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  • Writer's pictureKirk Hartley

Expert View on CAFA and the Removability of Parens Patriae Suits Brought by State Attorneys General

Are parens patriae lawsuits by state attorneys general removable to federal court under the Class Action Fairness Act – CAFA? The National Law Journal today includes an interesting summary article by a solid expert. She is:

"Georgene Vairo is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. She serves as a member of the board of editors of Moore’s Federal Practice, for which she writes chapters on removal, venue and multidistrict litigation. She also serves on the board of ­overseers of the Rand Institute for Civil Justice."

The entire article deserves reading. Here’s her conclusion after reviewing the law:

"In my view, the Caldwell dissent and the 4th Circuit approaches are more persuasive. If the complaint is brought in the name of the state alone, and state law provides for cases to be brought in a parens patriae capacity, then, as master of the complaint, the AG ought to be entitled to do so without risking removal to federal court. There is no question that the majority’s approach in Caldwell reflects congressional intent to interpret CAFA’s expanded jurisdictional provisions broadly. However, if the state, which was the only plaintiff named in the complaint, was not the real party in interest, the case should have been dismissed, because there were no proper plaintiffs before the court and there was no attempt to join any new plaintiffs. Or the case ought to have been remanded to state court because that would have done less violence to principles of federalism than the majority’s recharacterization of the case as a mass action subject to CAFA jurisdiction. The attorney general should not have been stuck in federal court.

The controversy here is that some state attorneys general employ private plaintiffs’ lawyers to prosecute these cases. So, to a defendant, if the case walks like a duck it is a duck — and these are the very types of cases that were the target of CAFA. Nonetheless, the 4th Circuit was right to look to the language of CAFA and not its purpose. If a case is not brought as a class action, it cannot be removed under CAFA. If the case is not brought by more than 100 named plaintiffs, the case cannot be removed as a mass action under CAFA. This approach is preferable because it correctly honors the letter of CAFA, the basic principle that the plaintiff is the master of the complaint, and, perhaps most importantly, principles of federalism."

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