*3 JOLLY, Before CLEMENT and Meredith Aldridge, Geoffrey McCollum ELROD, Judges. Circuit Morgan, Sp. Atty. Gens., C. Asst. George Neville, Gen., Atty. W. Office Jack- JOLLY, E. GRADY Judge: Circuit son, MS, Anderson, Carolyn Glass Patricia Appellants, manufacturers and distribu- Bloodgood, A. David Michael Cialkowski (“LCD”) crystal liquid display tors of pan- (argued), Hedberg, Kirsten D. Zimmerman els, jointly removed this case to federal Reed, P.L.L.P., Minneapolis, MN, (1) district court on grounds Plaintiff-Appellee. action was a “class action” under the Class Munford, Luther T. James William Shel- (“CAFA”), Action Fairness Act 28 U.S.C. son, Dunbar, Phelps L.L.P., Stephen Lee (2) 1332(d)(1)(B), § the action was a Thomas, Bradley Arant Cummings, Boult CAFA, “mass action” under L.L.P., Gerity, Wyatt, Thomas C. Tarrant 1332(d)(ll)(B). § The State of Mississip- Combs, L.L.P., Boone, Walter Helms pi, Appellee, then moved to remand the Forman, Watkins, Perry, Tardy, Krutz & court, case to state and the district court L.L.P., Philip Thomas, William Law Of- granted the motion. Because we find that Thomas, P.A., fices of Phillip W. Charles the suit qualifies as a mass action under Hawkins, Edwin Ross (argued), Rebecca CAFA, we find removal to proper. Wallace, Michael Brunson Wise Carter Accordingly, we REVERSE the district P.A., Jackson, Child & Caraway, MS, court’s remand order and REMAND for Nedeau, Christopher Nossaman, L.L.P., A. further proceedings. Kim-Szrom, Michelle Kent M. Roger, Morgan, Bockius, L.L.P., Lewis & John M. I. Grenfell, Sorenson, Jacob R. Pillsbury Pittman, L.L.P., Winthrop Shaw Ordinarily, San a district court’s remand or- Francisco, CA, Frahn, IV, Harrison J. is not appealable, see 28 U.S.C. der Thacher, Alto, Simpson CA, Hugh 1447(d); however, § Palo F. there is a Bangasser, Emerson, Ramona M. exception Christo- grants this rule that federal pher Wyant, Gates, L.L.P., M. K&L appellate Se- discretionary jurisdiction courts attle, WA, Miller, Robert Arrington Pat- to review remand orders actions that clear that neither It is thus 75-21-7. the CAFA. See are removed MAA, 1453(c). nor the the statutes un- review de novo the MCPA We U.S.C. remanding an action Mississippi brings present order court’s der which district to the CAFA. pursuant suit, According- removed Rule 23. that was are “similar” to Abshire, Co. v. Ins. did not ly, Admiral hold that the district court we Cir.2009). finding qualify that the suit does not err under the as a “class action” CAFA.
