In the

United States Court of Appeals

For the Seventh Circuit

No. 11-8017

LG DISPLAY CO., LTD., et al.,

Petitioners,

v.

LISA MADIGAN, Attorney General of the State of Illinois,

Respondent.

Petition for Permission to Appeal

from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 1:10-cv-05720—Robert M. Dow, Jr., Judge.

SUBMITTED JULY 18, 2011—DECIDED NOVEMBER 18, 2011

Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.

TINDER, Circuit Judge. The Illinois Attorney General filed

suit in the Circuit Court of Cook County against eight

manufacturers of LCD panels for violations of the Illinois

Antitrust Act (“IAA”). The complaint alleges that the

defendants unlawfully inflated prices on LCD products

sold to the state, its agencies, and residents and requests

injunctive relief, civil penalties, and treble statutory
2 No. 11-8017

damages for the state as a purchaser and, as parens patriae,

for harmed residents. The defendants removed the case

to federal court under the Class Action Fairness Act of

2005 (“CAFA”), 28 U.S.C. §§ 1332(d), 1453. The Attorney

General moved to remand and argued that the suit

did not meet CAFA requirements and that, therefore, the

district court did not have jurisdiction. The district

court agreed and granted the motion to remand. The

defendants now petition for permission to appeal the

remand order.

In most situations, “[a]n order remanding a case . . .

is not reviewable on appeal or otherwise.” 28 U.S.C.

§ 1447(d); Anderson v. Bayer Corp., 610 F.3d 390, 394 (7th

Cir. 2010). The defendants argue, however, that the Attorney General’s parens patriae suit is actually a disguised

“class action” or “mass action” (and otherwise meets

CAFA requirements) and so, under CAFA, this court

may consider an appeal of the remand order. 28 U.S.C.

§ 1453(c). In addition, the defendants argue we should

grant their petition because this case presents unsettled

CAFA-related questions. Specifically, they note we have

yet to decide whether the “represented parties” in a parens

patriae action—in this case, Illinois purchasers of LCD

panels—are the real parties in interest (and so may

satisfy CAFA’s minimal diversity requirement) and

whether such an action may be removed as a class action

or mass action.

 As we explain below, we disagree with the defendants’

characterization of the case as a disguised class action

or mass action and, in this case, we are not convinced

that the petition should be granted because of its novelty.
No. 11-8017 3

To reach a functionally equivalent result—that a parens

patriae action such as this is not removable under

CAFA—at least two other circuits have granted petitions

to appeal and then denied the appeals on the merits.

Washington v. Chimei Innolux Corp., ___ F.3d ___, No. 11-

16862, 2011 WL 4543086 (9th Cir. October 3, 2011);

West Virginia ex rel. McGraw v. CVS Pharmacy, Inc., 646 F.3d

169, 179 (4th Cir. 2011). In this case, however, the proper

course is to deny the petition for lack of jurisdiction. See Lincoln Nat’l Life Ins. Co. v. Bezich, 610 F.3d 448,

449 (7th Cir. 2010); Anderson, 610 F.3d at 394. On limited

occasions we have concluded that we have jurisdiction

to grant a petition in a CAFA case that presents a significant novel issue. See Koral v. Boeing Co., 628 F.3d 945, 946

(7th Cir. 2011) (citing CAFA cases where petitions for

appeal have been granted “because the appeal presents

novel issues”); Brullard v. Burlington Northern Santa Fe

Ry., 535 F.3d 759, 761 (7th Cir. 2008) (granting a petition

because of a “novel” CAFA issue that had “not been

addressed in this or any other circuit”). But as the discussion below and the recent decisions from the Fourth

and Ninth Circuits illustrate, the novelty of this case is

superficial. And because the jurisdictional inquiry

overlaps with the merits, that is, whether this case falls

under CAFA, the fact that our approach is technically

different from what the Ninth and Fourth Circuits have

done in similar cases does not put us at odds with them.

To the contrary, we find their discussions of the relationship between parens patriae actions and CAFA helpful

and persuasive.

Before getting to the reasons why this parens patriae suit

is not a class action or mass action under CAFA, a little
4 No. 11-8017

background on parens patriae suits will be helpful. The

“parent of the country” action is rooted in the English

common-law concept of the “royal prerogative,” which

included the power of the king to act “as guardian of

persons under legal disabilities to act for themselves.”

Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972). In the

United States the “royal prerogative” and the king’s

parens patriae power passed to the states, and the scope

of parens patriae suits has expanded beyond what existed

in England. Id. A state will have standing to sue as

parens patriae where it can “articulate an interest apart

from the interests of particular private parties” and

“express a quasi-sovereign interest.” Alfred L. Snapp &

Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982).

