### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-60704

STATE OF MISSISSIPPI, ex rel Jim Hood, Attorney General, Plaintiff - Appellee
v. AU OPTRONICS CORPORATION; AU OPTRONICS CORPORATION AMERICA, INCORPORATED; CHI MEI CORPORATION; CHIMEI INNOLUX CORPORATION, formerly known as Chi Mei Optoelectronics Corporation; CHI MEI OPTOELECTRONICS USA, INCORPORATED, formerly known as International Display Technology USA, Incorporated; CMO JAPAN COMPANY, LIMITED, formerly known as International Display Technology, Limited; HANNSTAR DISPLAY CORPORATION; HITACHI, LIMITED; JAPAN DISPLAY EAST, INCORPORATED; HITACHI ELECTRONIC DEVICES (USA); LG DISPLAY COMPANY, LIMITED, formerly known as LG Phillips LCD Company, Limited; LG DISPLAY AMERICA, INCORPORATED, formerly known as LGD LCD America, Incorporated; SAMSUNG ELECTRONICS COMPANY LTD; SAMSUNG SEMICONDUCTOR, INCORPORATED; SAMSUNG ELECTRONICS AMERICA, INCORPORATED; SHARP CORPORATION; SHARP ELECTRONICS CORPORATION; TOSHIBA CORPORATION; TOSHIBA MOBILE DISPLAY COMPANY, LIMITED, formerly known as Toshiba Matsushita Display Technology Company, Limited; TOSHIBA AMERICA ELECTRONIC COMPONENTS, INCORPORATED; TOSHIBA AMERICA INFORMATION SYSTEMS, INCORPORATED, Defendants - Appellants

Appeal from the United States District Court for the Southern District of Mississippi U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Novembe r 21, 20 12 Lyle W . Cayce Clerk Case: 12-60704 Document: 00512061193 Page: 1 Date Filed: 11/21/2012No. 12-60704

Before JOLLY, CLEMENT, and ELROD, Circuit Judges. E. GRADY JOLLY, Circuit Judge: Appellants, m a n ufacturers and distributors of liquid crystal display (“LCD”) panels, jointly removed this case to federal district court on the grounds that (1) the action was a “class action” under t h e C l a s s Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(1)(B), or (2) the action was a “mass action” under the CAFA, § 1332(d)(11)(B). The State of Mississippi, Appellee, then moved to remand the case to state court, and the district court granted the motion. Because we find that the suit qualifies as a mass action under the CAFA, we find removal to be proper. Accordingl y , we REVERSE the district court’s remand order and REMAND for further proceedings. I. Ordinarily, a district court’s remand order is not appealable, see 28 U.S.C. § 1447(d); however, there is a statutory exception to this rule that grants federal appellate courts discretionary jurisdiction to review rema n d orders in actions that are removed under the CAFA. See 28 U.S.C. § 1453(c). We review de novo a district court’s order remanding an action that was removed pursuant to the CAFA. Admiral Ins. Co

. v. Abshire , 574 F.3d 267, 272 (5th Cir. 200 9). II. Under the CAFA, removal of a suit to fe d e r a l c o u rt is proper if the suit qualifies as a “class action” or a “mass action.” Se e 28 U.S.C. § 1453(b); 28 U.S.C. § 1332(d)(11)(A). Our analysis begins by considering whether Mississippi’s suit against the LCD manufacturers qualifies as a “class action,”

a ques t i o n that can be answered quickly in the negative. Under the relevant provision, a class action is defined as “any civil action filed under Rule 23 of the Federal R u l e s of Civil Procedure or similar State statute or rule of judicial procedure au t h o rizing an action to be brought by 1 or more representative
p e r s o n s as a class action.” 28 U.S.C. § 1332(d)(1)(B). Because Mississippi d i d

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not bring this su i t u n d e r Rule 23 or a rule of judicial procedure and because Mississippi state law explicitly prohibits class actions, see Am. Bankers Ins. Co. of Fla. v. Booth , 830 So. 2d 1205, 1 2 1 4 (M i s s
. 2002) (“[T]he rule is that Mississippi does not permit class actions, even equitable c l ass actions in chancery court.”), the only question is whether the suit is brought under a state statute “similar” to Rule 23. This suit was brought under the Mississippi Consumer Protection Act (“MCPA”), Miss. Code Ann. § 75-24-1 et seq. , and the Mississippi Antitrust Act (“MAA”), Miss. Code Ann. § 75-21-1 et seq. The MCPA explicitly forbids class actions, see Miss. Code Ann. § 75-24-15(4), and the MAA does not require that suits brought by the State satisfy any requirements that resemble the adequacy, numerosity, commonality, and typicality requirements of class action lawsuits under Rule 23, see Miss. Code Ann. § 75-21-7. It is thus clear that neither the MCPA nor the MAA, the statutes under which Mississippi brings the present suit, are “similar” to Rule 23. Accordingly, we hold that the district court did not err in finding that t h e s u i t does not qualify as a “class action” under the CAFA. III. This conclusion brings us to the more difficult question: whether this suit qualifies as a “mass action” under the CAFA. Under the terms of the statute, a

mass action is defined as a civil action in which (1) monetary relief claims of (2) 100 or more persons (3) are proposed to be tried jointly on the ground that the plaintif f s ’ c l a ims involve common questions of law or fact and (4) include an amount in controversy exceeding $75,000. 28 U.S.C. § 1332(d)(11)(B)(i). It is undisputed tha t t h e present suit involves “monetary relief” claims, see Compl. 54, ¶¶ 2, 3, and that the relief sought satisfies the a m o u n t i n c ontroversy requirement. Therefore, the decisive question is whether the suit involves the claims of “100 or more persons.” If so, the suit is a mass action, and removal is
proper.
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In Louisiana ex r e l