II. CAFA, of a suit removal Under III. *4 quali if proper is the suit court to federal or a “mass action.” a “class action” fies as brings us to the more This conclusion 1453(b); § 28 U.S.C. 28 U.S.C. See quali- question: whether this suit difficult 1332(d)(ll)(A). by analysis begins § Our under the CAFA. fies-as a “mass action” suit Mississippi’s considering whether statute, a mass the terms of the Under qualifies manufacturers the LCD against in which is defined as a civil action action action,” be that can question as a “class (2) (1) 100 monetary relief claims of negative. Under quickly answered (3) proposed are to be tried persons more is a class action provision, the relevant ground plaintiffs’ the jointly on the action filed under “any civil defined questions of law or claims involve common Pro- Federal Rules of Civil Rule 23 of the (4) an amount in contro- fact and include or rule of State statute cedure or similar $75,000. versy exceeding 28 U.S.C. authorizing an action procedure judicial 1332(d)(ll)(B)(i). It undisputed § is representative by 1 or more brought be “monetary involves relief’ present the suit action.” 28 U.S.C. as a class persons ¶¶ 54, 2, 3, claims, and that the Compl. see 1332(d)(1)(B). Mississippi did § Because in con- sought satisfies the amount relief Rule 23 or a rule this suit under bring not Therefore, troversy requirement. the de- Missis- and because judicial procedure is whether the suit involves question cisive class explicitly prohibits law sippi state so, If persons.” of “100 or more the claims actions, Am. Bankers Ins. Co. Fla. see action, and removal is the suit is a mass (Miss.2002) Booth, 1205, 1214 So.2d 830 proper. (“[T]he not Mississippi does rule is Allstate ex rel. Caldwell v. Louisiana actions, class equitable class even permit considered Company, we first Insurance court.”), chancery only ques- actions in application of the mass brought under a whether the suit is tion is by attorney general to a filed a state suit This “similar” to Rule 23. state statute injured citizens. of a subset of on behalf Mississippi brought was suit (5th Cir.2008). 418, Cald- 536 F.3d 429-30 (“MCPA”), Miss. Act Protection Consumer pleadings pierce well instructs us to § and the Mis- seq., Ann. 75-24-1 et Code of a state’s look at the real nature (“MAA”), Antitrust Act Miss.Code sissippi jurisdictional prevent claims so as to seq. explic- et The MCPA Ann. 75-21-1 (“It 424-25, gamesmanship. See id. actions, Miss.Code itly forbids class see determining is well-established 75-24-15(4), MAA and the does Ann. federal jurisdiction, there is whether by the State require brought that suits of the action look to the substance courts satisfy any requirements resemble at the labels that the and not commonality, and numerosity, adequacy, recog- .... This court has may attach class action law- typicality requirements of may pierce 23, Ann. nized that defendants Rule Miss.Code suits under the claim pleadings arguing injury “general- to show that has been seems to be prevent removal.” fraudulently pleaded ized harm” to the as a whole. State See ¶ (citations (“[T]he 2, marks quotation and inset omit- Compl. State of ted)). claim-by-claim ap- The Caldwell has a quasi-sovereign interest the direct with other circuits that proach contrasts and indirect effect of defendants’ illegal complaint look to a state’s “as a whole” conspiracy economy on the state’s and the subjectively determine if the and then condition.”); citizens’ economic Compl. ¶ (“The the real in interest. state alone is economy 194(g) of the state of See, e.g., Corp., Nevada v. Bank Am. damaged.”). has been At other Cir.2012); 672 F.3d LG Dis- times, Complaint injury indicates the Co., play Madigan, Ltd. v. remedy seeks to money damages (7th Cir.2011). Caldwell, binding injury purchaser suffered con- court, effectively precedent on this defined ¶ (“Defen- sumer. Compl. “persons” in mass action context to conspiracy dants’ to raise ... price in interest the real as to the re- panels at artificial levels resulted in *5 Caldwell, spective claims. See 536 F.3d at harm to Plaintiff indirect-pur- and other 424-25, approach. follow its We ”) chaser Mississippi consumers in ... ¶ (“[De- added); (emphasis 44, Compl. parties
The real in interest in Mississip- passed fendants have ... through to their pi’s persons suit are those more than 100 customers 100% of the supra-competitive who, law, “by possess[] substantive price increases that resulted from the de- enforced, right sought to be and not neces- ”) fendants’ ... conspiracy (emphasis add- sarily person ultimately who will bene- ¶ (“Plaintiff ed); 194(f) 51, Compl. and oth- Reed, recovery.” fit from the Richards v. er Mississippi purchasers indirect (5th Cir.1980) (inset 545, 611 F.2d 546 n. 2 paid supra-competitive, artificially inflated omitted); quotations Charles Alan Wright prices for products.”) (emphasis LCD add- Lane, Mary Kay Law Of Federal ¶ (Plaintiff ed); 54, Compl. bringing (6th ed.2002). We find that Courts this action “on resi- parties the real in interest are numerous— behalf of ”) added). dents ... (emphasis think We Contrary far in excess of 100. to the variety allegations demonstrate that assertions, Mississippi State’s is thus not the real only interest include not party Instead, the sole in interest. State, but also individual consumers (as State purchaser products) a of LCD residing Mississippi. purchased individual citizens who products within possess “rights Second, the state statutes: Neither the sought to be enforced.” We have several MAA, MCPA nor the bases bases for this conclusion. suit, of the give State’s the State sole
First,
complaint:
authority
When the
particularized inju-
to recover for
manufacturers,
State sued the
by
LCD
its
ries suffered
consumers. The MCPA
claim was that the manufacturers had
gives
authority
injunctive
en
the State
to seek
gaged in a conspiracy
prices
to fix
for
penalties,
relief and civil
see Miss.Code
panels
75-24-9; 75-24-19(l)(b),
§§
and that their conduct artifi Ann.
