ORDER
Pending before the Court is the plaintiffs motion to remand. Docket No. 19. The defendants have responded in opposition, Docket No. 25, the plaintiff has replied, Docket No. 29, and the Court is ready to rule. The motion to remand will be granted.' Also pending is the defendants’ motion to strike portions of the plaintiffs reply brief. Docket No. 30. That motion is fully briefed, see Docket Nos. 31 & 33, and will be granted.
I. Factual and Procedural History
On March 25, 2011, the State of Mississippi filed a complaint in the Chancery Court of Hinds County alleging that the deféndants had engaged in price-fixing in violation of the Mississippi Consumer Protection Act (“MCPA”), Miss.Code § 75-24-1 et seq., and the Mississippi Antitrust Act (“MAA”), id. § 75-21-1 et seq. Docket No. 1-1.
The action was brought by the Attorney General of Mississippi, who sought to protect the State’s “quasi-sovereign interest” in its economy and its citizens’ economic well-being. Id. at 3. The State claimed that the number of citizens harmed by the defendants’ conduct is “a sufficiently substantial segment of the State’s population to establish Mississippi’s quasi-sovereign interests, as relief is sought on behalf of all local governmental entities and consumers (not limited groups of private parties) who bought a wide range of price-fixed products.” Id. at 4. With this and other language, the Attorney General invoked his authority to file suit as parens patriae on behalf of the State and its citizens. Id. at 3-4.
The defendants are companies that manufactured, marketed, sold, and/or distributed LCD panels, which are components of computers, televisions, and a wide variety of other electronic devices. Id. at 4-9. According to the State, the defendants formed an international cartel that conspired to artificially limit the supply and increase the price of LCD panels between
It was further alleged that several of the defendants and their co-conspirators had pled guilty to criminal charges brought by the United States Department of Justice for this conduct and paid more than $890 million in criminal fines to the United States government. Id. at 3 and 38-39. The State claimed that none of those fines were dedicated to recompense Mississippi’s consumers and governmental entities, nor were funds set aside for civil penalties owed to States under state laws. Id. at 3.
The State sought the following relief: (1) a permanent injunction prohibiting the defendants from continuing to engage in anti-competitive behavior; (2) civil penalties of $10,000 per LCD panel product sold in Mississippi during the relevant time period, pursuant to the MCPA
On June 9, 2011, the defendants jointly removed the case to this Court. Docket No. 1. They asserted that federal jurisdiction was satisfied under the Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d) and 1453. Id. at 4. That law establishes federal jurisdiction over certain suits determined to be “class actions” or “mass actions.” 28 U.S.C. § 1332(d). The defendants further asserted that a federal question existed pursuant to the Sherman Act, 15 U.S.C. §7 et seq. Docket No. 1-1, at 10.
Shortly thereafter, the United States Judicial Panel on Multidistrict Litigation issued a Conditional Transfer Order transferring this case to the United States District Court for the Northern District of California, where Judge Illston presides over a number of other suits against LCD panel manufacturers. Docket No. 19-1; see In re TFT-LCD (Flat Panel) Antitrust Litig., No. C07-1827,
II. Standard of Review
“The party seeking removal bears the burden of showing that federal jurisdiction is proper.” Lone Star OB/GYN Assoc. v. Aetna Health Inc.,
III. Discussion
The defendants claimed two independent sources of federal jurisdiction: diversity jurisdiction under CAFA and a federal question presented under the Sherman Act. Each will be evaluated below. The Court will begin, though, with a discussion of parens patriae actions and a summary of a significant Fifth Circuit case that addressed some of the issues presented here.
A. The Nature of These Actions
“The concept of parens patriae stems from the English constitutional system, where the King retained certain duties and powers, referred to as the ‘royal prerogative,’ which he exercised in his capacity as ‘father of the country.’ ” Louisiana ex rel. Caldwell v. Allstate Ins. Co.,
Parens patriae actions are brought to protect a state’s “quasi-sovereign interests,” which include interests in “the health and well-being — both physical and economic — of its residents in general ... [and] not being discriminatorily denied its rightful status within the federal system.” Snapp,
The Supreme Court “has not attempted to draw any definitive limits on the proportion of the population of the State that must be adversely affected by the challenged behavior.” Snapp,
There is a debate, both in our case and in the wider legal community, over whether parens patriae suits are class actions brought under a different label or sui generis. Parens patriae actions are certainly a form of representative action, and “attorneys general often hire plaintiffs’ lawyers to help prosecute parens patriae suits.... [T]he conceptual similarity between [class actions and parens patriae actions] is unavoidable.” Lemann, 111 Colum. L.Rev. at 133 (citations omitted).
