, we examine each in turn. II. STANDARD OF REVIEW We review a district court’s denial of a motion to remand for lack of subject
matter j urisdiction d e novo
. M umfrey v. CVS Pharmacy, Inc ., 719 F.3d 392, 397 (5th Cir. 2013) ( citing Allen v
. R & H Oil & Gas Co. , 63 F.3d 1 326, 1336 (5th Cir.

D ef end ants as s ert, and the State d oes not contes t, that the s am e p reem p tion analys is ap p lies f or both the N BA and D I D A. We accord ingly as s es s D is cover’s claim s und er our N BA analys is

.

2 The Stat e f

i l e d t w o p etitions f

or interlocutory ap p eal. Firs t, the State s ought p erm is s ion to ap p eal und e r C A F A ’ s interlocutory ap peal provis ion, 28 U

. S. C

. § 1453( c)

. Although the State as s erted that w e have juris d iction und er 28 U

. S. C. § 1453 to review both the CAFA a n d p r eem p tion ground s f or d enying rem and , it als o as ked the d is trict court to certif y t h e p reem ption ques tion. The d is trict court d id s o on Sep tem ber 12, 2013, and has
s tayed the cons olid ating p roc e e d ing p end ing our d ecis ion regard ing thes e tw o interlocutory ap p eals

. The d is trict court cer t i f i e d t he f ollow ing ques tions : ( 1) D o the Paym ent Protection Plans at is s ue in the s ubject law suits cons titute “interes t” as that term is d ef ined by 12 C. F. R

. § 7

. 4001( a) ? ( 2) Has the State of M is s is s ip pi alleged that the rate being charged f or the Paym ent Protection Plans w a s exces s ive, and theref ore us urious , f

or the p urp os e of im p licating p reem p tion und er the N BA?
7 Case: 13-60686 Document: 00512457664 Page: 7 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687 1995)). Any ambiguities are construed against removal and in favor of remand
to state court. Id. (citing Manguno v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 723 (5th Cir. 2002)). “The right of removal i s entirely a creature o f statute and a suit commenced in a state court must r emain there until cause is shown for its transfer under som e a c t o f Congress. These statutory procedures for removal are to be strictly construed.” Syngenta C rop Prot., Inc. v. Henson , 537 U.S. 28, 32 (2002) (internal quotations a nd citations omitted). “It is to be

pres u m e d t h a t a cause lies outside this limited [ federal] jurisdiction and the burden o f establishing the contrary rests upon the p a rty asserting jurisdiction.” Kokkonen v. G uardian Life Ins. Co. of Am. , 5 1 1 U.S. 375, 377 (1994) (internal citations omitted); see a lso Mumfrey , 719 F.3d at 397 (citing Acuna v. Brown & Root, Inc. , 200 F.3d 335, 339 (5th C ir. 2000)). This is especially true where, as here, the State brings a case in t he courts of its o wn state. See Franchise Tax Bd. v. Constr. Labor ers Vacation Trust , 4 63 U.S. 1, 21 n.22 (1983) (“[C]onsiderations of comity make us reluctant t o snatch cases w hich a State has brought from the courts of that State, unless some clear rule demands it.”). III. CAFA CAFA provides federal jurisdiction over a “mass action,” which is defined
as any civil action

. . . in which monetary relief claims of 1 00 or more persons a re proposed to b e tried jointly on the ground t hat t h e plaintiffs’ c laims involve c o m m o n q uestions of law or fact, except that jurisdiction shall exist o nly over t h ose plaintiffs w hose c laims in a mass action satisfy t he jurisdictional amount requirements under subsection (a).
28 U.S.C. § 1 3 3 2 (d)(11)(B)(i); see also A U Optronics , 701 F.3d at 798–99. Subsection (a) states that “[t]he district c ourts shall have original jurisdiction of all c i v i l a ctions where the matter in controversy exceeds the sum or value of $75,000, exclusive of i nterest and costs

. . . .” 28 U .S.C. § 1332(a). The case must

8 Case: 13-60686 Document: 00512457664 Page: 8 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
also have an aggregate amount in controversy of at least $5,000,000. Louisiana ex rel. Caldwell v. Allstate Ins. Co. , 536 F.3d 418, 430 (5th Cir. 2008). In order
to distinguish b etwe e n C A FA’s two amounts in controversy, we refer to the $5,000,000 requirement as t he “aggregate a mount i n c o n t r o versy” and the $75,000 requirement f rom § 1332(a) a s t he “individual amount in controversy.” As the party seeking removal, Defendants b ear the burden of p roving both
amounts in controversy. See Abrego Abrego v. Dow C hem. Co. , 4 43 F.3d 6 76, 686 (9th Cir. 2006). In Abrego , one thousand one hundred and sixty Panamanian banana p lantation workers f iled a c ase in state court against the defendant. I d.
at 6 78. The defendant r emoved, and the plaintiffs s ou ght a remand to state court in an interlocutory appeal. There, as here, the parties raised arguments about who should bear t h e b u rden o f proof for the individual amount in controversy requirement. The Ninth Circuit began by examining the plaintiffs’ complaint, which did not s eek a specific amount of damages, although they did plead t hat the amount in controversy exceeded $25,000. The defendant a sserted in its notice o f removal that “[g ] i v e n t h e n ature of the injuries claimed by Plaintiffs and the request for punitive damages,” a review of plaintiffs’ co m p l a i nt indicated that b oth the aggregate and individual amount in con t r o v ersy requirements were s a t i s f i ed. Id. at 6 89. The Ninth Circuit nonetheless held that the defendant had not met its b u r d en because it had not set forth any “underlying facts” t o support this assertion. Id. The Ninth Circuit thus concluded that the removing defendant f ailed to prove that any o f the plaintiffs satisfied CAFA’s individual amount in controversy requirement. Id. at 686. The N i n t h Circuit e mphasized the strong presumption against removal, and