. Caldwell v. Allstate Insurance Company , we first considered the application of the mass action provision to a suit filed by a state attorney general on behalf of a subset of injured citizens. 536 F.3d 418, 429-30 (5th Cir. 2008). Caldwell instructs us to pierce the pleadings and look at the real nature of a state’s claims so as to prevent jurisdictional gamesmanship. See id

. at 424-25, 429 (“I t i s well-established that in determining whether there is jurisdiction, federal courts look to the substance of the action and not only at the labels that the parties may attach

. . . . This court has r e c o g n i z e d that d e f e ndants may pierce the pleadings to show that the claim has b e e n fraudulently pleaded to prevent removal.” (citations and inset quotation marks omitted)). The Caldwell claim-by-claim approach contrasts with other circuits that look to a state’s complaint “as a whole” and then subjectively determine if the state alone is the real party in interest. See, e. g
. , N e v a d a v. Bank of Am. Corp. , 672 F.3d 661, 670 (9th Cir. 201 2); LG Display Co., Ltd. v. Madigan , 665 F.3d 768, 774 (7th Cir. 2011). Caldwell , binding p r ecedent on this court, effectively defined “persons” in the mass action context to be the real parties in interest as to the respective claims. See Caldwell , 536 F.3d at 424-25, 429. We follow its approach. The real parties in interest in Mississippi’s suit are those more than 100
persons who, “by substantive law, possess[] the right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery.” R i c h a r d s v. Reed , 611 F.2d 545, 546 n.2 (5th Cir. 1980) (inset quotations omitted); Charles Alan Wright & Mary Kay Lane, LAW O F F EDERAL C OURTS 492 (6th ed. 2002). We find that the real parties in interest are numerous – far in excess of 100. Contrary to the State’s assertions, Mississippi is thus not the sole party in interest. Instead, the State (as a purchaser of LCD products) and individual citizens wh o p u r chased the products within Mississippi possess “rights sought to be enforced.” We have several bases for this conclusion.

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First, the complaint: When the Sta t e sued the LCD manufacturers, its claim was that the manufacturers had engaged in a conspiracy to fix prices for LCD panels and that their conduct artificially inflated prices, which harmed the

consum e r s w h o w ere forced to pay higher prices. In its complaint, the State includes a series of diverse statements about the nature of the injury involved. At times, it seems to be arguing the injury is “generalized harm” to the State as

a w h o le. See Compl. 2, ¶ 1 (“[T]he State of Mississippi has a quasi-s o v e r e i g n interest in the direct and indirect effect of defendants’ illegal conspiracy on the state ’s economy and the citizens’ economic condition.”); Compl. 51, ¶ 194(g) (“The
economy of the state of Mississippi has been damaged.”). At other t i m e s , t h e Complaint indicates the injury it see k s t o remedy with money damages is the injury suffered by the purchaser consumer. See Compl. 38, ¶ 145 (“Defendants’ conspiracy to raise

. . . the price of LCD panels at artificial levels resulted in harm to Plaintiff and other indirect-purchaser consum e rs in Mississippi

. . .”) (emphasis added); Compl. 44, ¶ 16 9 (“[D]efendants have passed through . . . to their customers 100% of the supra-competitive price increases that resulted from the defendants’ conspiracy

. . .”) (emphasis added); Compl. 51, ¶ 194(f) (“Plaintiff and other Mississippi indirect purchasers have paid supra-competitive, artificially inflated prices for LCD products.”) (emphasis added); Compl. 54, ¶ 3 (Plaintiff is bringi ng this action “ on behalf of Mississippi residents

. . .”) (emphasis added). We think the variety of allegations demonstrate that the real parties i n i nterest include not only the State, but also individual consumers residing in Mississippi. Second, the state statutes: Neither the MCPA nor the MAA, the statutory bases of the St a t e ’ s s u i t, give the State sole authority to recover for particularized injuries suffered by consumers. The M CPA gives the State authority to seek injunctive relief and civil penalties, see Miss. Code Ann. §§ 75- 24-9; 75-24-19(1)(b), and may indeed be interpreted as giving the State authority

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to seek restitution for its own injury, see Miss. Code Ann. § 75-24-11. However,

no provision of the MCPA gives the State authority to enforce claims for injuries suffered by o t h e rs
. In other words, the statute does not authorize public collection of private damages. Simil a r l y , t he MAA allows the State to sue for injunctive relief and civil penalties, see Miss. Code Ann. §§ 75-21-1; 75-21-7, but not for restitution for injuries suffered by parties other than the State, see §§ 75- 21-9; 75-21-37. To be sure, there is one unpublished Mississippi state case (from

a chancery trial court) that lends support, under § 75-24-11, for the proposition that a court may “restore” damages to an individual for a particularized injury,

a n d a lso to the state on the basis of some generalized harm. See Miss. ex r e l