That said, distinctions can be identified. For one, an attorney general is not a true class representative. “Rather, in representing the citizens, the State [through its Attorney General] acts more in the capacity of trustee representing beneficiaries or a lawyer representing clients, neither of which is the type of representation essential to the representational aspect of a class action.” West Virginia ex rel. McGraw v. CVS Pharmacy, Inc.,
There also are procedural differences between the two. See id. at 175-76; Madigan,
The Fifth Circuit has found that a par-ens patriae suit may, in certain circumstances, constitute a CAFA mass action. Caldwell,
B. The Fifth Circuit’s Decision in Caldwell
Because Caldwell controls our case and its interpretation is contested by the parties, it will be summarized here.
In Caldwell, the Attorney General of Louisiana filed suit against a number of insurance companies and their business partners, claiming that they had “continuously manipulated Louisiana commerce by rigging the value of policyholder claims and raising the premiums.” Id. at 422 (quotation marks omitted). The complaint alleged that the defendants had systematically undervalued and underpaid policyholders’ property claims in the aftermath of Hurricanes Katrina and Rita. Id. at 422-23. The suit, which was styled as a parens patriae action and filed in Louisiana state court, sought forfeiture of illegal profits, treble damages, and injunctive relief. Id. at 423.
The defendants removed the case to the United States District Court for the Eastern District of Louisiana, arguing federal jurisdiction under CAFA. Id. The district court determined that the real parties in interest were the individual policyholders who had been harmed, and reasoned that the suit was “really an artfully pled class action.” Transcript of Hearing at 32, State of Louisiana v. Allstate Ins. Co., No. 07-9409 (E.D.La. Apr. 2, 2008) (“Caldwell Transcript”). The district court rejected the argument that the suit was a CAFA mass action. Id. at 21.
The Fifth Circuit affirmed on different grounds. It analyzed the complaint claim-by-claim, finding that Louisiana was a real party in interest as to the injunctive relief and that the policyholders were real parties in interest with respect to the treble damages. Caldwell,
Judge Southwick, in dissent, concluded that the suit was neither a class action nor a mass action as CAFA defines those terms. Id. at 433 (Southwick, J., dissenting). The Attorney General’s complaint did not invoke the federal or state class action rules, and the mass action provision could not be invoked by a defendant seeking to join additional parties. Id. at 434-35. Instead, Judge Southwick argued that Louisiana’s courts had jurisdiction over the complaint as it was pled and should first resolve whether the Attorney General
C. The Present Dispute
1. The Class Action Fairness Act
“Congress enacted CAFA to encourage federal jurisdiction over interstate class action lawsuits of national interest.” Preston v. Tenet Healthsystem Mem’l Med. Ctr., Inc.,
To establish jurisdiction under CAFA, the removing party must first show that the parties are minimally diverse, which means that:
(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;
(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or
(C)any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.
28 U.S.C. § 1332(d)(2)(A)-(C). The removing party must then prove that the action is a class action or a mass action.
A CAFA 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.” Id. § 1332(d)(1)(B). A class action must have 100 or more “members of all proposed plaintiff classes” and an aggregate amount in controversy in excess of $5 million. Id. § 1332(d)(2), (d)(5)(B), and (d)(6).
CAFA defines a mass action as:
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 subsection (a).
Id. § 1332(d)(ll)(B)(i). The jurisdictional amount requirement in 28 U.S.C. § 1332(a) is $75,000. Id. § 1332(a). Therefore, in a mass action, federal courts have jurisdiction “only” over plaintiffs whose individual claims exceed $75,000, exclusive of interest and costs. Id. § 1332(a) and (d)(ll)(B)(i). Mass actions may not be transferred to a multidistrict litigation court “unless a majority of the plaintiffs in the action request transfer!” Id. § 1332(d)(ll)(C)(i).