may
cially
prices,
inflated
which harmed the
interpreted
giving
indeed be
the State
consumers who were forced
pay higher
authority
to seek restitution for its own
prices.
complaint,
its
injury,
the State includes
see Miss.Code Ann.
75-24-11.
a
However,
series of diverse statements about the
no
gives
MCPA
times,
nature of
injury
At
authority
involved.
the State
to enforce claims for
seen,
injuries
suffered, by others.
In other we have
alleged
involves
injury
state
words,
pub
the statute does
authorize
by
based on harm suffered
individual
private damages.
lic collection of
Similar
argument
claimants. This
fails to account
ly, the MAA
the State to sue for
allows
precise
for the
nature of
injury
in this
-
injunctive
penalties,
relief and civil
see
case and thus also fails to establish the
75-21-1; 75-21-7,
§§
Ann.
Miss.Code
State as the sole
in interest. As a
injuries
not for restitution for
suffered
general background principle, Caldwell re-
State,
§§
other than the
75- minds
there are
us
limitations on
21-9;
sure,
To
75-21-37.
there is one
parens patriae authority.
states’
(from
unpublished Mississippi state case
(“[I]t
at 425-28
is clear that
...
there are
court)
chancery trial
support,
lends
some
limitations [on
ac-
75-24-11,
for
proposition
tions], particularly when a state
seeking
may
a court
damages
“restore”
to an indi
damages
alleged injuries
recover
for
particularized injury,
vidual for a
and also its .economy.”).
Court,
The Supreme
to the state on the basis of
general
some
example, has stated
pur-
that when a state
harm.
ized
See Miss. ex rel. Hood v.
sues the
private
interests of a
party, the
56863,
Corp.,
BASF
No.
Third parens common law class City members. See Jackson v. patriae authority: assuming arguen- Even of Womack, Estate Stewart ex rel. do that the parens patriae State has (Miss.2005). Thus, So.2d (an standing bring the claims here issue injury state cannot recover for the to the decide), standing that we do not that does consumers still.preserve right change Mississippi not the fact that is recover, right consumers to a that the acting, parens patriae capacity, not in its clearly consumers have under the statutes essentially representative. as class pursuant brought. to which the suit is Although See statutory provision the relevant 75-24-15; §§ Miss.Code Ann. does not on 75-21-9. appear the face of the com- short, we plaint, that have been directed to no gives we note law attorney general permits the state or common law that “powers at com- § extinguish right remedy mon law.” Miss.Code Ann. 7-5-1. State to The is, argues parens patriae authority injury. State that the consumer has for his There finally, under common law attorney troubling suggestion by allows the the all too suit, which, general to bring plaintiff the current could obtain 1332(d)(ll)(B)(ii)(III). citizens, public for harm to individual But this restoration money think yet keep exception exempt for itself. We does this case from consideration, jurisdiction. rea- coupled the CAFA and federal above, “all enough requirement to find of the claims” be provided sons having public carte blanche to asserted on behalf of the is not met against the State above, injuries under common As recover for others’ here. discussed individual con- sumers, State, authority. law addition to the are real interest, parties in way so there is no analyzing complaint, After the rele- “all claims” are “asserted on behalf statutes, parens patriae au- vant and the general public.” Mississip- Accord State, we hold that the real thority of the pi Entergy ex rel. Mississippi, Hood in this suit include both interest Inc., 3:08cv780, No. 2012 WL individual consumers of the State and (S.D.Miss. 2012) (A Aug. “finding *15 products. undisputed Because brought that the has State [an] consumers, that there are more than 100 representative capacity to recoup resti- we find that there are more than 100 precludes appli- tution for ... individuals] claims at issue this case. The suit general cation of the public exception.”). therefore meets the CAFA definition of a “mass action.” 28 U.S.C. do, however, We acknowledge the con- 1332(d)(ll)(B)(i). finding cern that the general public excep- inapplicable may tion here render such
