Are state parens patriae suits “mass actions” under the Class Action Fairness Act?

The Class Action Fairness Act provides jurisdiction in federal district court (originally and by removal) for most minimally diverse class actions and for "mass actions." Under CAFA, a mass action is

any civil action (except a civil action
within the scope of [28 U.S.C.] section 1711(2)) in which monetary relief 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, except
that jurisdiction shall exist only over those plaintiffs whose claims in
a mass action satisfy the jurisdictional amount requirements under
[28 U.S.C. 1332](a).

28 U.S.C. 1332(d)(11)(B)(i). (28 U.S.C. 1332(d)(11)(B)(ii) provides exceptions to the general definition.)

The federal circuits have disagreed about whether (and, if at all, in what circumstances) a state's parens patriae action is a CAFA "mass action." The Supreme Court yesterday granted the state of Mississippi's cert petition to resolve that question. Here's the petition's question presented:

Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint.

Meanwhile, lawyer Enrique Schaerer has written "A Rose by Any Other Name: Why a Parens Patriae Action Can Be a 'Mass Action' Under the Class Action Fairness Act," which takes the position advocated in its Romeo & Juliet infected title. Here's the abstract:

Class Action Fairness Act of 2005 confers federal diversity jurisdiction
over a “mass action,” defined as “any civil action in which monetary
relief claims of 100 or more persons are proposed to be tried jointly.”
Despite this plain language, courts are divided on whether CAFA applies
to lawsuits brought by state attorneys general on behalf of state
citizens, called parens patriae actions, where those actions seek
monetary relief for hundreds of consumers in the state. Several courts
uphold CAFA jurisdiction over such actions on the ground that consumers,
who are not named plaintiffs, are nonetheless real parties in interest
who constitute the one-hundred or more “persons” of a mass action and
whose citizenship establishes the minimal diversity required by CAFA.
Other courts reject jurisdiction on the ground that the State, which has
no citizenship for diversity purposes, is the only real party in
interest. Such divergent analysis is the basis of a growing circuit
split. This article endorses the former approach of courts upholding
CAFA jurisdiction because that approach comports with CAFA’s plain
language, applies the correct real-party-in-interest analysis, and
recognizes these parens patriae actions not for what they are called but
for what they are: mass actions.


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