2. Arguments
The State argues that when the complaint is viewed as a whole, the real party in interest is the State of Mississippi, not its citizens and local governments. Docket No. 20, at 5-7. Because the State is not a ‘citizen’ for purposes of diversity jurisdiction, it concludes that there is no minimal diversity. Id. at 5. The State next claims that the action is not a CAFA class action because it was not filed pursuant to Federal Rule of Civil Procedure 23 or an analogous state rule; in fact, Mississippi lacks a class action rule. Id. at 9-10. Finally, the State argues that its suit is not a mass action pursuant to an exception in CAFA denying mass action status to suits brought on behalf of the general public. Id. at 10-11.
The defendants agree that the State is the real party in interest as to the damages it seeks on its own behalf, civil penalties, and injunctive relief. Docket No. 25, at 6. They argue, though, that because the complaint also seeks damages for injuries incurred by Mississippi’s consumers and local governments, those consumers and local governments are also real parties in interest. Id. at 6-9. Because Mississippi’s consumers and local governments are obviously citizens of Mississippi, and none of the defendants are citizens of Mississippi, the defendants conclude that minimal diversity is established. Id. The defendants next challenge the State’s interpretation of “class action,” claiming that this suit is one •within the meaning of CAFA. Id. at 9-12. Finally, they argue that the suit is a mass action that does not fall into the State’s claimed statutory exception, again because “individual Mississippi consumers are the real parties in interest when the State seeks to recover damages on their behalf in a representative capacity.” Id. at 12.
In its reply, the State explains in more detail its contention that parens patriae actions are procedural vehicles separate and distinct from class actions. Docket No. 29, at 5-9. It again claims that mass action status should be denied because the case is brought on behalf of the general public, arguing that the products at issue “are ubiquitous in modern life and inflated prices for these products would affect nearly every single Mississippi resident.” Id. at 12 n. 6.
3. The Defendants’ Motion to Strike
The State’s reply brief then argues that the defendants failed to prove CAFA’s amount in controversy requirements. Id. at 13-17. It denies that the defendants have put forward any evidence that the aggregate amount sought in the complaint exceeds $5 million and that at least one consumer or local government seeks more than $75,000. . Id. The State claims that the defendants were required to provide such proof in their Notice of Removal. Id. at 14-16. Finally, it recites that if this case is a mass action, the Court should bifurcate the suit. Id. at 19.
The defendants have moved to strike these arguments, claiming that these grounds were not briefed in the State’s original motion to remand. Docket No. 30, at 2-3. In the alternative, the defendants ask for leave to file a sur-reply and attach affidavits to establish the amount in con
The defendants’ motion is well-taken and will be granted. The State should have presented all of its arguments for remand in its original motion. Kennedy v. BAE Sys. Info. Tech., Inc., No. 1:09—cv-254,
4. Analysis
a. Minimal Diversity
The State of Mississippi is not a ‘citizen’ for purposes of diversity jurisdiction. In re Katrina Canal Litig. Breaches,
“[T]he ‘real party in interest’ is the party who, by substantive law, possesses the right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery.” Richards v. Reed,
In Caldwell, the property insurance policyholders who had been injured by the defendants’ conduct were considered real parties in interest as to the claim for treble damages, because Louisiana law granted the policyholders the right to bring suit on their own for those damages.
We conclude that as far as the State’s request for treble damages is concerned, the policyholders are the real parties in interest. The text of § 137 of the Monopolies Act, which authorizes the recovery of treble damages, plainly states that “any person who is injured in his business or property” under the Monopolies Act “shall recover[] treble damages.” The plain language of that provision makes clear that individuals have the right to enforce this provision. Accordingly, we agree with the district court and hold that under § 137 the policyholders, and not the State, are the real parties in interest.
Caldwell,
These statutes afford local governments similar rights. The MCPA provides a remedy to “any person who purchases or leases goods or services primarily for personal, family or household purposes” who is injured by a prohibited business practice. Miss.Code § 75-24-15(1). A local government is considered a person under the law, id. § 75-24-3(a), and at least one state court has found that a governmental entity purchases goods for its own, “personal” uses, id. § 75-24-15(1). Hood ex rel. State v. BASF Corp., No. 56863,
As a result, the State of Mississippi, its consumers, and its local governments are all real parties in interest in this action. While the State has no citizenship for purposes of diversity jurisdiction, Mississippi’s consumers and local governments are obviously citizens of Mississippi. Counting their citizenship, and seeing that no defendant is a citizen of Mississippi, CAFA’s requirement of minimal diversity has been met. See 28 U.S.C. § 1332(d)(2)(A).
b. Class Action
This suit is not a CAFA class action because it was not brought pursuant to Federal Rule of Civil Procedure 23 or a “similar State statute or rule of judicial procedure.” Id. § 1332(d)(1)(B). The action was not originally filed in federal court under Rule 23 and the parties agree that Mississippi has no rule permitting class actions.