IV. (because statutory exception a dead letter alone, however, This conclusion finding negates a suit to be a mass action yield does not a final result. The possibility exception applying), CAFA the disqualifying excep congressional contains number of and we welcome clarification these, Nevertheless, tions to the term “mass action.” Of of this issue.1 argument “general public” exception finding is relevant that our application vitiates the *7 It provides exception yield here. that a suit is not a mass responsi- must to our action if “all of claims in bility apply the action are the unambiguous, express asserted on behalf of general public language of a statute as written. Davis v. (and Johnson, (5th Cir.1998). not on behalf of individual claimants class) Here, purported (i.e., members of a pursuant doing precisely that finding a to a specifically authorizing State statute “monetary suit to be a mass action because such action.” persons” U.S.C. relief claims of 100 or more are here, general public exception 1. The "claim-by-claim” in the must considered on a law, development is, therefore, action, has become some- basis and a mass it has problematical what in the sense it reflects necessarily decided that not all of the claims statutory surplusage brings when the State public are excep- claims of the State and the consumer-related actions such as the one be- hand, if, tion has no relevance. On the other today. Bryan fore us Scalia & A. See Antonin held, as other circuits have these cases' com- Garner, Reading Interpretation Law: The whole,” plaints should be evaluated "as a (1st ed.2012) (discussing Legal Texts basis, "claim-by-claim” aon such a deci- construction, “surplusage canon” of which sion means that the case is not a mass action provides possible, every that “[i]f word and because the State is the sole in interest. every provision given is to be effect .... Consequently, public exception has no ignored. None should be None should be Thus, scenario, application. under either given interpretation an that causes it ... public exception statutory surplus- becomes added)). consequence” (emphasis have no If age. a court such as ours decides that the case issue) claim-by-claim ap- Caldwell’s finding us from that the Caldwell. precludes problematic applied is when proach exception applies. public general parens “mass action” CAFA’s V. such the instant case.1 patriae suits as Moreover, just troubling, applying core, can be practically this case At its reasoning general to CAFA’s of class action as a kind characterized exception may exception render the public is the the State of which class letter in this circuit. We should dead way By proceeding representative. and correct our reconsider Caldwell course has, attorneys and its plaintiff class the law. this area of associated with rigors to avoid the seek (and to federal only actions avoid removal jurisdiction class over this case We court). Waltzing through a generally, if it a “class action” or a “mass action” Parens Patriae Suits Al- Loophole: How reasons under CAFA. For the stated Class Action Circumvention not a majority opinion, low this is “class Act, issue, then, L.Rev. 549 83 U. Colo. Fairness action.” The central is wheth- (2012). action this suit is a mass Because lawsuit is a Mississippi’s er “mass action.” CAFA, removal is under the terms of CAFA defines that term as: proper.2 [A]ny monetary action ... in which civil persons relief claims of 100 or more are judgment of the district court proposed jointly to be tried on the REVERSED, and the case is therefore ground plaintiffs’ that the claims involve proceedings. REMANDED for further fact, questions except law or common and REMANDED. REVERSED jurisdiction shall exist over in a plaintiffs those whose claims mass ELROD, JENNIFER WALKER satisfy jurisdiction amount re- concurring judgment: in the Judge, Circuit 1332(a) quirement under U.S.C. [28 ]. judgment I concur in the because the 1332(d)(ll)(B)(i). Caldwell, 28 U.S.C. fair of our majority opinion application is a application provi- we considered the of this namely Louisiana ex binding precedent, sion to a suit. Co., v. Allstate Insurance rel. Caldwell (5th Cir.2008). majority explains, separate- opinion I write As the Cald- F.3d 418 however, essentially “persons” defined