PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AU OPTRONICS CORPORATION; AU 

OPTRONICS CORPORATION AMERICA,

Petitioners,  No. 11-254

v.

STATE OF SOUTH CAROLINA,

Respondent. 

LG DISPLAY CO., LTD.; LG 

DISPLAY AMERICA, INC.,

Petitioners,  No. 11-255

v.

STATE OF SOUTH CAROLINA,

Respondent. 

On Petitions for Permission to Appeal

from the United States District Court

for the District of South Carolina, at Columbia.

Joseph F. Anderson, Jr., District Judge.

(3:11-cv-00731-JFA; 3:11-cv-00729-JFA)

Argued: September 18, 2012

Decided: October 25, 2012

Before KING, DUNCAN, and KEENAN, Circuit Judges.
Petitions for permission to appeal granted and remand decisions affirmed by published opinion. Judge King wrote the

opinion, in which Judge Duncan and Judge Keenan joined.

ARGUED: William Walter Wilkins, NEXSEN PRUET,

Greenville, South Carolina, for AU Optronics Corporation

and AU Optronics Corporation America. Henry L. Parr, Jr.,

WYCHE, PA, Greenville, South Carolina, for LG Display

Co., Ltd., and LG Display America, Inc. Susan Campbell,

MCGOWAN, HOOD & FELDER, LLC, Columbia, South

Carolina, for State of South Carolina. ON BRIEF: Christopher Alan Nedeau, Carl Lawrence Blumenstein, Veronica

Lashawn Harris, NOSSAMAN, LLP, San Francisco, California; Kirsten E. Small, NEXSEN PRUET, Greenville, South

Carolina, for AU Optronics Corporation and AU Optronics

Corporation America. Wallace K. Lightsey, Sarah S. Batson,

Wade S. Kolb, III, WYCHE, PA, Greenville, South Carolina;

Michael R. Lazerwitz, CLEARY GOTTLIEB STEEN &

HAMILTON, LLP, New York, New York, for LG Display

Co., Ltd., and LG Display America, Inc. Alan M. Wilson,

Attorney General, C. Havird Jones, Jr., Assistant Deputy

Attorney General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina; Chad A. McGowan,

MCGOWAN, HOOD & FELDER, LLC, Rock Hill, South

Carolina, for State of South Carolina.

OPINION

KING, Circuit Judge:

Defendants AU Optronics Corporation and AU Optronics

Corporation America (together, "AU Optronics") and LG Display Co., Ltd., and LG Display America, Inc. (together, "LG

Display"), seek to appeal the district court’s rejection of their

2 AU OPTRONICS v. SOUTH CAROLINA
assertions of federal court jurisdiction under the Class Action

Fairness Act of 2005 ("CAFA"). The State of South Carolina

initiated these cases in state court, alleging violations of the

State’s Antitrust Act and its Unfair Trade Practices Act

("SCUTPA"). AU Optronics and LG Display removed the

cases to the District of South Carolina, invoking CAFA and

general diversity principles. By virtually identical opinions of

September 14, 2011, the district court remanded the proceedings to the state court. See South Carolina v. AU Optronics

Corp., No. 3:11-cv-00731 (D.S.C. Sept. 14, 2011); South Carolina v. LG Display Co., Ltd., No. 3:11-cv-00729 (D.S.C.

Sept. 14, 2011) (collectively, the "Remand Decisions"). The

defendants have filed separate petitions for permission to

appeal the Remand Decisions, contending that the court erred

in deeming CAFA’s jurisdictional requirements not satisfied.

As explained below, we grant the petitions for permission to

appeal, reject the defendants’ contention concerning CAFA

jurisdiction, and affirm the Remand Decisions.1

I.

A.