In a recent decision addressing issues much like our own, Judge Fallon of the Eastern District of Louisiana found that “Congress chose to define ‘class action’ not
The defendants in our case interpret CAFA more broadly. They rely upon CAFA’s legislative history to argue that “generally speaking, lawsuits that resemble a purported class action should be considered class actions for the purpose of applying CAFA.” Docket No. 25, at 11 (brackets omitted) (quoting S.Rep. No. 109-14, at 35). But the word “resemble” is not found in 28 U.S.C. § 1332(d). That omission leads to an ongoing debate about whether the Senate Report relied upon by the defendants is a reliable source to discern Congress’s intent in enacting CAFA.
The Fourth Circuit has found that the Senate Report in question “was issued 10 days after CAFA was signed into law, and for that reason alone, it is a questionable source of congressional intent.... Post hoc statements of a congressional Committee are not entitled to much weight.” McGraw,
The Eleventh Circuit thought the Senate Report of greater value, observing that although it “was issued ten days following CAFA’s enactment, it was submitted to the Senate on February 3, 2006 — while that body was considering the bill.” Lowery v. Alabama Power Co.,
“[A] powerful line of Supreme Court authority suggests that legislative history should rarely be used in statutory inter
Because CAFA unambiguously defines class action, it is unnecessary to consider the legislative history on this point. This Court will apply the “understandable bright-line rule” articulated in Vioxx,
The conclusion that this suit is not a class action accords with rulings by the Fourth, Seventh, and Ninth Circuits. Id. at 660-64 (citing Madigan,
c. Mass Action
Under Caldwell, this suit is a mass action. It is a 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.” 28 U.S.C. § 1332(d)(ll)(B)(i). Caldwell stands for the proposition that the words “persons” and “plaintiffs” in this sub-section are to be defined as “real parties in interest.” Here, as there, this suit is a mass action because there are more than 100 real parties in interest that seek a joint trial on common questions of law or fact.
Other courts have found the general public exception to exclude parens patriae suits from federal jurisdiction. See Madigan,
Whether the general public exception can be invoked in the Fifth Circuit is contested. Caldwell determined that the State of Louisiana’s suit was a mass action without addressing whether the exception applied. One possible reason for this is that the Attorney General of Louisiana failed to argue the exception to the Fifth Circuit. See Brief of Appellant, State of Louisiana ex rel. Caldwell v. Allstate Ins. Co., No. 08-30465,
With no such procedural default here, this Court will proceed to consider whether this action satisfies CAFA’s general public exception.
i. “Claims ... Asserted on Behalf of the General Public”
The exception first states that all of the claims in the suit must be asserted on behalf of the general public, not individuals or a purported class. 28 U.S.C. § 1332(d)(ll)(B)(ii)(III). The facts of Caldwell would not have satisfied this requirement. The State of Louisiana’s claim for treble damages was brought on behalf of a limited subset of its population: those policyholders who had paid premiums to certain defendants for particular kinds of insurance policies. See Ohio v. GMAC Mortg., LLC,
In contrast, the complaint in our case alleges that the défendants, who control over 80% of the ' market for LCD panels, have substantially affected a product contained in laptops, desktop computer monitors, mobile phones, digital cameras, video cameras, televisions, motor vehicles, and other electronic devices commonly used and purchased in everyday life. Docket No. 1-1, at 4 and 17.