A state, for example, “has a quasi-sovereign interest in

the health and well-being—both physical and economic—of its residents in general.” Id. To decide

whether a state’s interest pertains to “its residents in

general” as opposed to an “identifiable group of individual residents,” a court should consider the direct

and indirect effects of the alleged injury. Id. An “alleged

injury to the health and welfare of its citizens suffices

to give the State standing to sue as parens patriae [if] the

injury is one that the State, if it could, would likely

attempt to address through its sovereign lawmaking

powers.” Id. Although the American concept of parens

patriae is broad, it “does not involve the States stepping

in to represent the interests of particular citizens who,

for whatever reason, cannot represent themselves.” If

that is the case, “i.e., if the State is only a nominal party

without a real interest of its own—then it will not have

standing under the parens patriae doctrine.” Id. at 600.
No. 11-8017 5

We have jurisdiction over this parens patriae action

only if it is also (or actually) a “class action” or “mass

action.” As defined by CAFA, a class action is “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.” 28 U.S.C.

§ 1332(d)(1)(B). A mass action is “any civil action . . . in

which monetary relief claims of 100 or more persons

are proposed to be tried jointly on the ground that the

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 [28 U.S.C.

§ 1332(a)].” 28 U.S.C. § 1332(d)(11)(B)(i).

The district court reasoned that this suit cannot be a

class action because it was not filed under Rule 23 of the

Federal Rules of Civil Procedure or the state equivalent,

735 ILCS 5/2-801, but is instead a parens patriae suit

under the IAA. The defendants maintain that because the

IAA provides that “no person shall be authorized to

maintain a class action in any court of this State for

indirect purchasers asserting claims under this Act, with

the sole exception of this State’s Attorney General, who

may maintain an action parens patriae,” 740 ILCS 10/7,

the Illinois legislature “considers this parens patriae authority as a species of class action.”

But the phrasing of the IAA is insufficient to support

a conclusion that the Attorney General’s suit is really

a class action. A class action must be brought under
6 No. 11-8017

Rule 23 or the state equivalent. This case was brought

under the IAA, not Rule 23 or 735 ILCS 5/2-801. A class

action must be brought by a “representative person.” This

case was brought by the Attorney General, not by a

representative of a class. A class action must be brought

as a class action. This case was brought as a parens patriae

suit under the IAA, which does not impose any of the

familiar Rule 23 constraints. The IAA does not impose,

for example, requirements for adequacy, numerosity,

commonality, or typicality. Procedurally, Rule 23 and

the IAA are entirely different beasts.

This conclusion is consistent with recent decisions

from the Fourth and Ninth Circuits. In CVS Pharmacy, 646

F.3d at 172, the Fourth Circuit held that a parens patriae

suit brought by the Attorney General of West Virginia

alleging violations of the state generic drug statute and

state credit protection act was not removable as a class

action because the West Virginia laws did not include

provisions typical of a class action “addressing the adequacy of representation, numerosity, commonality, and

typicality.” In Chimei Innolux Corp., 2011 WL 4543086,

the Ninth Circuit reached the same conclusion about

parens patriae suits brought as by the Attorney Generals of

Washington and California alleging that defendants

conspired to fix prices on products containing LCD

panels. In affirming the district court’s remand order, the

Ninth Circuit expressly joined the Fourth Circuit and

explained: “The question under CAFA is whether the

state statute authorizes the suit ‘as a class action.’ The

statutes at issue here do not.” Id. at *3.
No. 11-8017 7

So, this case is not a class action. As a fallback, defendants argue that this case is a mass action because “monetary relief claims of 100 or more persons are proposed to

be tried jointly on the ground that the plaintiffs’ claims

involve common questions of law or fact.” 28 U.S.C.

§ 1332(d)(11)(B)(i). Here, however, only the Illinois Attorney General makes a claim for damages (among other

things), precisely as authorized by the IAA. By the plain

language of § 1332, this suit is not removable as a mass

action. Anderson, 610 F.3d at 393. Moreover, a suit is not

a mass action under 28 U.S.C § 1332(d)(11)(B)(ii)(III) if

“all of the claims in the action are asserted on behalf

of the general public (and not on behalf of individual

claimants or members of a purported class) pursuant to

a State statute specifically authorizing such action.” By

the plain language of that provision, too, this case is not

a mass action.

Against this, the defendants argue that if we consider

what’s really going on in this suit, we will see that

Illinois resident purchasers are the real parties in

interest and, building on that premise, conclude that

the 100 or more plaintiffs, minimal diversity, and amountin-controversy requirements are met. To reach the conclusion that Illinois resident purchasers are the real

parties in interest, however, the petitioners ask us to

separately determine the parties in interest in each of

the Attorney General’s claims. They concede that the

state is the real party in interest for the enforcementrelated claims, but they deny that the state is the real

party in interest for the damages claims asserted on

behalf of Illinois consumers.
8 No. 11-8017

The petitioners find support for that kind of claim-byclaim approach in Louisiana ex rel. Caldwell v. Allstate

Insurance Co., 536 F.3d 418 (5th Cir. 2008), and West Virginia

ex rel. McGraw v. Comcast Corp., 705 F. Supp. 2d 441 (E.D.