ly, express my concerns with well *8 approach that Nothing 2. we have said denies the State of interest under Caldwell's right proceed Mississippi the to with this case. Mississippi's qua- does not eviscerate asserted federal, state, simply proceed in It will si-sovereign interest in the restitution claim. court. Moreover, parens patriae au- the caveats to opinion thority majority references disagree majority opinion's with the veiled I apply only party when the state is a nominal may not be a assertion that this majority opinion in interest. The never states "Mississippi pursuing in- suit because Mississippi merely a nominal in purchasers.” complaint, terests of LCD In its interest; contrary, recognizes to the it quasi-sovereign identified a valid parties in in this suit include "the real interest illegal preventing interest in antitrust conduct and individual consumers of both the State prohibited MAA and MCPA. The facts under Furthermore, products.” in unlike complaint Mississippi’s in also show that it Caldwell, damages go were to where the based, sought part, at least in on restitution policyholders, Mississippi specific asserted generalized Mississippi economy harm to the complaint argument and at oral both in its price-fixing by Appellants' scheme. caused damages. any retain restitution may parties in that it would The LCD consumers be real respect in to the tre- parties parties real interest with context as the mass claim; therefore, to each claim the suit in- respect damages with ble interest 424, 429. In that See at monetary suit. claims of 100 or more volved case, several insurance sued (because Louisiana met the other persons and also com- conspiring suppress for companies statutory requirements) was a mass action. ' sought, among things, other petition Id. behalf of its citizens. damages on treble Here, shows, majority opinion as the
Id. at
422-23. The defendants
removed
claim-by-claim
leads
applying
approach
court, “argu[ing] that
to federal
the case
to the conclusion that
consum-
parens patriae,
case
although
th[e]
labeled
parties
the real
ers are
interest
fact a ...
‘mass
substance
[was]
”
claim,
to the state’s restitution
so
respect
CAFA. Id. at 423. We
action’
This
this is
“mass action” under CAFA.2
claim-by-
Louisiana’s suit on
evaluated
opposite
result is the exact
of the outcome
Id. at
basis,
than as a whole.
elaim
rather
many
other similar lawsuits around the
Using
approach,
429-30.
this
we conclud-
country.3
many
were the real
That so
other courts are
ed that Louisiana consumers
majority opinion
powers
law.” Id.
7-5-1.
2. reaches this result us-
common
Those
institute,
claim-by-claim approach
right
include "the
conduct and
ing the
from Cald-
well,
necessary
all
maintain
suits
the enforce-
but there are notable differences be-
State, preservation
ment of the laws of the
claims in Caldwell and
tween Louisiana’s
Caldwell,
protection
public rights.”
and the
order
Mississippi's claims here.
Loui-
Co.,
Gandy v. Reserve
Monopolies
Ins.
279 So.2d
the Louisiana
siana sued under
Life
(Miss.1973) (citations omitted).
Act,
Simply
provided
"any person
who is
which
put, this
turns on different
and law
facts
injured
property”
in his business or
under the
did
than
Caldwell.
Monopolies
] [treble]
Act “shall
dam-
recover!
added)
ages.”
(emphasis
805
Indeed,
in
disagreed
result
with it.4
reaching
every
a different
cases
court of
involve,
appeals
litigants
to address the issue since
similarly-situated
Caldwell
rejected
approach.
has
Op-
See AU
nearly
suggests that we
identical claims
Carolina,
Corp.
tronics
v. South
699 F.3d
have
consider whether we
staked
should
(4th
385,
Cir.2012) (adopting
393-94
“the
position. I
out the correct
believe we
approach
rejecting
whole-case
not.
claim-by-claim approach”); Nevada v.
I.
661,
Bank Am.
672 F.3d
Corp.,
670
matter,
Cir.2012)
agree
Judge
As an initial
I
with
(acknowledging
adop-
the court’s
dissenting
in
opinion
approach
Caldwell.
tion of “the
of looking
Southwick’s
at
case
Judge Southwick would have ordered re-
as a whole to
party
determine the real
in
interest,
mand of Louisiana’s suit
to state court
rather than the claim-by-claim ap-
Caldwell”);
complaint
adopted
because its
did not “on its face”
in
proach
Madigan,
Caldwell,
present a
or mass action.
