Supreme Court: AG Suits Not Removable Under CAFA

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On January 14, 2014, the Supreme Court held in Mississippi ex rel. Hood v. AU Optronics Corp. (Hood) that a suit filed by a state as the sole plaintiff does not constitute a "mass action" under the Class Action Fairness Act of 2005 (CAFA). This decision reinforces traditional practice and the long-understood right of state attorneys general to bring consumer protection enforcement actions in their home forums without exposing their suits to removal risks. The Hood decision removes doubt – expressed as a minority view in federal court decisions addressing this issue – that these actions may be removed to federal court under CAFA. While we expect the AU Optronics decision will facilitate the growing role that state attorneys general have begun to play in the nation's consumer protection regime, we do not think the decision on its own will cause attorney general enforcement actions to increase, nor will it change the CAFA landscape for traditional private class actions.

Mississippi ex rel. Hood v. AU Optronics -

In March 2011, the State of Mississippi sued several liquid crystal display (LCD) manufacturers, alleging that defendants violated two Mississippi statutes by forming a cartel to restrict competition and raise prices in the LCD market. Among other forms of relief, Mississippi sought restitution for its own purchases of LCD products and for purchases made by Mississippi citizens. Defendants removed the action to federal court, arguing that the AG's case was a "mass action" as defined by CAFA a "civil action...in which monetary 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."

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