These nearly identical lawsuits were initiated by the State

on February 18, 2011, in the state court of Richland County,

South Carolina. The complaints alleged that the defendants —

generally described as manufacturers of liquid crystal display

("LCD") panels — had engaged in a price-fixing conspiracy

from 1996 through 2006.2 The State sought relief from the

1After the petitions for permission to appeal were filed in this Court, the

State sought consolidation of the appellate proceedings for oral argument

and disposition. On July 16, 2012, we denied the State’s request. AU

Optronics and LG Display thereafter submitted separate briefs and the

cases were separately argued. Having now fully considered the briefs and

arguments presented by the parties, we consolidate the appellate proceedings for disposition. 

2The complaints differ in one respect. Because LG Display pleaded

guilty to federal criminal charges emanating from the alleged conspiracy,

see 15 U.S.C. § 1, the State’s lawsuit against LG Display contains a paragraph entitled "Criminal Conspiracy to Fix Prices." No similar allegation

is made in the AU Optronics action. 

AU OPTRONICS v. SOUTH CAROLINA 3
defendants in three common respects: civil forfeitures for violations of the Antitrust Act, see S.C. Code §§ 39-3-130, -180;

statutory penalties for violations of SCUTPA, id. § 39-5-110;

and restitution on behalf of South Carolina citizens for violations of SCUTPA, id. § 39-5-50.3

On March 25, 2011, the defendants removed these cases to

the District of South Carolina. Each notice asserted three

grounds for removal: (1) that the case is a class action removable under CAFA, 28 U.S.C. §§ 1332(d), 1453; (2) that it is

also a mass action removable under CAFA; and (3) that it is

removable under general diversity jurisdiction, as embodied

in 28 U.S.C. § 1332(a). The common theory underlying

removal is that, even though the State is the only named plaintiff, the "real parties in interest" to the restitution claims are

the citizens of South Carolina who purchased products utilizing LCD panels manufactured by the defendants. More specifically, the defendants maintained that, when those citizens

are properly viewed as plaintiffs, both cases satisfy CAFA’s

requirements for mass and class actions, and the proper —

albeit unnamed — plaintiffs are completely diverse from AU

Optronics and LG Display.4 On April 24, 2011, the State

moved to remand these cases to state court for lack of subject

matter jurisdiction, contending that CAFA’s requirements for

jurisdiction are not satisfied, and that the State, as the only

named plaintiff, is not a citizen for purposes of diversity jurisdiction. 

3The restitution provision at issue in the complaints is found in

SCUTPA and provides that, 

[t]he court may make such additional orders or judgments as may

be necessary to restore to any person who has suffered any ascertainable loss by reason of the use or employment of such unlawful method, act or practice, any moneys or property, real or

personal, which may have been acquired by means of any practice declared to be unlawful in this article. 

S.C. Code § 39-5-50(b). 

4The AU Optronics defendants are Texas and Taiwan corporations, and

the LG Display defendants are California and Korea corporations. 

4 AU OPTRONICS v. SOUTH CAROLINA
B.

On August 22, 2011, the district court heard argument on

the State’s remand motions. Three weeks later, the court

remanded both cases to state court. In so ruling, the court first

decided that the cases failed to satisfy CAFA’s minimal diversity requirement. See Remand Decisions 10. As the court recognized, class and mass actions are subject to the

jurisdictional dictates of 28 U.S.C. § 1332(d), which provides,

inter alia, that the parties in such actions need only be minimally diverse from one another to justify removal to federal

court. This minimal diversity requirement is satisfied when

"any member of a class of plaintiffs is a citizen of a State different from any defendant." See § 1332(d)(2)(A). Though the

defendants in these cases are citizens of Taiwan, Korea,

Texas, and California, see supra note 4, South Carolina is not

a citizen of any state for purposes of diversity jurisdiction. See

Moor v. Alameda County, 411 U.S. 693, 717 (1973) ("There

is no question that a State is not a ‘citizen’ for purposes of the

diversity jurisdiction."). Thus, minimal diversity does not

exist among the named parties, as the district court explained.

See Remand Decisions 5. 

In light of the defendants’ contention that South Carolina

citizens are real parties in interest in these cases, the district

court also recognized the proposition that "a federal court

must disregard nominal or formal parties and rest jurisdiction

only upon the citizenship of real parties to the controversy."