e x p la in e d th a t re m a n d w a s a p p ro p ria t e b e ca u se th e re w a s n o su b je ct m a tte r

9 Case: 13-60686 Document: 00512457664 Page: 9 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687 ju risd ictio n
. I

d

. a t 6 9 0

– 9 1

. 3 Likewise, Defendants have not met their b urden to pro v e that the i n d i vidual amount in controversy requirement is satisfied here. The p l a i n language o f § 1332(d)(11)(B)(i) requires “plaintiffs” to satisfy t h e individual amount in controversy requirement. Given this explicit statutory language, it naturally follows that at least one plaintiff must satisfy the individual amount in controversy requirement in order f o r t he district court to a djudicate a case or controversy. D efendants h ave failed t o prove tha t e v e n a single p laintiff here satisfies this requirement, and we therefore need not consider whether at least
100 plaintiffs must each satisfy the $75,0 0 0 j u r isdictional amount in controversy requirement in § 1332(a). 4

3 D ef end ants cite our d ecis ion in Preston v. Tenet H ea lthsystem M

em ’l

. M ed. Ctr. , and argue that the State s hould bear the burd en of p roof f or the ind ivid ual am ount in controvers y. 4 8 5 F. 3d 793 ( 5th C ir. 2007)

. Preston is inap p licable here as it d ealt w ith the b u r d e n o f p roving an excep tion to juris d iction und er § 1332( d ) ( 4)

. In contras t, the ques tion here involves the am ount in controvers y f ound in § 1332( a)

. As w e have cons is tently held , the p arty s eek ing
rem oval bears the burd en of p roving § 1332( a)

. See, e. g. , Ma nguno , 276 F

. 3d at 723.

4 O ur court has not yet ad d res s ed w hether at leas t 100, or only one of the p l a i n t i f f s
m us t s atis f

y the i n d i v i d u a l am ount in controvers y requirem ent in ord er to conf er CAFA juris d iction. O ther courts that have conf ronted this ques tion h a v e l a r g e l y a void ed determ ining how m any p laintif

f s m us t s atis f

y the ind ivid ua l a m ount in controvers y requirem ent. See Low ery v
. A l a ba m a Pow er Co. , 483 F. 3d 1184, 1203–04 ( 11th Cir. 2007) ( “Becaus e w e hold in p art VI, i nf

ra , that the d ef

end ants have not es tablis hed the $5, 000, 000 aggregate am ount in controvers y, w e need not d ecid e t o d a y w h e t h e r the $75, 000 p rovis ion m ight yet create an ad d itional thres hold requirem ent that the p arty bearing the burd en of es tablis hing the court’s juris d iction m us t es tablis h at the outs et, i. e. , that the claim s of at leas t one of the p laintif f s exceed $75, 000. ”) ; A brego , 443 F. 3d at 689 ( “D ow , how ever, has not es tablis hed that even one p laintif f s atis fies the $75, 000 juris d ictional am ount requirem ent of § 1332( a) , ap p licable to
m as s actions by virtue of § 1332( d) (11) (B) ( i)

. ”) ; M i ssi ssi p p i ex rel

. H

ood v
. Entergy M

issi ssi pp i , Inc. , 3: 08- C V7- 80 H TW- LRA, 2012 WL 3704935, at *13 (S. D

. M is s
. Aug. 25, 2012) ( “This court f ind s that w hether the $ 7 5 , 0 0 0 am ount in controvers y requirem ent p er claim is a juris d ictional requirem ent or an excep tion w hich exclud es sp ecif ic p laintif

f s ’ claim s f

rom CAFA j uris d iction is im m aterial here. E ntergy has p rovid ed s uf f ic i e n t e v i d e nce that num erous plaintif f s, if
cons id ered real p arties in interes t, have d am ages claim s f or at leas t $75, 000. ”) ; A rm stea d v
. M ul ti