. Hood v. BASF Corp. , No. 56863, 2006 WL 308378 (Miss. Ch. Jan. 17, 2006). But

even if BASF Corporation were a more authoritative precedent , it cannot be denied that the case before us is distinguishable; the crucial question before us

was not dealt with by the BASF Corporation court – namely, who are the real parties in interest? Our case involves generalized and individual harms, which demonstrate the real parties in interest are both the State and consumers. In short, BASF Corporation does not provide the State with the power it seeks to assert “ownership” over all individualized claims in the name of the State. Third and finally, common law parens patriaeauthority: Even assuming arguendo that the State has parens patriae standing to bring the claims here (an issue that we do not decide), t h a t s t a n ding does not change the fact that Mississippi is acting, not in its parens patriae capacity, but essentially as a class representative. Although the relevant statutory provision does not appear on the face of the complaint, we note that Mississippi law gives the state attorney general “powers at common law.” Miss. Code Ann. § 7-5-1. The S t a t e argues that parens patriae authority under common law allows the attorney general to bring the current suit, which, as we have seen, involves alleg e d state injury based on harm suffered by individual claimants. This argument fails to account
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for the precis e n ature of the injury in this case and thus also fails to establish the State as the sole party in interest. As a general background principle, Caldwell reminds us that there are limitations on states’ p a r e n s patriae authority. 536 F.3d at 425-28 (“[I]t is clear that

. . . there are some limitations [on parens patriae actions], particularly when a s t a t e i s s eeking to recover damages for alleged injuries to its economy.”). The Supreme Court, for example, has stated that when a state pursues the interests of a private party, the state is not asserting its sovereign interest, and the state remains on l y a nominal party. Snapp v. Puerto Rico , 458 U.S. 592, 602 (1982). That directive may apply here, where Mississippi is pursuing the interests of LCD purchasers. And even i gn o ri n g th e S u p r e m e C o u rt a nd Caldwell’s caveats regarding the over - e xt e n s i o n of parens patriae to suits to which that concept should not attach, two additional considerations demonstrate that the State is not the sole party in interest. M i s s i ssippi law clearly prohibits double recovery for the same harm t o respective class members. See City of Jackson v. Estate of Stewart ex r e l. Womack , 908 So.2d 703, 711 (Miss. 2005). Thus, the state cannot recover for the injury to the consumers and still preserve the right of the consumers to recover,

a right that the consumers clearly have under the statutes pursuant to which the suit is brought. See Miss. Code Ann. §§ 75-24-15; 75-21-9. In short, we have been directed to no statutory or common law that permits the State to extinguish the right and remedy the consumer has for his injury. There is, finally, the all too tr o ub l i n g s u g g estion by the plaintiff that Mississippi could obtain restoration for harm to individual citizens, yet keep that money for itself. We think that consideration, coupled with the reaso n s p r o vi d e d above, is enough to find against the State having carte blanche to recover for others’ injuries under common law parens patriaeauthority. After analyzing the complaint, the relevant statutes, and the parens patriae a u t h o r i t y of the State, we hold that the real parties in interest in this

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suit include both the State and individual consumers of LCD products. Because it is undisputed that there are more than 100 consumers, we find that there are

more than 100 claims at issue in this case. The suit therefore meets the CAFA definition of a “mass action.” See28 U.S.C. § 1332(d)(11)(B)(i). IV. This conclusion alone, however, does not yield a final result. T h e CAFA contains a number of disqualifying exceptions to the ter m “ m a ss action.” Of these, the “general public” exception is relevant here. It provides that a suit is not a mass action if “all of the claims in the action are asserted on behalf of the
gen e r a l public (and not on behalf of individual claimants or members of a purported class) pursuant t o a S t a t e s t a t u t e s p e c if i c al ly a u th orizing such action.” 28 U.S.C. § 1332(d)(11)(B)(ii)(III). But this public exception does not exempt this

case from the CAFA and federal jurisdiction. The requirement that “all of the claims” be asserted on behalf of the public is not met here. As discussed above, individual consumers, in addition to t h e S t ate, are real parties in interest, so there is no way that “all of the claims” ar e “ a s s e r t e d o n behalf of the general public.” Accord Mississippi ex rel. Hood v. Entergy Missis s i p p i , Inc. , No. 3:08cv780, 2012 WL 3704935, at *15 (S.D. Miss. Aug. 25, 2012) (A “finding that th e State has brought [an] action in its representative capacity to recoup restitution for individual[s ]

. . . precludes application of the general public exception.”). We do, however, acknowledge the concern that finding the general public exception inapplicable h ere may render suc h s t a tutory exception a dead letter (becaus e f

i n d i n g a suit to be a mass action negates the possibility of the exception applying), and we welcome congressiona l c l arification of this issue. 1

