Academic journal article The Yale Law Journal

Parens Patriae, the Class Action Fairness Act, and the Path Forward: The Implications of Mississippi Ex Rel. Hood V. AU Optronics Corp

Academic journal article The Yale Law Journal

Parens Patriae, the Class Action Fairness Act, and the Path Forward: The Implications of Mississippi Ex Rel. Hood V. AU Optronics Corp

Article excerpt

Few issues in the law of federal courts generate more excitement than the relative strengths of state and federal courts and the power of the states to sue on behalf of their injured citizens. Since Congress passed the Class Action Fairness Act of 2005 (CAFA), (1) a tension has developed between these two issues in federal courts. This Comment addresses that tension, the circuit split it engendered, and the Supreme Court's attempt to resolve the split in its January 2014 opinion, Mississippi ex rel. Hood v. AU Optronics Corp. (2)

The legal issue was as follows: CAFA permits a defendant in a class or mass action to remove the action from state to federal court; (3) the states, meanwhile, frequently bring lawsuits on behalf of their injured citizens in their respective state courts. States possess this power through the doctrine of parens patriae: literally "parent of the country," parens patriae permits a state to bring an action as a single party on behalf of a number of its injured citizens. (4) As CAFA has channeled more class actions and other aggregated claims into the federal courts, the state attorneys general have more frequently brought parens patriae actions in state court--and, in some cases, those actions have looked increasingly like the class actions that CAFA seemed to target. The question in Hood, then, was whether parens patriae actions, given their similarities to class actions, fell within the ambit of CAFA and could thus be removed from state to federal court.

In Hood, the Supreme Court answered this question, which had divided the circuits, with a decisive "no." Without acknowledging the sensitive issues of federalism and state sovereignty that this question could have involved, the Court's opinion was straightforward: as a matter of statutory interpretation, a parens patriae action is not a mass action and is not removable to federal court under CAFA.

This Comment discusses what Hood said, what it didn't, and where we should go from here. Specifically, I argue that Hood signals at least two important developments with respect to CAFA: (1) a new emphasis on CAFA's text, not its general purposes or legislative history, and (2) an apparent tolerance of litigation strategies designed to maneuver around CAFA and resist removal to federal court.

Left unresolved, however, is the question of what should be done to address the real risk of abuse of parens patriae. Hood seems to invite a legislative fix. Prior to the decision, the Seventh Circuit argued that "protection against excesses in the parens patriae context lies in the electoral process," (5) and at least one commentator proposed amending CAFA to "specifically exempt parens patriae suits from removal." (6) In Hood, the Court focused on what CAFA "says," noted that Congress "easily could have" drafted different language if it intended otherwise, and implicitly directed disappointed litigants to their representatives for relief. (7)

I argue, by contrast, that a better solution might be found through the law of parens patriae standing. Standing doctrine provides the appropriate analytical frame for determining whether a state fairly represents the interests of its citizens or whether it is merely acting as a class action representative in disguise. In particular, this Comment recommends that parens patriae standing analysis consider whether class actions are procedurally and practically available to the injured parties. Where such an alternative remedy exists, courts should generally find that the state lacks standing to proceed as parens patriae. At least one state has embraced this approach of considering the availability of class actions in parens patriae standing analysis, and such an approach could close the parens patriae loophole if accepted more widely.

I. CAFA, PARENS PATRIAE, AND THE CIRCUIT SPLIT

CAFA responded to concerns about abuses of class actions at the state court level by channeling certain class actions from state to federal courts. …

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