- Chem G roup , LLC , No. 6: 11- 2136, 2012 U

. S. D is t. LEX IS 71543, at *36 ( W. D

. La. M ay 21, 2012) ( “[ D ] ef

end ants have failed to s atis fy their burd en of p roof d em ons trating that any s ingle p laintif

f ’s claim exceed s this court’s $75, 000. 00 juris d ictional m inim um
. A s w a s t h e 10 Case: 13-60686 Document: 00512457664 Page: 10 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
In order to d etermine whether a n y p l a i n t i f f s a t i s f i e s t h e i n d i v i dual amount in controversy r equirement, w e first address who the p ossible p l aint i f fs are in this action. Based on our decisions in Caldwell , 536 F.3d at 430, and A U Optronics , 701 F.3d at 798–800, Defendants argue that the individual customers who paid for these ancillary services a re the re a l parties i n interest for the State’s restitution claims. Assuming arguendo that this is so, D efendants have
not presented evidence to sh o w t h a t any of these c ustomers satisfies the individual amount in controversy requirement. 5 For each customer, the amount in controversy equates to the amount that t he particular c u stomer has paid in fees for Defendants’ ancillary services. 6 See Garcia v. Koch Oil Co. of Tex., Inc. ,

cas e in Abrego , regard les s of w het h e r r e m oval und er CAFA w as p rop er bas ed on the $5, 000, 0 0 0 a g g regate am ount in controvers y , the cas e cannot go f orw ard unles s there is at leas t one p laintif

f w hos e claim s can rem ain in f ed eral court. ” ( internal quotations and citations
om itted ) )

. As none o f t h e plaintif fs here s atis f

ies this requirem ent, w e need not res olve the is sue of w hether m ore than o n e p laintif f m us t s atis f

y the ind ivid ual am ount in controvers y requirem ent tod ay.

5 We recognize that the Sup rem e Court is currently revie w ing our d ecis ion in AU O ptroni cs , and m ay d eterm ine that the cus tom ers are not prop erly view ed as the real p arties in interes t f

or CAFA. Becaus e w e f ind that juris d iction is lack ing here regard les s of w hether the c u s t o m e r s are cons id ered real p arties in interes t, a d ecis ion by the Sup rem e Court contrary to the one that w e reached in A U O ptroni cs on that is sue w ould not im p act our res ult here.

6 D ef

end a n t s a s s ert that the State als o s eek s cancellation of cus tom ers ’ entire cred it
c a r d b alances , w hich w ould p lace m ore than $75, 000 in controvers y for certain cons um ers
. This argum ent mis characterizes the State’s claim s
. N ow here in the com p laints d oes the State
s eek cancellation or d is gorgem ent of the cus tom ers ’ entire cred it card balances

. Ins tead , the State seek s civil p enalties and “m onies acqui red by D ef end ants by m eans of any p ractice p rohibited by the CPA. ” T he cus tom ers ’ cred it card balances are loans f rom D ef end ants , not “m onies ” D e f

end ants acquired through violating the M CPA. We theref ore agree w ith the State that it i s o n l y reques ting res titution f or the f ees that D ef

end ants acquired through thier various p ractices , rather than the cred it card balances

. M oreover, even as s um ing a rguendo that the S t a t e is s eek ing cancellation of thes e balances , there is nothing in the record ind icating that any cus tom er’s cred it card balance exceed s $75, 000. Ind eed , D ef end ants ’ ow n d eclarations are s ilent as to the am ounts of thes e balances

. As D ef end ants d o not pres ent any evid ence regard ing the am ounts that thes e cus tom ers ow e, they have not es tablis hed that any of thes e cred it card balances w ould s atis f y the ind ivid ual am ount in controvers y requirem ent.
11 Case: 13-60686 Document: 00512457664 Page: 11 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
351 F.3d 636, 640 (5th Cir. 2 003) (explaining t hat “the amount in controversy is measured by t h e v alue of the object of the litigation”) (quoting Hunt v. Wash. State Apple Adver. Comm’n , 432 U.S. 333, 347 (1977)). T h e S t a t e e x p r essly denies r epresenting individual customers, and ass e r t s that it does not know how much these i ndividual c redit card holders have paid in f ees. The State asserts in its complaints that none of the individual customers
sat i s fies the individual amount in controversy requirement b ecause, the State contends, t he annual fees f or each consumer avera g e b e t w e e n $ 6 8

. 40 t o $162.00. 7 Based on the State’s contentions, it w o uld take an individual customer hundreds of years to reach the individual amount i n controversy requirement. Although Defendants filed declarations a sserting that C AFA’s a ggreg a t e amount in controversy was met, they did not make a n y similar statements regarding whether any individual credit c a r d holders s atisfy the individual amount in controversy r equirement. We find this omission telling, given that Defendants have ready access t o information r egarding their own customers and could easily
assert that just one o f those customers satisfies this requirement. Instead, Defendants as k u s t o require the State to prove a negative, based on evidence outside of the State’s control, about unknown parties that it express l y denies representing. We decline to do so. Defendants have failed t o p r o vide any evidence indicat ing that any of the credit card holders satisfies the individual
amount in controversy, and have thus failed to meet their burden to p r ove this requirement. Likewise, the State is not a mass action plaintiff that s at i s f i e s the individual amount in controversy requirement. Defendants argue that in

7 The f ees are charged as a p ercentage of the cus tom er’s m onthly cred it card charges

. The State alleges that thes e f ees are around 0. 9% , an d b a s e s its annual es tim ates on a cus tom er w ho charges $1, 000 p er m onth to the card