665
at
(referencing
F.3d
773-74
class
the courts
(Southwick, J., dissenting).
questioned
ment this circuit since outside adopt claim-by-claim approach based suggests that take then we should another itself, any language on CAFA nor is look. found”). any language there such to be Judge Perhaps dis-
Consistent Southwick’s that is because CAFA’s text does sent, every indepen- that, almost that has suggest court a case which a dently claim-by- suit, single plaintiff brings considered Caldwell’s a court should approach questioned claim either complaint has dissect the wheth- determine same, consistently cases have done re- e.g., rel. McGraw v. Virginia JPMorgan ex West 984, Co., manding F.Supp.2d back state suits 842 997-98 Chase Illinois, (S.D.W.Va.2012); See, F.Supp.2d at e.g., court. Moody's Connecticut v. 859; 4344079, 3:10-CV-546, Carolina, 63905, 2011 WL at No. WL at Corp., South (D.Conn. 2011); *2. But Entergy ex *2-3 rel. Hood v. Jan. ex Missouri rel. 3:08-CV-780, Miss., Inc., No. 2012 WL Assocs., Inc., Recovery Koster v. Portfolio 25, 2012) (S.D.Miss. Aug. (E.D.Mo.2010); *15 at F.Supp.2d 945-46 Illi (following *7 n. 6 Caldwell because believed F.Supp.2d Corp., nois v. W. SDS so). "duty (C.D.Ill.2009). it was bound” to do Virginia But see West ex F.Supp.2d Corp., rel. McGraw Comcast *10 441, See, (E.D.Penn.2010) (concluding 4. cases cited 2. that e.g., supra n. Courts 449-50 (z.e., cases) other contexts non-LCD have also Caldwell's framework is consistent with See, disagreed approach. goals). with Caldwell's CAFA’s 806 ism, beneficiary comity and “considerations of [should] sole of the plaintiff
er that
court
re
a
relief. This
has
make us reluctant to snatch cases which
for
each basis
leg
against considering
the
that
brought from
courts of
peatedly cautioned
State has
text of
unless the
statute
history
State,
rule
it.”
islative
unless some clear
demands
See, e.g., Carrieri v. Jobs.
ambiguous.5
Tax
v. Constr. Laborers
Franchise
Bd.
(5th
508,
Inc.,
518-19
Cir.
F.3d
Trust,
com
393
1,
22,
463 U.S.
21 n.
103
Vacation
2004);
Commerce
also Chamber
see
2841,
(1983);
77
420
also
of
of S.Ct.
L.Ed.2d
see
— U.S. —,
131
Whiting,
S.Ct.
v.
U.S.
Virginia
rel.
v. CVS
West
ex
McGraw
(2011) (“Con
1968, 1980,
L.Ed.2d 1031
179
Inc.,
(4th
169,
F.3d
Pharmacy,
646
178
is the stat
statement
gress’s ‘authoritative
—
denied,
U.S. —,
Cir.2011),
132
cert.
history.’”)
text,
legislative
utory
not
(2011) (“While
761,
484
S.Ct.
181 L.Ed.2d
v.
Corp. Allapattah
Mobil
(quoting Exxon
Virginia voluntarily
that
is true
West
568,
Servs., Inc.,
125 S.Ct.
545 U.S.
into its
courts
its
entered
own
to enforce
(citations
(2005)
L.Ed.2d 502
162
laws,
voluntarily
to re
it did not
consent
omitted)).
ambiguity
is no
here.
There
court,
and a
moval of its
to a federal
arguendo that
Moreover,
assuming
even
most
to
federal court should be
reluctant
development of CAFA
legislative
were
removal,
its consti
compel
reserving
such
relevant,
acknowledged
court
the Caldwell
supremacy only
tutional
for when removal
history
conflicting ex
that CAFA’s
reveals
interest.”).
