Mississippi ex rel. Hood v. AU Optronics Corp.

• Decision Date: 21 November 2012
• Docket Number: No. 12–60704.,12–60704.
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

701 F.3d 796

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.

No. 12–60704.

United States Court of Appeals, Fifth Circuit.

Nov. 21, 2012.

Meredith McCollum Aldridge, Geoffrey C. Morgan, Sp. Asst. Atty. Gens., George W. Neville, Office of the Atty. Gen., Jackson, MS, Carolyn Glass Anderson, Patricia A. Bloodgood, David Michael Cialkowski (argued), Kirsten D. Hedberg, Zimmerman Reed, P.L.L.P., Minneapolis, MN, for Plaintiff–Appellee.

Luther T. Munford, James William Shelson, Phelps Dunbar, L.L.P., Stephen Lee Thomas, Bradley Arant Boult Cummings, L.L.P., Thomas C. Gerity, Wyatt, Tarrant & Combs, L.L.P., Walter Helms Boone, Forman, Perry, Watkins, Krutz & Tardy, L.L.P., Philip William Thomas, Law Offices of Phillip W. Thomas, P.A., Charles Edwin Ross (argued), Rebecca Hawkins, Michael Brunson Wallace, Wise Carter Child & Caraway, P.A., Jackson, MS, Christopher A. Nedeau, Nossaman, L.L.P., Michelle Kim–Szrom, Kent M. Roger, Morgan, Lewis & Bockius, L.L.P., John M. Grenfell, Jacob R. Sorenson, Pillsbury Winthrop Shaw Pittman, L.L.P., San Francisco, CA, Harrison J. Frahn, IV, Simpson Thacher, Palo Alto, CA, Hugh F. Bangasser, Ramona M. Emerson, Christopher M. Wyant, K&L Gates, L.L.P., Seattle, WA, Robert Arrington Miller, Patrick Ryan Beckett, John Adam Crawford, Jr., Butler, Snow, O'Mara, Stevens & Cannada, P.L.L.C., Cecil Maison Heidelberg, Heidelberg Harmon, P.L.L.C., Ridgeland, MS, Michael R. Lazerwitz, Cleary Gottlieb Steen & Hamilton, L.L.P., Timothy C. Hester, Covington & Burling, L.L.P., Andrew Lovelace Black, White & Case, L.L.P., Washington, DC, John H. Chung, Ross Elfand, Kristen McAhren, White & Case, L.L.P., New York City, for Defendants–Appellants.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOLLY, CLEMENT and ELROD, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Appellants, manufacturers 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 the Class 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. Accordingly, 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 remand 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.2009).

II.

Under the CAFA, removal of a suit to federal court is proper if the suit qualifies as a “class action” or a “mass action.” See 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 question 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 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). Because Mississippi did not bring this suit under 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, 1214 (Miss.2002) (“[T]he rule is that Mississippi does not permit class actions, even equitable class 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, seeMiss.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 the suit 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 plaintiffs' claims 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 that the present suit involves “monetary relief” claims, see Compl. 54, ¶¶ 2, 3, and that the relief sought satisfies the amount in controversy 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.

In Louisiana ex rel. 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 (“It is 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 recognized that defendants may pierce the pleadings to show that the claim has been 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., Nevada v. Bank of Am. Corp., 672 F.3d 661, 670 (9th Cir.2012); LG Display Co., Ltd. v. Madigan, 665 F.3d 768, 774 (7th Cir.2011). Caldwell, binding precedent 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.” Richards v. Reed, 611 F.2d 545, 546 n. 2 (5th Cir.1980) (inset quotations omitted); Charles Alan Wright & Mary Kay Lane, Law Of Federal Courts 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 who purchased the products within Mississippi possess “rights sought to be enforced.” We have several bases for this conclusion.

First, the complaint: When the State 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 consumers who were 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 whole. See Compl. 2, ¶ 1 (“[T]he State of Mississippi has a quasi-sovereign 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 times, the Complaint indicates the injury it seeks to 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...