. 12 Case: 13-60686 Document: 00512457664 Page: 12 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
addition to b ringing claims on behalf of Mississippi consumers, the State also brought claims for restitution and civil penalties on i ts own behalf. Defendants
assert that these c laims w here the State itself is the real party in interest exceed the individual amount in controvers y r equirement and that, as a result, there is at least one plaintiff that satisfies this requirement. We disagree. First, the State does not allege t hat it, or any of its employees, had credit

c a r d a c c o unts for which it paid Defendants f or any of the ancillary services. Thus, any claims that the State h as against Defendants could only be b ased on the f e e s p a i d by the individual c ustomers. S econd, under our precedent the State is not the real party in interest with r espect to this claim for restitution. In Caldwell , the S t a t e o f Louisiana filed a p arens patriae action against a number o f insurance companies alleging violations of the Louisiana Monopolies Act. 536 F.3d at 421–22. W e held that the case was properly removed under CAFA because the state w as asserting c laims related to the interests of “citizen policyholders,” rather than its own s overeign interests. Id. at 424–27, 430. We concluded that the 100 or more Louisiana citizens—rather t han the state—were the plaintiffs for th o s e c l a i m s. Id. at 430. Here, the State l ikewise asserts a restitution claim on behalf of the c redit c ard holders who paid t he contested fees. U nder C

aldwell , the real parties in i nterest are therefore t hese custo m e r s , rather than the State. Even assuming that one could l iberally construe the restitution claims as belonging to t he S t a t e i t s e lf, it is still not a mass action plaintiff that could support subject matter jurisdiction. Any claims for which the State is the sole party in interest could not possibly be mass action claims, as they are brought by a single plaintiff on its own b e h a l f , r a t h er than a mass of plaintiffs. 8 As a

8 As w e have p revious ly held , the State is entitled to s ever and rem and any claim s f or
w hich it is the real p arty in interes t. In Ca l dw el l w e held that juris d iction w as p res ent bas ed
13 Case: 13-60686 Document: 00512457664 Page: 13 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687 result, neither the civil penalties nor t he restitu t i o n c l aim provides the individual amount in controversy require m e n t necessary for a C AFA mass action. 9
In sum, we a g re e w i th t h e r e a s o n in g o f o u r siste r circu it in A b r eg o , a n d

a cco rd in g ly h o l d th a t th e r e is n o j u r isd ictio n u n d e r C A F A w h e r e , a s h e re , D e fe n d a n ts h a v e fa ile d to p u t f o rth e v id e n ce t h a t a n y p la in tiff sa tisfie s t h e in d iv i d u a l a m o u n t in co n tro v e rsy re q u ire m e n t. IV. PREEMPTION W e n o w turn t o whether the State’s MCPA claims are preemp t e d b y federal law, and conclude that they are not. “A pla i n t i f f i s the master of his

on our d eterm ination that the claim s f or d am ages w ere not brought on behalf of the s tate. 536 F. 3d at 429–31. We then exp lained that “Louis iana is als o s eek ing the rem ed y of injunctive relief

. I f Louis iana were only s eek ing that rem ed y, which is clearly on behalf of the State, its argum ent that it is the only real party in interes t w ould be m uch more com p elling. ” I d. at 430. As a res ult, w e lef

t op en on rem and the p os s ibility for the dis trict court to s ever thos e claim s and rem and them back to s tate court. Id. H ere, the State reques ted that all claim s in w hich the State is ind is p utably the real p arty in interes t be s e v e r ed and rem and ed to state court. S u c h s e verance w ould be cons is tent w ith our hold ing in Ca l dw el l , w here w e ins tructed the d is trict court to cons id er s evering and rem and ing claim s “clearly [ brought] on behalf of the State. ” Id

. A s the d is trict court here correctly d eterm ined , the State is als o the sole real p arty in interes t w ith res p ect to the civil p enalties becaus e thos e claim s can only be brought by the State through its Attorney G eneral. See Mis s
. Cod e Ann. § 75- 24- 9; § 75- 24- 19( 1) ( b)

. Thes e claim s cannot s up port s ubject m atter juris d iction und er CAFA.

9 D ef end ants als o argue that the d is trict court could exercis e s up p lem ental j uris d iction
over the ind ivid ual cus tom ers w ho d o not s atis f y the ind ivid ual am ount in controvers y requirem ent. We d is agree. Firs t, s up p lem ental juris d iction is p os s ible only “w here the other elem ents of juris d iction are p res ent and at leas t one nam ed p laintif f in the action s atis f

ies the
am ount- in- controvers y requirem ent. ” Exxon Mobi l Corp

. v. A l l ap a tta h Serv s. , Inc. , 545 U

. S. 546, 549 ( 2005)

. Becaus e w e hold that none of the plaintif f s satis f y the ind ivid ual am ount in controvers y requirem ent, the d is trict court could not exercis e s up plem ental juris d iction “over the claim s of other p laintif f s in the s am e Article III cas e or controvers y, even if thos e claim s are f or les s than the juris d ictional a m o u n t s p e cif ied in the statute s etting f orth the requirem ents f

or d ivers ity juris d iction. ” Id. Even as s um ing a rguendo that one of the p laintif f s d id s atis f

y the ind ivid ual am ount in controvers y requirem ent, the exerc i s e of s up p lem ental juris d iction here w ould be an end

- run around CAFA, w hich c o n t a i n s the exp licit s tatutory requirem ent that “juris d iction s hall exis t only over thos e plai n t i f f s w h o s e claim s in a m as s action s atis f

y” the $75, 000 requirem ent. 28 U

. S. C. § 1332( d ) ( 11) ( B) ( i)