There also are significant differences between the insurance market at issue in Caldwell and the electronics market here that broaden the latter’s reach into the general population. The insurance industry has a paper trail documenting each agreement between insured and insurer, and more importantly, each insured is readily identifiable. But electronics retailers permit customers to pay with cash and do not record personally identifiable information on every transaction. It is unlikely that the defendants have records identifying every Mississippian who purchased a product containing a LCD panel between 1996 and 2006. There also is a person-to-person resale market of electronic goods that does not exist in the insurance industry, which further expands the percentage of the population affected by the violations alleged in this suit. Moreover, the sheer number of LCD panel products purchased and used by consumers — including computers, mobile phones, toys, car navigation systems, and televisions, among others— indisputably fall within the state’s quasi-sovereign interest. If this collection of items did not implicate the overall economic well-being of Mississippi’s citizens, then the Court would be hard pressed to find something which does.
ii. Pursuant to a “Statute Specifically Authorizing Such Action”
The second and final element of the general public exception is satisfied, as the claims in this action are brought under state statutes specifically authorizing these kinds of suits.
The Attorney General of Mississippi is generally empowered by a state law granting him “the powers of the Attorney General at common law.” Miss.Code § 7-5-1; see Hood ex rel. Mississippi v. Microsoft Corp.,
More specifically, the MCPA and the MAA provide statutory grounds for the relief sought in this suit. Under the MCPA,
[w]henever the Attorney General has reason to believe that any person is using, has used, or is about to use any method, act or practice prohibited by Section 75-24-5, and that proceedings would be in the public interest, he may bring an action in the name of the state against such person to restrain by tern*775 porary or permanent injunction the use of such method, act or practice.
Miss.Code § 75-24-9. The next section confirms that in those suits, “[t]he court may make such additional orders or judgments, including restitution, as may be necessary to restore to any person in interest any monies or property, real or personal, which may have been acquired by means of any practice prohibited by this chapter.” Id. § 75-24-11. Civil penalties, investigative costs, and reasonable attorney’s fees are authorized by a later section. Id. § 75 — 24—19(l)(b).
The MAA not only authorizes persons to recover damages for anti-competitive behaviors, id. § 75-21-9, but permits the Attorney General and the Attorney General alone to recover civil penalties for those behaviors, id. § 75-21-7. “This statute clearly gives the Attorney General of the State the authority to bring suit in the name of the State for violations of Mississippi antitrust law.” Moore ex rel. State of Miss. v. Abbott Laboratories, Inc.,
Taken together, these statutes authorize the Attorney General to receive all of the relief sought in the complaint. Because “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),” and are brought “pursuant to a State statute specifically authorizing such action,” this suit satisfies the general public exception. 28 U.S.C. § 1332(d)(ll)(B)(ii)(III).
Having determined that this case is neither a class action nor a mass action that does not fall into a statutory exception, the case will be remanded to state court.
D. The Future of This Case
An exception to the usual law of remand permits the defendants to seek an immediate appeal. See Road Home,
If returned here as a mass action, the case will be severed in accordance with the command of 28 U.S.C. § 1332(d)(ll)(B)(i). The State’s interests in permanent injunctive relief; civil penalties; restitution for losses incurred by the State in its proprietary capacity; and restitution for losses incurred by individuals
The defendants argue that the State’s request for punitive damages suffices to permit every individual claim to remain in federal court, because the aggregate amount of punitive damages exceeds $75,000 and is imputed to each individual. Docket No. 1, at 8 (citing Allen v. R & H Oil & Gas Co.,
It is not clear how much in restitution the State is seeking on behalf of individuals. Assuming without deciding that this case merits punitive damages under Mississippi law, the parties are bound by constitutional limits on punitive damages. See State Farm Mut. Auto. Ins. Co. v. Campbell,
Whether the case will develop in that fashion remains to be seen; the purpose of this section is to minimize the necessity for a second appeal on a jurisdictional question by resolving the parties’ dispute over Allen. This Court recognizes uncertainty about the application of the $75,000 amount in controversy clause, see Lowery,
There is another practical concern that could be clarified on appeal. In a later part of CAFA — in a sub-section not presented to the Caldwell court — the statute states that mass actions removed to federal court “shall not thereafter be transferred to any other court pursuant to section 1407, or the rules promulgated thereunder, unless a majority of the plaintiffs in the action request transfer
The concern is this: in our case, who may grant or deny such consent? The State of Mississippi is the ■ sole plaintiff. While Mississippi’s consumers constitute hundreds of thousands if not millions of real parties in interest, they are not plaintiffs and there is no mechanism through which they can consent to transfer this case to a MDL court. In Caldwell, the real parties in interest were fewer and identifiable, and there was an opportunity for them to be found and offered a chance to participate in the ease pursuant to the statute. In contrast, applying this subsection to our real parties in interest would require a substantial number of people to be polled about their preferred forum. This is not an outcome directed by the plain language of CAFA. Nor is it one that comports with traditional standards of judicial economy and efficiency. See State of N.J. v. State of N.Y.,
E. Federal Question Under the Sherman Act
As recited above, “[t]he party seeking removal bears the burden of showing that federal jurisdiction is proper,” Lone Star,
1. Arguments
The State contends that state antitrust remedies supplement federal remedies and are not completely preempted by them. Docket No. 20, at 11-12. It claims that the defendants’ commercial activities are subject to the MAA and that any substantive defect in the complaint is for the state courts to resolve. Id. at 13-15. The State argues that federal question jurisdiction here is foreclosed by existing Supreme Court caselaw. Docket Nos. 20, at 11-12; 29, at 17-19.