The genera l publ ic excep tio n here , in the deve lop me nt of the law , has b e c o m e 1
so me wh at pr oblem atic al in the se nse it ref lect s st atut ory sur plus age w hen the Sta te brings
cons ume r- rela ted act ions suc h as the one bef ore us tod ay. See Antoni n Sca lia & Bryan A. 8 Case: 12-60704 Document: 00512061193 Page: 8 Date Filed: 11/21/2012No. 12-60704

Nevertheless, the argument that our finding vitiate s t h e a pplication of the

e xception must yield to our responsibility to apply the unambiguous, expres s language of a statute as written. Davis v. Johnson , 158 F.3d 806, 810 (5th Cir. 1998). Here, doing precisely that (i.e., finding a suit to be a mass action because “monetary relief claims of 100 or more persons” are at issue) precludes us from finding that the general public exception applies. V. At its core, this c ase practically can be characterized as a kind of class action in which the State of M i s s issippi is the class representative. By proceeding the way it has, the plaintiff class and its attorneys seek to avoid the rigors associated with class actions (and avoid removal to federal court). See generally, Waltzing through a Loophole: How Parens Patriae Suits Allow Circumvention of the Class Action Fairness A ct , 83 U. Colo. L. Rev. 549 (2012). B e c ause this suit is a mass action under the terms of the CAFA, removal i s proper. 2 The judgment of the district court is therefore REVERSED, and the case is REMANDED for further proceedings. REVERSED and REMANDED.

Ga rner , R EADIN G LAW : T HE I NTERPRE TA TI O N O F L EGAL T EXTS 174 (1s t ed. 2012) (d isc uss ing the “s urp lus age cano n” of cons tru cti on, wh ich pr ovide s t hat “[ i]f pos sib le, every wo rd and every pr ovis ion is to be given eff ect

. . . . None sho uld be ignore d. None sho uld be given an inte rp ret atio n that caus es it

. . . to have no cons equenc e” (em phas is add ed) ). If a cour t s u c h a s ours dec ide s that the cas e mus t be cons ide red on a “cl aim -by- clai m” bas is and i s , ther efo re, a mas s act ion, it has nece ss aril y dec ide d that not al l of the clai ms are clai ms of the Sta te and the publ ic excep tio n has no rele vance. On the othe r hand, if, as othe r cir cuit s have held , thes e cas es ’ com plai nts sho uld be evaluat ed “as a wh ole, ” and not on a “cl aim -by- clai m” bas is, suc h a dec isi on me ans that the cas e is not a mas s act ion beca use t he Sta te is the so le par ty in inte res t. Cons equent ly, the publ ic excep tio n has no app lica tio n. Thus, unde r eit her
sc enar io, t he publ ic excep tio n be com es s tat utor y s urp lus age. Not hing we have s a i d d e n i es the Sta te of Mis sis sip pi the right to pr oce ed wi th this 2
cas e. It wi ll sim ply pr oce ed in fed eral , not st ate, c ourt

.

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JENNIFER WALKER ELROD, Circuit Judge, concurring in the judgment: I concur in the judgment because the majority opinion is a fair application of our binding precedent, namely Louisiana ex rel. Caldwell v. Allstate Insurance Co. , 536 F.3d 418 (5th Cir. 2008). I write separately, however, to express my

concerns with Caldwell

. Caldwell’s claim-by-claim approach is problematic when applied to CAFA’s “mass action” provision in parens patriae suits such as the instant case. Moreover, and just as trou b l i n g , applying Caldwell’s 1 reasoning to CAFA’s general public exception may render the exception a dead le t t e r i n this circuit. We should reconsider Caldwell and correct our course in this area of the law. We have jurisdiction over this case only if it is a “class action” or a “mass action” under CAFA. For the reasons stated in the majority opinion, this is not

a “class act i o n
. ” The central issue, then, is whether Mississippi’s lawsuit is a “mass action.” CAFA defines that term as: [A]ny civil action

. . . in which monetary relief claims of 100 or more p ersons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of l a w o r f act, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdiction amount requirement under [28 U.S.C. § 1332(a)].

I dis agree wi th the majo rit y opi nion’ s veiled ass ert ion that this may not be a pa ren s 1 pa tria e sui t beca use “ M i ss iss ipp i is pur sui ng the inte res ts of LCD pur chas ers .” In its
co mp laint, Mi ssi ssip pi ide ntif ied a valid quas i-s overe ign inte res t in pr eventi n g ille g a l a ntitru st cond uct pr ohibit ed unde r MAA and MCPA. The fac ts in Mis sis sip pi’ s com plai nt als o sho w that it so ught res tit utio n based , at leas t in part , on gener alizedharm to the M iss iss ipp i econo my caus ed by App ellant s’ pr ice- fixin g sc hem e. The LCD cons ume rs may be real par tie s in inte res t unde r Cal dw el l’s app roac h but that doe s not evis cer ate Mis sis sip pi’ s ass ert ed quas i-s overe ign inte res t in the res tit utio n c laim

. M ore over, t he caveat s to pa ren s pa tria eauthor ity thatthe majo rit y opi nion ref

ere nces app ly only wh en the st ate is a nom inal par ty in inte res t

. The majo rit y opi nion never st ates that Mis sis sip pi is me rely a nom in a l p a rty in inte res t; to the cont rar y, it rec ognizes that “th e real par tie s in inte res t in this sui t inclu de both the Sta te and indi vidual cons ume rs of LCD pr oduc ts .” Furt herm ore , unlik e in Cal dw el l , wh ere the dam ages we re to go to sp ecif

ic pol icyh old ers , Mis sis sip pi ass ert ed both in its com plai nt and at oral argum ent thatitw ouldr etai n an y re st itut ion dam ages
.