. 14 Case: 13-60686 Document: 00512457664 Page: 14 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687 complaint and may a llege only state law causes of action, even when federal remedies might also e xist.” Elam v. Kansas C ity S. Ry. Co. , 6 35 F.3d 796, 803 (5th Cir. 2011). “[A] defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, t ransform the action into one arising under federal law, thereby selecting the forum in which the claim shall be l itigated.” Caterpillar Inc. v. Willia m s , 482 U.S. 386, 399 (1987). A n e x c e p t i o n t o t h e w e l l -pleaded complaint r u l e a r i s e s w h e n Congress s o completely preempt[s] a particular area that a ny civil complaint r aising this select group o f cla i m s is n e cessarily federal in character.

. . . The question i n c omplete preemption analysis is whether Congress intended the federal cau s e of action t o be t h e e x c l u s i ve cause of action for the particular claims asserted unde r stat e l a w
. . . . [C]omplete preemption is a narrow e xception to t h e well-pleaded complaint rule. Elam , 635 F.3d at 803 (internal quotations and citations o mitte d )

. T h u s , the State’s claims are preempted only if federal law p r ovides the “exclusive cause of action” for its claims. Beneficial Nat’l Bank v. Anderson , 539 U.S. 1, 11 (2003). Statute s t h a t authorize removal, including those that do so through complete preemption, are meant to be strictly construed. See Syngenta , 537 U.S.
at 3 2; s ee also Healy v. Ratta , 29 2 U

. S

. 263, 270 (1934) (“Due regard for the rightful independence o f state governments

. . . requires that [federal courts] scrupulously confine their own jurisdiction to the p recise limits which the
statute has defined.”). In a ddition, “considerations of comity make us reluctant
to snatch cases which a State has brought from the courts of that State, unless

some clear rule d e m a n d s i t.” See Franchise Tax Bd. , 463 U.S. a t 2 1 n.22. Preemption i s unwarranted here because Defendants fail to identify a clear rule that demands removal u nder the applicable Supreme Court precedent, statute, or regulations.

15 Case: 13-60686 Document: 00512457664 Page: 15 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
A. Defendants argue t hat the State’s claims are completely preempted based

on the Supreme Court’s decision in Beneficial National , 539 U .S. at 11

. Beneficial National held that state l a w usury claims a gainst nationally chartered banks a re completely preempted b y §§ 85–86 of the NBA. Id. at 9–11. Usury c l aims i nvolve allegations that the lender is c h a r g i n g t oo much in interest. See id. at 9; 44B Am. Jur. 2d, Interest and Usury § 81. The plaintiffs in Beneficial National “sought relief for u s u r y v i olations and claimed that petitioners charged

. . . excessive interest in viol a t i o n ” o f state law and thus “expressly charged petitioners with usury.” Id. at 9 (internal quotation marks omitted). The Supreme Court explained that §§ 85–86 of the NBA are designed
to first “set[] f

orth the s u b s t a n tive limits on the r ates of interest that national banks may charge” and then “set[] forth the e lements of a usury claim against

a national bank.” Id. 1 0 The Supreme Co u r t c oncluded that these sections therefore p rovide t he exclusive cause of action f or such claims against national banks, and thus preempt any state law usury claims. Id. a t 11. Beneficial National di d n o t h old that the NBA preempts all state regulation of national banks. Instead, the holding was limited to state law usury claims. Indeed, the S u preme Court specifically f ramed “ t he dispositive question” in t hat case as “[d]oes the National Bank Act provide t h e e x c l usive

cause of action for usury claims against nationa l b a n k s?” Id. at 9. S ince its decision in Beneficial National , the Supreme Court has “made clear that federal control shields national banking from unduly burdensome and d uplicative state regulation.” Watters v. Wachovia Bank, N.A. , 550 U.S. 1, 11 (2007). Although

1 0 Section 85 s p ecif

ies the am ount of interes t t h a t n a t ionally chartered bank s m ay charge, and § 86 ad d res s es “[ t] he tak ing, receiving, res erving, or charging a rate of interes t greater than is allow ed by s ection 85 of t h i s t i tle, w hen know ingly d one, s hall be d eem ed a f orf eiture of the entire interes t

. . . . ”)

. 12 U

. S. C. §§ 85–86.
16 Case: 13-60686 Document: 00512457664 Page: 16 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
this federal control limits the ways i n which state law c an regulate national banks, it is n ot meant to be a blanket b an on any state law t h at might impact a national bank. As the Supreme Court explained in Watters , [f]ederally chartered banks are s u b j e c t t o s t a t e l a w s o f g e neral appli c a t i on in their daily business t o the extent s uch laws do n ot conflict with the letter or the general purposes of the NBA. For example, state usury l aws govern the maximum r ate of interest

n a tional banks can charge on l oans
. . . . However, the States c a n exercise no control over [national banks], nor in a ny wise affect their operation, e x c ept i n so far as Congre s s may see proper to permit. Any thing beyond this is an abuse, because it is the u s u r p a t ion of power which a single State cannot give. Id. a t 11 (internal citations and quotation marks omitted). Defendants a rgue, and the district court agreed, that the fees associated with the Payment Protection Plans were “ interest,” and that by challenging Defendants’ practices in charging t h ese fees, the S tate was implicitly alleging

usury claims. The first question, then, is whether t he Defendants have established that the fees associated with these Plans are “interest.” B

