On May 28, 2013, the Supreme Court granted certiorari in Mississippi v. AU Optronics,1 agreeing to consider whether a state attorney general’s parens patriae action is removable to federal court as a "mass action" under the Class Action Fairness Act (CAFA).2 The court’s decision will resolve a circuit split on the issue, providing litigants with clarity on how to proceed with complex disputes that include claims brought by a state on behalf of its citizens. The U.S. Court of Appeals for the Fifth Circuit first considered the issue in 2008, finding that a state attorney general’s action is removable under CAFA where the action seeks monetary recovery for individual citizens. Three other circuits have decided otherwise—the Fourth, Seventh, and Ninth circuits have concluded that a parens patriae action does not fall within the reach of CAFA and is not removable under the statute. The implications for practitioners are significant, as most defendants (antitrust included) prefer to have parens patriae actions litigated in federal court where the analysis and outcomes arguably are less provincial.
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