Remand Decisions 5 (citing Navarro Sav. Ass’n v. Lee, 446

U.S. 458, 461 (1980)). Nevertheless, the court determined that

these proceedings were parens patriae lawsuits, and that

South Carolina had asserted a quasi-sovereign interest therein,

as opposed to the private interests of a subset of its population. Id. at 9-10.5

 That framing of the complaints, the court

5Parens patriae, literally "parent of the country," is a doctrine that provides a state with standing to sue as a guardian of its citizens when the

state can "articulate an interest apart from the interests of particular private

AU OPTRONICS v. SOUTH CAROLINA 5
ruled, rendered South Carolina more than a nominal party to

these proceedings. Id. at 9-11. The court declined to parse the

complaints on a claim-by-claim basis, and it rejected the

defendants’ contention that the real parties in interest to the

restitution claims are citizens of South Carolina, and not the

State. Thus, the court did not include those citizens in its

diversity analysis. Rather, the court focused on the nature of

the cases as parens patriae actions and distinguished them

from proceedings where a state is pursuing claims on behalf

of private parties. The court explained that,

[u]nder a wholesale approach, the case[s are] parens

patriae action[s], where the State has a clear quasisovereign interest in enforcing its own antitrust and

consumer protection laws. Based on this recognized

quasi-sovereign interest, the State is a real party in

interest to the action[s], and there is no need to

pierce the pleadings. As such, minimal diversity

does not exist. 

Id.

Finally, the district court acknowledged that, in addition to

seeking civil forfeitures and statutory penalties, which South

Carolina is unquestionably entitled to do, the State was also

seeking restitution on behalf of individual citizens. Remand

Decisions 10-11. The court declined, however, to permit the

restitution claims to transform these cases into proceedings

parties." LG Display Co., Ltd. v. Madigan, 665 F.3d 768, 771 (7th Cir.

2011) (internal quotation marks omitted). A state may sue on behalf of its

citizens as parens patriae when the interests of a group of citizens are at

stake, as long as the state is also pursuing a quasi-sovereign interest. See

United States v. Johnson, 114 F.3d 476, 481-82 (4th Cir. 1997); In re

Edmond, 934 F.2d 1304, 1310 (4th Cir. 1991) ("The state must be more

than a nominal party without a real interest of its own; it must articulate

an interest apart from the interests of . . . particular private parties . . . ."

(internal quotation marks omitted)). 

6 AU OPTRONICS v. SOUTH CAROLINA
where South Carolina citizens may be deemed real parties in

interest. The court explained that

it is possible for a State to have multiple interests in

a case, including some that are quasi-sovereign and

some that are not. While individual consumers may

benefit from the restitution sought by the State in

[these cases], the remedies sought in [these cases]

also generally inure to all residents of South Carolina

by making it less likely these defendants will engage

in future price-fixing and by recovering taxpayer

money paid to the defendants as overcharges. 

Id. Concluding that South Carolina was properly pursuing

these parens patriae lawsuits under its own antitrust and

unfair trade practices laws, the court remanded them to the

state court in Richland County.6

After the Remand Decisions were rendered, the defendants

petitioned our Court for permission to pursue appeals under

CAFA, which specifically authorizes a court of appeals to

"accept an appeal from an order of a district court granting or

denying a motion to remand a class [or mass] action." 28

U.S.C. § 1453(c)(1).7 By Order of December 2, 2011, we

6Other states have pursued or are pursuing similar actions against LCD

panel manufacturers, predicated on conduct similar to that alleged here.

For example, multi-district litigation being pursued in a California federal

court involves such cases. See In re TFT-LCD (Flat Panel) Antitrust Litig.,

No. 3:07-md-01827-SI (N.D. Cal.). According to the Remand Decisions,

most of those cases allege violations of federal law, and the parties in

those matters have not contested federal jurisdiction. See Remand Decisions 2. 