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28 U.S.C. § 1332(d)(11)(B)(i). In Caldwell , we considered the application of this provision to a parens patriae suit. As the majority opinion explains, Caldwell essentially define d “persons” in the mass act i o n c o n text as the real parties in interest with respect to each claim in the suit. See 536 F.3d at 424, 429. In that case, Louisiana sued several insurance companies for conspiring to suppress competition and sought, among other things, treble damages on behalf of its citizens. Id. a t 4 2 2 –23. The defendants removed the case to federal court, “argu[ing] that although labeled
parens patriae , th[e] case [was] in substance and fact a
. . . ‘mass action’” under CAFA. Id. at 423. We evaluated Loui s i a n a ’ s s uit on a claim-by-claim basis, rather than as a whole. Id. at 429–30. Using this approach, we concluded that Louisiana consumers were the real parties in interest with respect to the treble damages claim; therefore, the suit involved the monetary claims of 100 or more persons and (because it also met the other statutory requirements) was a mass action. Id. Here, as th e m a

j o ri ty o p i ni o n s h o w s , a p p lying the claim-by-claim approach leads to the conclusion that Mississippi consumers are the real parti e s i n interest with respect to the state’s restitution claim, so this is a “mass action” under CAFA. This result is the e x a c t o p p o site of the outcome in many other 2

The majo rit y opi nion reac hes this res ult usi ng the clai m- by-c laim a p p r oach fr om 2 Cal dw el l , but ther e a r e n o tabl e dif fer ence s betw een Louis iana’ s clai ms in Cal dw el l and Mis sis sip pi’ s clai ms here

. In Cal dw el l , Louis iana sue d unde r the Louisian a Mo nopo lies Act, wh ich pr ovide d that “ any pe rso n wh o is injure d in his bus ines s or pr ope rty” unde r the Mo nopo lies Act “s hall rec over[] [t rebl e] dam ages .” 536 F.3d at 429 (em phas is add ed) (quo ting La. Rev. Sta t. § 51:1 37). Becaus e the Louis iana st atut e cont em plat ed indi vidual enf orc em ent, the cour t reas oned that “th e pol icyh old ers , and not the Sta te, [w ere ] the real par tie s in inte res t. ” Id. (c itat ion om itt ed) ; see also id. at 430 (c oncl udin g that ther e w a s “no reas on to belie ve” that the pol icyhol der s we re not the real par tie s in inte res t “given that the pur pos e of antit rus t tre ble dam ages pr ovis ions [is ] to enco urage pr ivate law sui ts by a g gri eved individual s for injurie s to thei r bus ines se s or pr ope rty” (c itin g Ha wa ii v. Standa rd Oi l Co. , 405 U. S. 251, 262 (197 2))

. He re, Mis sis sip pi sued under MAA and MCPA, wh ich sp ecif ical ly autho rize the Atto rney Ge nera l to sue on behalf of the genera l publ ic for violat ions of the res pec tive st atut es
.

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similar lawsuits around the country. That so many other courts are reaching 3

a different result in cases that involve similarly-situated litigants and nearl y identical claims suggests that we should consider whether we have staked out the correct position. I believe we have not. I. As an initial matter, I agree with Judge Southwick’s dissenting opinion in Caldwell

. Ju d g e Southwick would have ordered remand of Louisiana’s suit to

s t ate court because its complaint did not “on its face” present a class or m a s s action. Caldwell , 536 F.3d at 436 (Southwick, J., dissenting). In reaching that conclusion, Judge Southwick acknowledged two important principles: (1) “the plaintiff is the master o f h i s c o m plaint,” and (2) “[d]oubts about propriety of

See Mis s. Code Ann. § 75-2 1-37 (p rovid ing dir ect st atut ory autho rit y for Mis sis sip pi “to enf orc e civil fea tur es of the antit rus t law s
. . . at law or in equit y”); id. § 75-2 4-19 (1) (b ) ( g i v ing the att orne y genera l dir ect st atut ory autho rit y “[ to] rec over on behalf of a st ate a civil pena lty in
a sum no t to excee d [$10 ,000 ] pervio lati on”)

. In add itio n, the Mis sis sip pi Att orne y Gene ral has “th e pow ers of th e Attor ney Ge nera l at com mo n law. ” Id. § 7-5-1. Thos e pow ers inclu de “th e right to in s t i t u t e , c ondu ct and mai ntain all sui ts nece ss ary for the enf orc em ent of the law s of the Sta te, pr es ervat ion of ord er and the pr ote cti on of publ ic right s. ” Ga ndy v. Res erv e Lif e Ins. Co. , 279 So. 2d 648, 649 (M iss