The defendants respond that the Sherman Act, 15 U.S.C. §7 et seq., completely preempts Mississippi’s antitrust laws in this instance because the alleged violations are interstate and international in nature. Docket No. 25, at 14. “Mississippi antitrust laws apply only to intrastate activity.” Id. (citing Standard Oil Co. of Ky. v. State,
2. Discussion
“We start with the long-established axiom that a plaintiff is master of his complaint and may generally allege only a state law cause of action even where a federal remedy is also available.” Bern-
The defendants have invoked “the ‘artful pleading’ doctrine, which is an ‘independent corollary’ to the well-pleaded complaint rule.” Bernhard,
“[A] state claim may be removed to federal court ... when a federal statute wholly displaces the state-law cause of action through complete pre-emption.” Beneficial Nat’l Bank v. Anderson,
“The question in complete preemption analysis is whether Congress intended the federal cause of action to be the exclusive cause of action for the particular claims asserted under state law.” Elam v. Kansas City S. Ry. Co.,
The Supreme Court has concluded that “Congress intended the federal antitrust laws to supplement, not displace, state antitrust remedies.” California v. ARC America Corp.,
The defendants concede the existence of ARC America, even as they observe that it did not address Mississippi law. Docket No. 25, at 15. They have not pointed to any statute indicating that Congress intended federal antitrust laws to completely preempt state antitrust laws and be the exclusive remedy for claimed violations of state antitrust laws. The defendants further acknowledge that “the Fifth Circuit has not decided whether a Mississippi state antitrust claim based on interstate activity is preempted by the Sherman Act,” and rely instead upon two district court decisions in New York that allegedly found state antitrust laws preempted. Docket Nos. 1, at 11; 25, at 17-18.
That is not enough. The defendants have not met their burden to show that federal antitrust laws completely preempt Mississippi’s antitrust laws. There is no federal question jurisdiction. See Adams v. General Motors Acceptance Corp.,
TV. Conclusion
The Attorney General of Mississippi filed this action in a Mississippi state court, to enforce Mississippi’s consumer protection and antitrust laws, for the protection of the economic well-being of Mississippi’s consumers and governmental entities. See McGraw,
Notes
. Civil penalties recovered under the MCPA are divided evenly between the Attorney General's Office of Consumer Protection and the General Fund of the State of Mississippi. Miss.Code § 75-24-19(l)(b).
. In Hawaii v. Standard Oil, the Supreme Court held that the Clayton Act did not permit the State of Hawaii to seek damages for its citizens via a parens patriae suit alleging antitrust violations. Hawaii,
. While Maryland was brought in the Supreme Court as an original action, it remains a helpful explanation of the parens patriae authority.
. Caldwell was “groundbreaking,” Lemann, 111 Colum. L.Rev. at 133, and has been discussed in a number of circuit and district court decisions, discussed below. It also has been the subject of academic attention, perhaps because of an emerging circuit split. E.g., id.; Jacob Durling, Waltzing Through a Loophole: How Parens Patriae Suits Allow Circumvention of the Class Action Fairness Act, 83 U. Colo. L.Rev. 549 (2012); Carswell, 78 U. Chi. L.Rev. at 353-57; Guyon Knight, The CAFA Mass Action Numerosity Requirement: Three Problems with Counting to 100, 78 Fordham L.Rev. 1875 (2010).