7Generally, a district court’s remand to state court of a removed case is

not appealable. See 28 U.S.C. § 1447(d) (providing that "[a]n order

remanding a case to the State court from which it was removed is not

reviewable on appeal or otherwise"). CAFA, however, creates an exception to this general proposition and permits a court of appeals to consider

an appeal from a remand order. See id. § 1453(c)(1). 

AU OPTRONICS v. SOUTH CAROLINA 7
deferred ruling on the defendants’ petitions for permission to

appeal pending full briefing and argument.

II.

We review de novo the question of whether a district court

possessed subject matter jurisdiction under CAFA and, thus,

whether a remand to state court was appropriate. See Moffit

v. Residential Funding Co., LLC, 604 F.3d 156, 159 (4th Cir.

2010); In re Celotex Corp., 124 F.3d 619, 625 (4th Cir. 1997).

The burden of establishing federal jurisdiction for a class or

mass action under CAFA is on the removing party. See

Strawn v. AT&T Mobility LLC, 530 F.3d 293, 298 (4th Cir.

2008).

III.

In their petitions for permission to appeal, the defendants

have abandoned all but one of their grounds for removal. That

is, they maintain only that federal jurisdiction is proper

because their cases qualify as mass actions under CAFA. A

mass action is defined in CAFA as 

any civil action . . . in which monetary relief claims

of 100 or more persons are proposed to be tried

jointly on the ground that 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 jurisdictional

amount requirements under subsection (a) [that the

matter in controversy exceed $75,000].

28 U.S.C. § 1332(d)(11)(B)(i).8 To proceed as a mass action,

8The CAFA definition of a class action is codified in 28 U.S.C.

§ 1332(d)(1), and the jurisdictional requirements for a class action are set

forth in subsections (2) through (10) thereof. Subsection (d)(11) defines a

mass action, and provides that "[f]or purposes of this subsection and sec8 AU OPTRONICS v. SOUTH CAROLINA
a civil action must therefore satisfy CAFA’s minimal diversity requirement, its numerosity requirement of 100 or more

persons, and its amount-in-controversy requirement that all

claims, when aggregated, must exceed $5,000,000 and an

individual claim must exceed $75,000. Defendants contend

that these proceedings satisfy each of the mass action requirements. 

A.

1.

Relying on Navarro Savings Ass’n v. Lee, 446 U.S. 458

(1980), the defendants first urge us to recognize that South

Carolina is a nominal or formal party only. Thus, they assert

that we must, in order to properly decide the remand issue,

look to the citizenship of the real parties in interest (i.e., those

South Carolina citizens who purchased products with LCD

panels made by AU Optronics and LG Display). Indeed, even

when a state is pursuing a parens patriae action, "if the State

is only a nominal party without a real interest of its own —

then it will not have standing." Alfred L. Snapp & Son, Inc.

tion 1453, a mass action shall be deemed to be a class action removable

under paragraphs (2) through (10) if it otherwise meets the provisions of

those paragraphs." 28 U.S.C. § 1332(d)(11)(A). Thus, a mass action is

subject to the same jurisdictional requirements as a class action. As relevant here, the minimal diversity jurisdictional hook is found in

§ 1332(d)(2)(A), which provides: 

(2) The district courts shall have original jurisdiction of any civil

action in which the matter in controversy exceeds the sum or

value of $5,000,000, exclusive of interest and costs, and is a class

action in which— 

(A) any member of a class of plaintiffs is a citizen of a State

different from any defendant 

. . . . 

28 U.S.C. § 1332(d)(2)(A). 

AU OPTRONICS v. SOUTH CAROLINA 9
v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 (1982). For

a state to be more than a nominal party in a lawsuit pursued

on behalf of its citizens, the complaint must pursue a "quasisovereign" interest, or an interest "that the State has in the

well-being of its populace." Id. at 602.