. 1973) (c itat ions om itt ed)

. Sim ply put , this cas e tur ns on dif fer ent fac ts andla w than did Cal dw el l

. Sever al othe r st ates ’ att orne ys genera l and pr ivate plai ntif fs fil ed act ions agains t the 3 mak ers of LCD fla t pane ls bas ed on the sam e allege d cond uct that for ms the bas is for this sui t. Se e , e
. g
. , LG Di sp la

y Co., Ltd. v. Ma diga n , 665 F.3d 768 (7t h Cir. 2011) ; Illi noi s v. A U Op troni cs Corp. , 794 F. Sup p. 2d 845 (N .D

. Ill. 2011); South Caro li na v. AU Op troni cs Corp. , No. 3:11 –CV–731, 2011 WL 4344079 (D .S .C. Sep t. 14, 2011)

. Thes e cas es es se ntial ly fal l into tw o group s. Som e we re tra nsf err ed to an M DL cour t in the Nor ther n Di st ric t of Calif orni a. See In re TFT- LCD (Fl at Pane l) A n ti tr u s t L itig. , No. 07-1 827, 2011 WL 560593, at *1 (N .D

. Cal. Feb. 15, 2011)

. Ot hers , h o w e v e r, rem ained in the dis tri ct cour ts to wh ich they we re rem oved—t hes e c a s e s we re fir st fil ed in st ate cour t and involved st ates ’ att orne ys genera l
ass ert ing only stat e lawclaim s agains t the LCD def enda nts

. See, e. g. , South Caro li na , 2011 WL 434407 9 , a t * 2

. The MD L cour t handl ing the fir st group of cas es has exam ined st ates ’ inte res ts in the act ions “as a wh ole” wh en dec idi ng real -p art y-in- inte res t ques tio ns. See In re TFT- LCD , 2011 WL 560593, at *3–4. The dis tri ct cour ts dea ling wi th the se cond se t of cas es have done the sam e, cons ist entl y rem andi ng pa ren s pa tria e sui ts back to st ate cour t. See, e. g. , Illi noi s , 794 F. Sup p. 2d at 859; South Caro li na , 2011 WL 4344079 , at *2. But see Mi ssi ssi pp i
ex rel

. Ho od v. Entergy Mi ss. , Inc. , No. 3:08 -CV- 780, 2012 WL 3704935 , at *15 (S .D

. Mis s. Aug. 25, 2012) at*7 n. 6 ( fol low ing Cal dw el l beca use itbe lieveditw as “d uty bound” to do so ).

1 2 Case: 12-60704 Document: 00512061193 Page: 12 Date Filed: 11/21/2012No. 12-60704

r emoval are resolved in favor of remand.” Id. at 433 (citations omit t e d)

. Consistent with these principles, “when we decide whether a suit is removable under CAFA, we should determine what the case is, not what it must be if all the

r e l i e f requested is to be part of the litigation.” Id. at 432–33. Of course, this view did not carry the day in Caldwell , but the development of case law outside this circuit since then suggests that we should take another look. Consistent with Judge Southwick’s dissent , almost every court that has independently considered Caldwell’s claim-by-claim approach has either questioned or disagreed with it. Indeed, every court of appeals to address the 4 issue since Caldwell has rejected its approach. See AU Optronics Corp. v. South Carolina , ___F.3d___, Nos. 11–254 & 11–255, 2012 WL 5265799, at *6 (4th Cir. Oct. 25, 2012) (slip op.) (adop ting “the whole-case approach and rejecting the claim-by-claim approach”); Nevada v. Bank of Am. Corp. , 672 F.3d 661, 670 (9th Cir. 2012) (acknowledging the court’s adoption of “the approach of looking at the

case as a whole to determine the real party in interest, rather than the claim-byclaim approach adopted in Ca ld w e l l ” ) ; M a digan , 665 F.3d at 773–74 (referencing the courts that have questioned Caldwell’s analysis and holding that an action

was not a removable “mass action” under CAFA, even if the state was not a real
p a r t y in interest for damages claims). Each of these decisions includ e s convincing reasons to discard the claim-by-claim approach, a few o f which I discuss here.

See, e .g. , cas es c ite d sup ra n.2. Court s in othe r cont exts ( i. e. , non- LCD cas es ) have 4 als o dis agree d wi th Cal dw el l’s app roac h. See, e. g. , Wes t Vi rgin ia ex rel

. Mc Gr aw v. JPMo rgan Chas e & Co. , 842 F. Sup p. 2d984 , 997–98 (S .D

. W. Va. 2012) ; Connec ticut v. Mo ody’ s Corp

. , No. 3:10 -CV- 546, 2011 WL 63905, at * 2

– 3 (D

. Conn. Jan. 5, 2011) ; Mi sso uri ex rel

. Koste r v. Portf oli o Rec ove ry As soc s. , Inc. , 686 F. Sup p. 2d 942, 945–46 (E.D

. Mo

. 2010) ; Illi noi s v. SDS W. Cor p. , 640 F. Sup p. 2d 1047, 1052 (C. D. Ill. 2009)

. But se e Wes t V ir gini a ex rel

. Mc Gr aw v. Com ca st Corp

. , 705 F. Sup p. 2d 441, 449–50 (E. D. Penn. 2010) (c oncl udin g that Cal dw el l’s fr ame wo rkis c ons ist ent wi th CAFA’s goals ).