. Neither the NBA nor the regulations promulgated by the OCC e xplicitly indicate t hat the Payment Protection Plan fees are “interest.” The NBA does not define the term. The OCC’s regulations define “interest” to include

any payment compensating a c r editor or prospective creditor for an extension o f credit, making available of a l i ne of credit, o r any default or breach by a borrower of a c ondition upon which credit was extended. It includes, among other thi n g s, the f ollowing fees connected with credit extension or availability: numerical periodic rates, late fees, c reditor-imposed not sufficient fun d s (NSF) fees charged w hen a b orrower tenders payment on a debt with a c heck drawn o n insufficient funds, overlimit fees, annual fees, c a sh advance fees, and membership f ees. It d oes not ordinarily include
a p p r a i s a l f

e e s , premiums and commissions a t t r i b u t a b l e t o i n s u r a n c e g uaranteeing r epayment of any extension of credit, f i n d e r s ’ f e e s , f e e s for document preparation or notarization, or fees i ncurred to obtain

17 Case: 13-60686 Document: 00512457664 Page: 17 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687 credit reports.
12 C.F.R. § 7.4001(a). In Smiley v
. C i t i bank (S.D.), N .A , the Supreme Court deferred to this definition of interest. 517 U.S. 735, 7 41–42 (1996). In doing so, th e S u p r eme C ourt recognized t hat not all fees associated w ith loans are interest. Id

. As the Supreme Court explained, [t ] o b e s u r e , i n the broadest sense all payments connected in any way with the loan i ncluding reimbursement of the lender’s costs in processing the application, insuring the l o a n, and appraising t h e collateral c a n b e regarded as compensating [ the] creditor for [the] extension of credit. B ut it seems to us quite possible and rational to distinguish, as the regulation does, between those charges that a re specifically a ssigned t o such expenses and those that are assessed for simply making the loan, or for the borrower’s default. Id. (internal quotation marks omitted). Section 7.4001(a) draws a line “between (1) ‘payment compensating a creditor or prospective creditor for a n extension of credit, m aking available of a line of c redit, o r any default or breach by a borrower of a condition upon which c redit was extended,’ and ( 2) all other payments.” I d. at 741; s e e also Phipps v. F.D.I.C. , 417 F.3d 1006, 1012 (8th Cir. 2005). 1 1 Only

1 1 D ef end ants m ak e tw o argum ents that the O CC d ef ines Paym ent Protection Plans as inter e s t , a n d s ugges ts that this d ef inition is controlling. Both are unavailing. Firs t, D ef end ants argue t h a t t h e Plans are “d ebt s us p ens ion agreem ents ” or “d ebt cancellation contracts ” w ithin the m eaning of O CC’s regulations , and that an OCC inte rp retive letter d ef ines thes e f

ees as com p ens ation f or the cred it r i s k t h a t it und ertak es in m ak ing a loan. This interp retive letter never tak es a s tance on w hether or not thes e agreem ents cons titute i n t e r e s t

. Ins tead , the letter m erely exp lains that “p rovid ing d ebt s us p ens ion p rod ucts i n connection w ith a bank ’s cred it card bus ines s is p erm is s ible f or the B ank , ” becaus e “[ a] d ebt
s us pens ion p rod uct s im p ly interrup ts the obligation to p ay f or a sp ecif

i e d t im e, rather than cancels it. From the bank ’s p ers p ective, a d ebt s us p ens ion p rod uct p rovid es a m echanis m f or the bank to manage and obtain com p ens ation for the cred it ris k that it und ertak es in m ak ing
a loan. Thus , it is a very logical o u t g r o w t h of the bank ’s exp res s lend ing authority. ” O CC Interp

. Ltr. 903, 2000 WL 33128696, at *2, 3 ( D ec. 28, 2000)

. Moreover, even if the letter d id tak e a p os ition on w hether thes e a g r e e m e nts are interes t, s uch a d ecis ion would not be entitled to the sam e jud icial d ef erence as O CC’s regulations

. In Sm i l ey , the Court em p has ized that it w as d ef

erring to the d ef

inition that the O CC p rom ulgated in a regulation. Sm i l ey , 517 U

. S

. a t 741–43. Interp retive letters d o not receive this s am e level of d ef erence. See U

ni t e d Sta tes v
. M

ea d Corp

. , 533 U

. S. 218, 234 ( 2001) (exp laining that “Cus tom s ruling letters d o not f all w ithin Chev ron ” but “that an agency’s interp retation m ay m erit s om e def erence w hatever
18 Case: 13-60686 Document: 00512457664 Page: 18 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687 fees that fall into this first category are “interest” under the NBA. The State provides se v eral arguments for why the Payment Protection Plan fees fall outside of t he § 7.4001(a)’s definition of interest. First, the State
argues that th e se charges a re best viewed as fees associated with p roviding a separate credit service, rather than fees for the e xtension of c redit. Customers can receive the loan without signing u p for the Protection Payment Plans, and

may continue to use the line of credit even if t hey stop p articipating in t he Plans. Customers pay a separate monthly fee in order to receive this service. Thus, the fees for the Payment P rotection Plans can be viewed as char g e s s p e c ifically assigned t o cover an ancill a r y service, rather than g eneral charges for the extension of credit. S ee West Virginia ex rel. McGraw v. JPMorgan Chase & Co. , 8 4 2 F