The defendants find arguable support for their proposition

concerning the interests of individual South Carolina citizens

in Missouri, Kansas, & Texas Railway Co. v. Hickman, 183

U.S. 53 (1901), and Messer v. American Gems, Inc., 612 F.2d

1367, 1370 (4th Cir. 1980). In both matters, the party that initiated the lawsuit was determined to be a nominal party only,

rather than the real party in interest. In Hickman, the Supreme

Court ruled that there was federal jurisdiction where the plaintiff was a state, but also where the real and substantive plaintiffs in the controversy were real people who were citizens of

a different state than the defendants. See 183 U.S. at 60-61.

The Court explained that the citizenship of those individuals

counted toward diversity because any recovery in the action

would "not inure to the benefit of the state as a state in any

degree." Id. at 59 (explaining that the state is the real party in

interest when "the relief sought is that which inures to it

alone, and in its favor the judgment or decree, if for the plaintiff, will effectively operate").

More recently, in our Messer decision, we explained that,

in a wrongful death action, the citizenship of the beneficiary,

rather than the administrator, must be taken into account in

the diversity analysis. See 612 F.2d at 1370-71. AU Optronics

and LG Display thus contend that the restitution being sought

by the State will inure to the benefit of specific South Carolina citizens and, as in Hickman and Messer, those beneficiaries are real parties in interest who must be taken into account

in our diversity analysis.

2.

AU Optronics and LG Display are correct in asserting that

South Carolina seeks restitution on behalf of certain of its citi10 AU OPTRONICS v. SOUTH CAROLINA
zens. As the district court recognized in the Remand Decisions, however, the State pursues other remedies authorized

under its Antitrust Act and SCUTPA, each of which inure to

the benefit of the State’s treasury. The court, in the removal

proceedings, analyzed the State’s actions in their entireties,

focusing on its parens patriae role in the claims alleged. The

defendants contend in their petitions that we should now

adopt and apply what is referred to as the "claim-by-claim

approach" — as opposed to the "whole-case approach" — as

the proper analysis for our jurisdictional inquiry. Under the

claim-by-claim approach, a court must dissect the complaint

and decide whether the state is the beneficiary of each basis

for relief. If any party other than the state itself would benefit

from a particular claim — such as restitution — such party

should be deemed a real party in interest and thus a plaintiff.

The whole-case approach, on the other hand, requires the

court to consider the complaint in its entirety and decide from

the nature and substance of its allegations what interest the

state possesses in the lawsuit as a whole.

Our sister circuits have disagreed somewhat on whether to

apply the "whole-case approach" or the "claim-by-claim

approach" to the resolution of similar jurisdictional disputes.

For example, the Ninth Circuit, in Nevada v. Bank of America

Corp., recently held that the State of Nevada was the real

party in interest in its parens patriae action against a mortgage lender, even though some relief was being sought on

behalf of individual citizens. See 672 F.3d 661, 670 (9th Cir.

2012). The court of appeals reasoned that "Nevada brought

this suit pursuant to its statutory authority . . . because of its

interest in protecting the integrity of mortgage loan servicing." Id. The court concluded, applying the whole-case

approach, that "Nevada’s sovereign interest in protecting its

citizens and economy from deceptive mortgage practices is

not diminished merely because it has tacked on a claim for

restitution." Id. Similarly, the Seventh Circuit in LG Display

Co., Ltd. v. Madigan, another of the LCD panel price-fixing

cases, rejected the claim-by-claim approach in favor of the

AU OPTRONICS v. SOUTH CAROLINA 11
whole-case approach and held, based on the "essential nature

and effect of the proceeding," that the State of Illinois was the

real party in interest in the lawsuit. See 665 F.3d 768, 772 (7th

Cir. 2011).