. To be clear, class actions are not authorized in Mississippi courts. USF & G Ins. Co. of Miss. v. Walls,
The MCPA also bars class actions attempted to be brought under its auspices. Miss.Code § 75-24-15(4). "Thus, any purported class action complaint or master complaint on behalf of several plaintiffs asserting violations of Section 75-24-5 is arguably improper.” Walker W. Jones, III & Jason R. Bush, An Overview of the Mississippi Consumer Protection Act, Mississippi Defense Lawyers Assoc. Quarterly, Winter 2006, at 12 (collecting cases).
. The defendant in Vioxx did not argue that the suit was a mass action. Vioxx,
. An opinion from the United States District Court for the District of New Jersey aptly illustrates one way in which CAFA’s legislative history can be manipulated to support either party's position. See Harvey v. Blockbuster, Inc.,
. Madigan and Washington involved the same issues pending before this Court: whether the attorney generals of Illinois, Washington, and California could, via parens patriae suit alleging antitrust violations by LCD panel makers, seek restitution, damages for their citizens, injunctive relief, and civil penalties in their own state courts. Madigan,
The Attorney General of South Carolina brought a similar suit in state court. The defendants removed the action to federal court for reasons akin to those argued here. The action was remanded. South Carolina v. AU Optronics Corp., No. 3:11-cv-731,
.Although Caldwell forecloses it, there is a possibility that a "mass action” should be thought of as a "mass joinder.” Courts apply CAFA’s mass action provisions to mass joinders, and typically decline to apply the mass action provisions to suits lacking 100 named plaintiffs. See Lowery,
Mississippi’s own history sheds some light on the issue. Because Mississippi law prohibits class actions, mass joinders became a popular work-around. See, e.g., Harold’s Auto Parts, Inc. v. Mangialardi,
'class action’ was a Congressional attempt to address notorious joinder abuses at the state level in Mississippi and other states.” Anthony Rollo & Gabriel A. Crowson, Mapping the New Class Action Frontier — A Primer on the Class Action Fairness Act and Amended Federal Rule 23, 59 Consumer Fin. L.Q. Rep. 11, 14 (Spring-Summer 2005); see also S. Amy Spencer, Once More Into the Breach, Dear Friends: The Case for Congressional Revision of the Mass Action Provisions in the Class Action Fairness Act of 2005, 39 Loy. L.A. L.Rev. 1067, 1081 (2006) (discussing the mass action provision’s attempt to address "cases with claims joined under liberal West Virginia or Mississippi statutes”); 14B Charles A. Wright et al., Fed. Practice & Procedure § 3724, at 910-11 (4th ed. 2009) ("The mass actions made removable [by CAFA] typically are actions brought in states whose court systems do not provide for class actions.”); Knight, 78 Fordham L.Rev. at 1878.
. "Indeed, [CAFA] is not complete without its exceptions.” Hollinger,
. At least one court has found the exception applicable outside of the parens patriae context, in a case where the sole plaintiff was a citizen suing on behalf of the general public. Breakman v. AOL LLC,
. The State further alleged that LCD panels are not minor components of those devices, claiming that LCD technology has a "virtually 100% market share for laptops and flat panel computer monitors, and at least 80% market share for flat panel TVs.” Docket No. 1-1, at 14.
. Courts may take judicial notice of census data. Hollinger,
. In this discussion, "individuals” and "individual claims” includes consumers and local governments.
. Other courts have recognized the difficulty in construing CAFA's mass action provisions. The Eleventh Circuit found that "CAFA’s mass action provisions present an opaque, baroque maze of interlocking cross-references that defy easy interpretation.” Lowery,
Fortunately, then, mass actions "are apparently not common. Clermont and Eisenberg's study [of federal cases decided under CAFA between February 18, 2005 and August 18, 2007] unearthed only two cases that involved a mass action and only three others that discussed a mass action.” Stephen B. Burbank, The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, 156 U. Pa. L.Rev. 1439, 1449 n. 29 (2008) (citing Clermont & Eisenberg, CAFA Judicata: A Tale of Waste and Politics, 156 U. Pa. L.Rev. 1553, 1566 n. 34 (2008) (describing federal mass actions as "rare”)).
. In other cases, this sub-section has been moot because the action had already been transferred to a MDL court. E.g., Vioxx,