. Supp. 2 d 984, 991–92 (S.D. W

. Va. 2012). The State also argues t h e s e Plans a re more akin to fees for insurance, which a r e e x e mpted from the definition o f interest, than to f ees for the e xtension of credit. Like insurance, the Plans are m eant to protect customers in the event that c ertain f uture situations arise by keeping open their lines of credit a nd suspending certain penalties attached to t he loan. And like insurance, the P lans a re supposed to benefit the bo r r o wer as well a s the lender by providing credit protection under certain circumstances. In contrast, interest provides a benefit only to the lender. Defendants point out that Payment Protection Plans m odify the repayment t erms of t he loan agreements a nd are therefore “ n o l e s s a part of lending than any o f t he va r i o u s o t h e r t erms
. . . that are part of a l oan agreement.” A s t h e Supreme Court has explained, however, “in the broa d est

its f orm , given the s p ecialized exp erience and broad er i n v e s t i g a t i o n s a n d i nf orm ation available to the agency” ( internal quotation m ark s om itted ) )

.

19 Case: 13-60686 Document: 00512457664 Page: 19 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687

sense all payments c onnected in any way with the loan . .

. can be regarded as compensating [the] creditor fo r [ t h e ] extension of credit.” Smiley , 517 U.S. at 741–42. Likewise, in a broad sense all ancillary p roducts or p lans that affect the repayment terms o f the loan can be seen as p a rt o f the l oan agreement, but it does no t n e cessarily follow t hat the f ees associated with those products are interest. Here, D efendants bear a h eavy burden o f proving t h at removal is appropriate. See Manguno , 276 F.3d at 723 (noting that “[a]ny ambiguities are construed against removal because the removal statute sho u l d b e strictly construed in favor of remand” (citation omitted)). At best, Defendants have only shown that the Payment P rotection Plan fees could conceivably fi t w i t h i n the d e f i n i t ion of “interest.” Defendants have failed to show that a clear rul e demands removal, and remand is therefore appropriate. S ee Franchise Tax Bd. , 463 U.S. at 21 n.22. C. Even assuming arguendo that the f e e s a s s o c i a t e d w i t h P a y m e n t P r o t e c t i o n Plans were interest, the State’s claims would not be p r e e m p t e d because the State never alleges t hat D efendants charged an improper rate for the P ayment Protec t Plans, a nd thus does not allege that Defendants charged t oo much in interest. 1 2
None o f t h e S tate’s claims can be fairly c onstrued as allegations that Defendants violated the NBA. The State never alleges t hat Defendants charge

an i nterest rate greater than allowed by § 85. In fact, the State never makes any assertions about D efendants’ r ate of interest. Nowhere in the State’s complaints is there any calculation of the total rate of interest t hat Defendants charge, or

1 2 The State’s cl a i m s f all into three bas ic categories : ( 1) claim s f or unf air mark eting p ractices , ( 2) non- d is clos ure claim s, and ( 3) claim s that the ancillary s ervices had little or no value for certain cus tom ers
. Only this th i r d category of claim s can p os s ibly be cons id ered allegations that D ef

end ants charged us urious rates

. As a res ult, w e review this third category.

20 Case: 13-60686 Document: 00512457664 Page: 20 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687

any description of the legal rate of interest. While not d i s p o s itive, w e find it telling that the complaints omit these vital elements of a usury claim, and do not reference or cite the portions of Mississippi law that address usury. Instead, the State complains of Defendants’ unfair and deceptive practices. In d e e d , t he
gravamen of the State’s complaints is that the cus t o m ers do not actually understand t hat they have agreed to purchase these services and are charged without their consent, not that they are being charged too much. Neither § 85

nor § 86 p rovides a cause of action for these kinds of consumer protection claims. See Bernhard , 5 23 F.3d at 5 53 (“[W]e must determine that Congress intended

a federal act to p rovide t he exclusive cause of action for t he claims a t issue to hold that it completely preempts state law claims.” (citation omitted)). Defendants a rgue that the State is a lleging t hat the Payment Protection Plans have little v alue to certain customers, and in doing so is implicitly arguing that the f

ees are disproportionate to the v alue conferred on those customers. In

essence, Defendants argue, this is a c l a i m t h a t D e f e n d a n t s o v e r c harge customers for these services. We disagree. Although the two issues are linked, there is a difference between alleging that certain customers a re being charged too much, and alleging that they should have never been c harged for the service in the first

p l ace. The State makes only the latter claim, and when viewed in the c o n t e x t of t h e S t a t e ’ s marketing a nd non-disclosure c l aims, it does not appear to challenge Defendants’ fees as “usurious.” The Stat e i s not alleging that Defendants should never be allowed t o charge for Payment Protection Plans, or that the P lans’ fees are themselves excessive; instead, the State takes issue with the fact that Defendants allegedly enroll certain customers i n these Plans when the customers are not in a position to benefit from the Plans. 1 3