The Fifth Circuit, on the other hand, has applied the claimby-claim approach. See Louisiana ex rel. Caldwell v. Allstate

Ins. Co., 536 F.3d 418, 431 (5th Cir. 2008). The Caldwell

case was an antitrust action brought by Louisiana against several insurance companies for conspiring to suppress competition. As part of the relief sought, Louisiana requested treble

damages on behalf of its citizens. The defendants removed the

case to federal court, arguing that, "although labeled parens

patriae, [the] case [was] in substance and fact a ‘class action’

or a ‘mass action’" under CAFA. Id. at 423. The Fifth Circuit

applied the claim-by-claim approach and determined that

Louisiana’s consumers were the real parties in interest with

respect to the treble damages claim. Id. at 429-30. The court

of appeals reasoned that, even though Louisiana possessed a

quasi-sovereign interest in pursuing the balance of its claims,

individual consumers were properly included in the diversity

analysis because a treble damages award would benefit them.

Id. Concluding that such consumers were Louisiana citizens

and diverse from the insurance companies, the court upheld

diversity jurisdiction and declined to mandate that the case be

remanded to state court. Id. at 430.

B.

We have never directly addressed the issue of whether the

whole-case approach or the claim-by-claim approach should

be utilized in situations such as this. Our recent decision in

West Virginia ex rel. McGraw v. CVS Pharmacy, Inc., however, is somewhat instructive. See 646 F.3d 169 (4th Cir.

2011). There, West Virginia’s Attorney General initiated a

lawsuit against several pharmacies for their failure to pass

along certain cost savings to consumers on generic prescription drugs, in contravention of West Virginia law. The defen12 AU OPTRONICS v. SOUTH CAROLINA
dants removed the action under CAFA, and the district court

remanded on the State’s motion. After granting the defendants’ petition for permission to appeal, we affirmed the

remand order. Even though West Virginia’s request for relief

included restitution and repayment of "excess charges" to

affected consumers, we ruled that the proceeding was not

properly a class action under CAFA because it was being pursued under West Virginia statutes that were insufficiently

"similar" to the procedures mandated by Federal Rule of Civil

Procedure 23, as required by CAFA’s class action definition.

See id. at 177-78.9

Our CVS Pharmacy decision involved a dispute regarding

whether the case should be considered as a "class action"

under CAFA, rather than whether a CAFA "mass action" was

alleged, and our decision did not reach or address the issue of

minimal diversity.10 The panel majority, however, recognized

that the case was "essentially a parens patriae type of action

9As we explained in CVS Pharmacy, CAFA "defines ‘class action’ to

mean ‘any civil action filed under rule 23 of the Federal Rules of Civil

Procedure or similar State statute or rule of judicial procedure authorizing

an action to be brought by 1 or more representative persons as a class

action.’" CVS Pharm., 646 F.3d at 174 (citations and emphasis omitted).

10In response to a dissenting opinion, the panel majority in CVS Pharmacy specifically declined to reach the issue we face today, explaining

that 

[t]he dissent suggests that the Attorney General "does not have

a quasi-sovereign interest" in Count III because the reimbursement sought . . . would flow directly to an identifiable group of

consumers, rather than to the State or its citizens generally. . . .

From this, the dissent concludes that Count III does not state a

valid parens patriae claim and that the action as a whole must be

classified as a class action. . . . [W]hile we conclude that this

action is a parens patriae action, based on the State’s deterrence

and consumer protection interests, that conclusion is not essential

to the separate, and more meaningful determination that the

action in this case was not brought under a procedure "similar"

to Rule 23. 

646 F.3d at 176 n.2. 

AU OPTRONICS v. SOUTH CAROLINA 13
for enforcement of [West Virginia’s] own laws on behalf of

itself and its citizens," and explained that the State possessed

a quasi-sovereign interest in the right to enforce its own consumer protection laws in its own courts. CVS Pharm., 646

F.3d at 176, 179. Applying the principles of CVS Pharmacy,

South Carolina’s Attorney General is plainly authorized to

pursue a parens patriae action in state court, on behalf of

South Carolina citizens, for violations of the State’s antitrust

laws and SCUTPA. Moreover, like West Virginia in CVS

Pharmacy, South Carolina possesses a quasi-sovereign interest in doing so.