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First, the claim-by-claim approach does not find a foothold in CAFA’s text. T h e Caldwell court resorted to CAFA’s legislative history to rationalize its approach. 536 F.3d at 424; see Madigan , 665 F.3d at 773 (r e a s o n i n g that Caldwell “did not adopt the claim-by-claim approach based on any language in CAFA i t self, nor is there any such language to be found”). Perhaps that is because CAFA’s text does not suggest that, in a case in which a single plaintiff brings suit, a court should dissect the complaint to determine whether that plaintiff is the sole beneficiary of each basis for relief. This court has repeatedly cautioned against considering legislative history unless the text of a statute is ambiguous. See, e.g. , Carrieri v. Jobs.com Inc. , 393 F.3d 508, 518–19 (5th Cir.

5 2004); see also Chamber of Commerce of U.S. v. Whiting , 131 S. Ct. 1968, 1980 (2011) (“Con g r ess’s ‘authoritative statement is the statutory text, not the legislative history.’” (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc. , 545 U.S. 546, 568 (2005) (citations omitted)). There is no ambiguity here. Moreover,

even assuming arguendo that the l e gi s l ative development of CAFA were relevant, the Caldwell court ac k n o w l edged that CAFA’s history reveals conflicting expressions of intent. See 536 F.3d at 424 n.4; see also Harvey v. Blockbuster, Inc. , 384 F. Supp. 2d 749, 752–54 (D.N.J. 2005) (discussing CAFA’s legislative history and concluding that Congress did not intend to encroach on the ability of states’ attorneys general to bring parens patriae actions). Compounding t h e absence of textual support for the claim-by-claim
appr o a c h is the Supreme Court’s directive that removal statutes should be “strictly construed.” Syngenta Corp. Prot., Inc. v. Henson , 537 U.S. 28, 32 (2002). This rule undermines the argument that a case is removable under CAFA even

I have previous ly expres se d thatI genera lly esc hew the use of legis lati ve hist ory to 5 det erm ine a st atut e’s inte nt. See, e. g. , Vi ll as at Park si de Partne rs v. City of Farm ers Bran ch, Tex

. , 675 F.3d 802, 829 n.4 (5t h Cir. 2012) reh ’g en banc grante d , 688 F.3d 801 (5t h Cir. 2012)

.

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though it does not on its face satisfy the statute’s requirements. See Caldwell , 536 F.3d at 433 (Southwick, J., dissenting). Furthermore, the rule should apply with particular force when the pla i n t iff is a state that sued in its own courts. Removing such a case to federal cour t i m p l i cates important principles of federalism, and “considerations of comity [should] make us reluctant to snatch

cases which a State has brought from the courts of that State, unless some clear rule demands it.” Franchise Tax Bd. v. Constr. Laborers V a c a t i o n Trust , 463 U.S. 1, 21 n.22 (1983); see also West Virginia ex rel. McGraw v. CVS Pharmacy, I nc. , 646 F.3d 169, 178 (4th Cir. 2011), cert. denied , 132 S. Ct. 7 6 1 ( 2 0 1 1 ) (“While it is true that West Virg i n i a voluntarily entered into its own courts to enforce its laws, it did not voluntarily consent to removal of its case to a federal court, and a f

e d e r a l court should be most reluctant to compel such removal, reserving its c o nstitutional supremacy only for when removal serves an overriding federal interest.”). Finally, the impetus for Caldwell’s procedure to pierce the pleadings and look to the nature of each claim for relief—instead of considering the essential natu re and effect of the proceedings—does not provide a compelling basis to
pers i s t with that approach. At the outset of its opinion, the Caldwell court recognized that “Louisiana did not rais e a n y objections to [the district court’s] decision to pierce the pleadings or [its] procedure for doing so
. . . . As such, that issue [was] waived.” Caldwell , 536 F.3d at 425 ( e m p h a s is added). Therefore, while the Caldwell court referenced the proposition that “federal courts look to the substance of the action” when determining jurisdiction, id. at 424 (citations omitted), the court did n o t c onsider different methods for evaluating the substance ( e.g. , “as a whole,” as other circuits have done). The procedure stemming from the waived argument in Caldwell does not withstand the persuasive force of the analysis in the subsequent decisions rejecting it.