1 3 Even the d is trict cour t r e c o g n i zed that the N BA d oes not p reem p t s tate cons um er p rotection claim s
. Ins tead , the d is trict court reas oned that the State w as “im p lied ly” as s erting
21 Case: 13-60686 Document: 00512457664 Page: 21 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687
H e r e , it is clear that when the S tate asserts in the complaints that t h e Plans have “little or no value,” it is n ot alleging that the rate of in t e r e s t that D e f e n dants charge exceeds the interest rate established by statutory la w
. Instead, the a l l egation relates to Defendants’ alleged practice of improperly enrolling certain unqualified customers in the Plans. 1 4 A number of courts that have considered similar c laims have likewise c o ncluded that these are not usury allegations. See, e.g. , Losel v. Chase Bank USA, NA , No. S-11-1999-KJM, 2012 WL 3778960, at *4 (E.D. Cal. Aug. 31, 2 012) (“Moreover, plaint i f f ’ s use of the word ‘high’ to describe the interest rate d o es not automatical l y t r a n slate to a
usury claim. Read in context, the complaint’s statements regarding the interest
rate and late f

ees are contextual and merely inform the court of the

consequences o f Chase’s alleged breach o f implied covenant of good faith and fair dealing.”); McGraw , 842 F. S u pp. 2d at 993 (“Taken together, Plaintiff’s claims do challenge the value o f t he plans to consumers, b ut i n doing so plainly allege that the plans simply have no v a l u e to m any consumers—not that they are usurious.”); Young v. W ells F argo & C

o. , 671 F. Supp. 2d 1006, 1 021 (S.D. Iowa

us ury cl a i m s , a n d conclud ed that its claim s w ere theref ore preem p ted bas ed on Benef i ci a l N a ti ona l

. Thes e “im p licit” claim s are a f ar cry f rom Benef

i ci a l N a t i ona l , w here the com p laint exp res s ly “s ought relief f or ‘us ury violations ’ and claim ed that p e t i t ioners ‘charged

. . . exces s ive interes t in violation of the com m on law us ury d octrine’ and violated ‘Alabam a Cod e § 8- 8- 1, et s eq. by charging exces sive interes t. ’” 539 U

. S. at 9, 11. In contras t, the com p laints here chall e n g e a num ber of D ef end ants ’ p ractices with regard to a num ber of Def end ants ’ p rod ucts , but never allege that any of the f ees are interes t, o r that the am ount of thos e f ees is exces s ive. Rather than challenging how m uch the D ef end ants charge, the State tak es is s ue
w ith the D ef

end ants ’ bus ines s p ractices

. Contrary to Def end ants ’ argum ent, claim s lik e thes e d o not im p ed e the f

ed eral governm ent’s ability to es tablis h a unif orm s et of interes t rates f or nationally chartered bank s
.

1 4 Def end ants als o argue that the State is allegin g t h e i n t e res t rate is exces s ive by p lead ing that the P l ans can trigger over- the- lim it f ees , w hich are them s elves a f orm of interes t. But the State is not challenging the rate of Def end ants ’ over- the- lim it f ees
. Rather, it is alleging that D ef

end ants ’ p ractices unf airly trigger thos e fees

. This argum ent theref ore f ails f or the s am e reas ons s tated above.
22 Case: 13-60686 Document: 00512457664 Page: 22 Date Filed: 12/02/2013No. 13-60686 c/w No. 13-60687 2009) (“Hence, the basis of the alleged excessiveness is t h at Wells Fargo charged fees when they s hould not, a wholly different claim fr o m a c l a i m that Wells Fargo applied an illegal interest rate.”); Saxton v. Capital One Bank , 392 F. Supp. 2d 772, 783 (S.D. Miss. 2005) (“It is clear to the court t hat i t is not the p er

se amount of late fees or o ther ‘interest’ that plaintiffs challenge here b ut rather the allegedly improper and deceptive manner in which it was charged. Hence, plaintiffs’ complaint is n o t construable as a claim for usury.”). Defendants have
not met their burden o f p r oving that the NBA provides the “exclusive cause of action” for the State’s claims; thus, the claims are not preempted. V. In conclusion, neither CAFA nor f ederal preemption by the NBA provides

a basis for federal subject matter jurisdiction i n this case. To the extent that the district court h a s not yet ruled o n whether substantial federal question jurisdiction exists, this case is remanded for t he di s t r i c t court to make that determination. 1 5 If the district court has already ruled t h at there is no substantial federal question j u r i s diction, or makes such a determination upon further review, then these cases should b e r emanded to the state court as there would be no federal jurisdiction, and thus nothing to support supplemental jurisdiction. We REVERSE and REMAND for proceedings consistent with this opinion.

1 5 D ef end ants argue that the d is trict court d id not rule on this ad d itional b a s i s f or rem oval. In rep ly, the State argues that the d is trict court d eclined to f ind s ubs tantial f

ed eral ques tion juris d iction. We are unable to determ ine w hether or not the d is trict c o u r t has alread y reached this is s ue. 23 Case: 13-60686 Document: 00512457664 Page: 23 Date Filed: 12/02/2013