overriding
an
federal
serves
II. more than 100 persons are the real any relief; in interest as to claim for and Beyond problems using the the elaim- pursuant text, to plain general CAFA’s by-claim approach for the mass action the public exception cannot unless the analysis, ap- apply I am also that concerned a plication case is mass action. general public excep- to CAFA’s Under frame- this work, negate is altogether imagine tion will the in difficult exception a case that this circuit. a could be mass action that also falls with- See, in e.g., general public the exception. only tells us not what a CAFA “mass Miss., Entergy 2012 WL at *7 n. is, not. See action” but also what it is Caldwell (following *15 concluding 1332(d)(11)(B)(ii)(I) (IV). U.S.C. Specif- — general that the public exception could not general ically, public exception pro- the “[ejven apply because if the State has a
vides: quasi-sovereign in protecting interest Mis- in- term “mass action” shall [T]he sissippi presence consumers ... the of the civil any clude action in which ... all group of discrete [citizens] who have a in the claims the are on action asserted legal substantive right restitu- receive (and the general public behalf of not on tion ... means that ‘all of the claims behalf of individual or mem- claimants action’ are not asserted on behalf of the class) purported bers of a to a pursuant general public”). essence, In prece- our specifically authorizing State statute dent has created a situation in which a such action. satisfy case cannot the criteria of both 1332(d)(ll)(B)(ii)(III). The U.S.C. provision mass action general pub- and the majority opinion implicitly concludes that lic exception.6 approach governs also our anal- ysis correct, exception. If that this majority opinion The states that this question then is no excep- there yield concern “must our responsibility because, apply tion does not as this apply unambiguous, express language states, majority opinion no “there is written,” of a statute as but that misses way that of the on ‘all claims’ are ‘asserted It point. plain is not CAFA’s text ” general behalf public.’ This result the problem, causes ap- rather our is troublesome. proach applying the text. But for the deny applicability
If we gener- claim-by-claim approach, we could ef- give public exception al when individual con- fect provision to both the action mass interest, then, sumers are general public exception.7 CAFA, as In commentary 6. I note some majority opinion consistent suggests also that the Carswell, Dwight general public this concern. See R. exception surplus- Com- ment, Actions, age any CAFA Parens Patriae U. analysis. making that as sertion, (2011) (recognizing Chi. majority opinion L.Rev. conflates the injunctive only "persons” "[l]awsuits seek relief or definition action mass money go treasury will to the state rather with "claimants” and "members of than purported general to state citizens are not mass public actions class” in the ex Thus, ception. defined CAFA. it does not make See Russell v. Law As Enforcement Admin., argue sense to that these are the lawsuits sistance Cir. 1981) excep- that will fall within mass (recognizing “well settled rule of tion.”). statutory construction that where different *12 cases that category of Congress defined America, UNITED STATES specified explicitly and mass actions
are Plaintiff-Appellee, included “shall not” be cases certain apply- approach Our category. in that v. essentially eliminated has ing the statute contrary to well-estab- provision, the latter BERRY, Jonathan Defendant- that counsel of construction lished canons Appellant. parts that render against interpretations See, e.g., White meaningless. aof statute No. 11-51050. Cir.1999) Black, F.3d v. of Appeals, Court United States
(citation omitted) that we must (explaining Fifth Circuit. meaning ordinary and “give words their the lan- meaningless ... not render Nov. statute”); also Antonin of a guage Garner, Reading A. Law: Bryan Scalia (1st Legal Texts Interpretation
ed.2012) can- (discussing “surplusage construction, provides which
on” every every provi- word and possible,
“[i]f .... effect None given
sion is to be given None be ignored.
should be should ...
an that causes interpretation added)). (emphasis no consequence.”
Therefore, should reconsider Cald- we every ’s to ensure that facet approach
well cir- given in our may
of CAFA effect
cuit.
III. judgment
I concur in the because the fair
majority application is a our opinion challenging context. For
precedent this above, however, re-
the reasons we should a differ- precedent adopt
consider that approach the removal of analyzing
ent patriae under
parens suits CAFA. 1702, 1707-08, (2012) (hold language L.Ed.2d 720 in the same connection in is used presumed parts different of a statute it is ing that the term "individual” in the Torture Legislature meaning intended a different per Act meant “natural Victim Protection effect,” holding “claimant” that a son,” reiterating that "re courts should "applicant was an one spect Congress’ decision use different grantee” pro meaning within the of another categories peo different terms describe omitted)); (citation vision Mohamad cf. omitted)). (citation things” ple or —Auth., —, Palestinian U.S. 132 S.Ct.