Similar to West Virginia in CVS Pharmacy, and also to

Nevada in Bank of America Corp. — and unlike Louisiana in

Caldwell — the State of South Carolina "seeks substantial

relief that is available to it alone." Bank of Am. Corp., 672

F.3d at 672. The statute under which Louisiana sought treble

damages in Caldwell provided, in part, that "[a]ny person

who is injured . . . by reason of any act or thing forbidden by

this Part may sue . . . and shall recover threefold the damages." La. Rev. Stat. Ann. § 51:137 (emphasis added). The

Caldwell statute "plainly contemplated individual enforcement," something not authorized by the relevant provisions of

South Carolina’s Antitrust Act or SCUTPA. See West Virginia ex rel. McGraw v. CVS Pharm., Inc., 748 F. Supp. 2d

580, 597 (S.D. W. Va. 2010). In the matters before us, moreover, "there is no doubt that the Attorney General has statutory authority to pursue such claims." Bank of Am. Corp., 672

F.3d at 670.

South Carolina’s Antitrust Act specifically subjects violators to civil forfeitures, "to be recovered by an action in the

name of the State, at the relation of the Attorney General."

S.C. Code § 39-3-180. Meanwhile, SCUTPA authorizes the

Attorney General, "acting in the name of the State," to seek

civil penalties and forfeitures, as well as injunctive relief,

when the court finds that a violation of SCUTPA has

occurred. Id. § 39-5-110. SCUTPA also authorizes the Attor14 AU OPTRONICS v. SOUTH CAROLINA
ney General to pursue an action in the name of the State seeking injunctive relief if there is reason to believe someone is

violating the Act. See id. § 39-5-50(a). Thus, each of these

statutes is specifically enforceable by the State’s Attorney

General, who is authorized to pursue the claims being alleged

in the name of the State. 

As explained by the Ninth Circuit in Bank of America

Corp., "[t]he Complaint, read as a whole, demonstrates that

[the State] is the real party in interest in this action." 672 F.3d

at 672. South Carolina’s claims for relief in these cases are

each unique to the State and are consistent with its role as

parens patriae, inasmuch as the State possesses a quasisovereign interest in enforcing — in state court — its laws

with respect to price-fixing conspiracies. Furthermore, South

Carolina is the sole named plaintiff in these lawsuits. Indeed,

the provisions of the Antitrust Act and SCUTPA invoked in

the complaints designate the State as the proper plaintiff.

We are therefore satisfied to resolve these petitions for permission to appeal by adopting the whole-case approach and

rejecting the claim-by-claim approach. In so doing, we conclude that the nature and effect of these actions demonstrate

that South Carolina is the real party in interest, a fact that is

unencumbered by the restitution claims. We therefore agree

with the Ninth and Seventh Circuits that a claim for restitution, when tacked onto other claims being properly pursued

by the State, alters neither the State’s quasi-sovereign interest

in enforcing its own laws, nor the nature and effect of the proceedings. The purpose of these cases is the protection of the

State’s citizens and upholding the integrity of South Carolina

law. The State, in these parens patriae actions, is enforcing

its own statutes in seeking to protect its citizens against pricefixing conspiracies. That the statutes authorizing these actions

in the name of the State also permit a court to award restitution to injured citizens is incidental to the State’s overriding

interests and to the substance of these proceedings. Those citizens are not named plaintiffs here, and they need not be conAU OPTRONICS v. SOUTH CAROLINA 15
sidered in the diversity analysis of the State’s claims. Thus,

CAFA’s minimal diversity requirement is not satisfied in

either of these cases, and the district court properly remanded

them to state court.11

IV.

Pursuant to the foregoing, the petitions for appeal of AU

Optronics and LG Display are hereby granted, and the

Remand Decisions are affirmed.

PETITIONS FOR PERMISSION TO APPEAL GRANTED

AND REMAND DECISIONS AFFIRMED

11Inasmuch as we resolve these proceedings on the issue of minimal

diversity, we need not address or rule on the other CAFA jurisdictional

requirements. 

16 AU OPTRONICS v. SOUTH CAROLINA