1 5 Case: 12-60704 Document: 00512061193 Page: 15 Date Filed: 11/21/2012No. 12-60704 II. B e yond the problems of using the claim-by-claim approach for the mass action analysis, I am also concerned that its application to CAFA’s gener al p ublic exception will negate the exception altogether in this circuit. CAFA tells us not only what a “mass action” is , but also what it is not

. See 28 U.S.C. § 1332(d)(11)(B)(ii)(I)–(IV). Specifically, the general public exception provides: [T]he term “mass action” shall not include any civil action in which

. . . all of the claims in th e action are asserted on behalf of the g eneral public (and not on behalf of individual claimants or member s of a purported class) pursuant to a State statute specifically authorizing such action. 28 U.S.C. § 1332( d) ( 1 1 ) ( B) (ii) (I I I)

. Th e majority opinion implicitly concludes that Caldwell ’s approach also governs our analysis of this exception. If that is correct, then there is no question that the exception does not apply in this case because, as the majority opinion states, “there is no way that ‘all of the claims’ are ‘asserted on behalf of the general public.’” This result is troublesome. If we deny the applicability of the general public excep t i o n when individual consumers are parties in interest, then, as a practical matter, we will have eliminated the exception in this circuit. Caldwell specifies that a case is

a mass action if more than 100 persons are the real parties in interest as to any claim for relief; and pursuant to CAFA’s plain text, the general public exception cannot apply unless the case is a mass action. Under this framewor k , i t i s difficult to imagine a case that could be a mass action that also falls within the general public exception. See, e.g. , Entergy Miss. , 2012 WL 3704935, at *7 n.6, *15 (following Caldwell and concluding that the general public exception could not apply because “[e]ven if the Sta t e h a s a quasi-sovereign interest in protecting Mississippi consumers
. . . the presence of the d i s c r e t e g roup of [citizens] who have a substantive legal right to receive restitution

. . . means that ‘all of the

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claims in the act i o n ’ a r e not asserted on behalf of the general public”). In
essence, our precedent has created a situation in which a case cannot satisfy the criteria of both the mass action provision and the general public exception. 6 The majority opinion states that this concern “mus t y i e l d to our responsibility to apply the unambiguous, express languag e of a statute as written,” but that misses the point. It is not CAFA’s plain text that causes the problem, but rather our a p p r o a c h in applying the text. But for the claim-byclaim approach, we could giv e e f f e c t to both the mass action provision and the general public exception. In CAFA, Congress defined a category of cases that 7

are mass actions and explicitly specified that certain cases “shall n o t” be included in that category. Our approach in applying the statute has essentially eliminated the latter provision, contrary to w e l l

- e stablished canons of construction that counsel against interpretations that render parts of a statute meaningless. See, e.g. , White v. Black , 190 F.3d 366, 368 (5th Cir. 1999) (citation omitted) (explaining that we must “give words their ordinary meaning and . . .

I note so me com m e ntar y cons ist ent wi th this conc ern. See Dw ight R. Cars we ll, 6 Com me nt, CAFA and Parens Patr iae Ac tions , 78 U. Chi. L. Rev. 345, 370 (201 1) (r eco gnizing that “[ l]a ws uits that se ek only injunct ive reli ef or mo ney that wi ll go t o t h e st ate tre asu ry rat her than to st ate cit izens are not mas s act ions as def ined by CAFA. Thus, it doe s not mak e se nse to argu e t h a t t h e s e are the only law sui ts that wi ll fal l wi thin the mas s act ion excep tio n.” ).

The majo rit y opi nion als o sugges ts that the genera l pu b l i c excep tio n is st atut ory 7
sur plas age unde r any analys is. In mak ing that ass ert ion, the majorit y opi nion conflat es the def ini tio n of “p ers ons ” in the mas s act ion pr ovis ion wi th “cl aim ants ” and “m em bers of a pur por ted clas s” in the gener al publi c excep tio n. See Russel l v. Law Enfor cem ent As si stanc e Adm in. , 637 F.2d 354, 356 (5t h Cir. 1981) ( r e c o g nizing the “w ell se ttl ed rule of st atut ory cons tru cti on thatwher e dif fer ent language is us ed in the sam e c onnec tio n in diff ere nt par ts of a st atut e it is pr es ume d that the Legis latur e inte nded a dif fer ent me aning and eff ect ,” and hold ing that a “ c l a i m a n t ” unde r one pr ovis ion wa s not an “ap pli cant or grant ee” wi thin the
me aning of anot her pr ovis ion (c itat ion om itt ed) ); cf

. Mo ham ad v. Pal esti nia n Auth. , 132 S. Ct. 1702, 1707–08 (201 2) (ho ldi ng that the ter m “ind ividua l” in the Tort ure Vict im Prot ect ion Act
me ant “nat ural per so n,” but reit erat ing that cour ts sho uld “re sp ect Congres s’ dec isi on to use dif fer ent ter ms t o d es cri be dif fer ent cat egori es of

p eop le or things ” (c itat ion om itt ed) ).

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n o t render as meaningless the language of a statute”); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (1st ed. 2012) (discussing th e “ s u r p lusage canon” of construction, which provides that “[i]f possible, every w o rd and every provision is to be given effect

. . . . None should be ignored. None should be given an interpretation that causes it

. . . to have no consequence. ” (emphasis added)). Therefore, we should rec o n s i d er Caldwell’s approach to ensure that every facet of CAFA may be given effect in our circuit. III. I concur in the judgment because the majority opinion is a fair application of our precedent in this challenging context. For the reasons above, however, we should reconsider that precedent and adopt a different approach for analyzing the removal of parens patriae suits under CAFA.

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