Pa. 2010). In Allstate, the Fifth Circuit affirmed the denial

of a motion to remand a suit filed by the State of

Louisiana “along with counsel from a number of private

law firms” against several insurance companies for

alleged violations of the Louisiana Monopolies Act. 536

F.3d at 422. Although the suit was brought as a parens

patriae action, the defendants argued that the suit was

actually a class action or mass action under CAFA

because Louisiana sought treble damages for Louisiana

insurance policyholders. Id. at 423. The district court

pierced the pleadings to determine the real nature of

Louisiana’s claims—an action that, the Fifth Circuit

noted, Louisiana did not object to on appeal—and concluded that removal was appropriate because Louisiana

policyholders were the real parties in interest. Id. at 425.

In affirming the district court’s decision, the Fifth

Circuit emphasized that, “[i]n passing CAFA, Congress

emphasized that the term ‘class action’ should be

defined broadly to prevent ‘jurisdictional gamesmanship.’ ” Id. at 424.

In Comcast, a Pennsylvania district court concluded that

a parens patriae antitrust and consumer protection suit

brought by West Virginia was removable as a class

action under CAFA. Examining West Virginia’s interest

in the suit to determine whether CAFA’s minimal diversity requirement had been met, the district court

followed Allstate’s claim-by-claim approach and deter-
No. 11-8017 9

mined that there was minimal diversity because West

Virginia consumers were the real parties in interest for

West Virginia’s treble damages claim. 705 F. Supp. 2d at

447, 450. The district court believed that claim-by-claim

analysis “is most consistent with Congress’s intent under

CAFA to expand federal jurisdiction over class actions.” Id.

In this case, the district court rejected the claim-byclaim analysis used in Allstate and Comcast. The district

court was in good company; claim-by-claim analysis

has been questioned by a number of courts. See In re TFTLCD (Flat Panel) Antitrust Litig., MDL No. 1827, 2011 WL

560593, *3 (N.D. Cal. Feb. 15, 2011); Missouri ex rel. Koster v.

Portfolio Recovery Assocs., Inc., 686 F. Supp. 2d 942, 945-46

(E.D. Mo. 2010); Illinois v. SDS West Corp., 640 F. Supp. 2d

1047, 1050-53 (C.D. Ill. 2009). Instead, the district court

“look[ed] to the complaint as a whole” and concluded

that the State is the real party in interest. We agree with

the district court’s approach. Whether a state is the

real party in interest in a suit “is a question to be determined from the ‘essential nature and effect of the proceeding.’ ” Nuclear Engineering Co. v. Scott, 660 F.2d 241,

250 (7th Cir. 1981) (quoting Ford Motor Co. v. Dep’t of

Treasury, 323 U.S. 459, 464 (1945)). The courts in Allstate

and Comcast did not adopt the claim-by-claim approach

based on any language in CAFA itself, nor is there any

such language to be found. The Fifth Circuit rationalized

its claim-by-claim approach as consistent with Congress’

intent to broaden federal jurisdiction over class actions

through CAFA. But, as Judge Illston pointed out in her

order remanding the parens patriae actions filed by the

State Attorney Generals of California and Washington,
10 No. 11-8017

just because CAFA was meant to expand federal courts’

jurisdiction over class actions, it does not follow that

“federal courts are required to deviate from the traditional ‘whole complaint’ analysis when evaluating

whether a State is the real party in interest in a parens

patriae case.” In re TFT-LCD (Flat Panel) Antitrust Litig., 2011

WL 560593, *3. See also First Bank v. DJL Prop., LLC, 598

F.3d 915, 917 (7th Cir. 2010) (“It does not follow from

the fact that the 2005 Act expands the set of removable

cases that it must use ‘defendant’ in a novel way.”).

Restraint is particularly appropriate in light of the

Supreme Court’s directive that removal statues should

be “strictly construed,” Syngenta Crop Protection, Inc. v.

Henson, 537 U.S. 28, 32 (2002), and the sovereignty

concerns that arise when a case brought by a state in its

own courts is removed to federal court. As the Supreme

Court has noted, “considerations of comity 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. Construction Laborers Vacation

Trust, 463 U.S. 1, 21 n.22 (1983). See also CVS Pharmacy,

646 F.3d at 178 (“While it is true that West Virginia 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 federal court should be most

reluctant to compel such removal, reserving its constitutional supremacy only for when removal serves an overriding federal interest.”).

The district court correctly determined that this case

is not a class action or mass action under CAFA. We
No. 11-8017 11

therefore lack jurisdiction over an appeal from the district

court’s remand order. The petition for leave to appeal

is DENIED.

11-18-11