CAFA and parens patriae actions

University of Chicago Law Review

Volumn 78, Issue 1, 2011, Pages 345-376

  Carswell, Dwight R ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 79955962063     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (250)

1. Pub L No 109-2, 119 Stat 4, codified in various sections of Title 28. Congress enacted CAFA in 2005 to address what it saw as widespread abuses involving class action litigation. See Class Action Fairness Act of 2005, S Rep No 109-14, 109th Cong, 1st Sess 4, reprinted in 2005 USCCAN 3, 5. CAFA grants federal district courts original jurisdiction over certain class actions with an aggregate amount in controversy exceeding $5 million and with minimal diversity between the parties. 28 USC § 1332(d)(2).
2. 28 USC § 1332(d)(1)(B).
3. US Const Art III, § 2.
4. See Postal Telegraph Cable Co v Alabama, 155 US 482, 487 (1894)
5. ("A State is not a citizen. And, under the Judiciary Acts of the United States, it is well settled that a suit between a State and a citizen or a corporation of another State is not between citizens of different States."). For a discussion of real party in interest doctrine, see text accompanying notes 144-60.
6. 28 USC § 1332(d)(2)(A).
7. See In re Katrina Canal Litigation Breaches, 524 F3d 700, 706 (5th Cir 2008)
8. ("[I]t has been long settled that a State is not a person for purposes of diversity jurisdiction. This, with the long time companion insistence upon complete diversity, made the presence of additional parties aligned with the State irrelevant to federal diversity jurisdiction.");
9. Hood v F. Hoffman-La Roche, Ltd, 639 F Supp 2d 25, 33-34 &n 10 (DDC 2009)
10. (dismissing the case for lack of subject matter jurisdiction where the parties were otherwise diverse because a state was also a real party in interest).
11. 536 F3d 418 (5th Cir 2008).
12. Id at 429-30.
13. See id at 434 (Southwick dissenting).
14. See McGraw v Comcast Corp, 705 F Supp 2d 441, 443 (ED Pa 2010).
15. See, for example, Koster v Portfolio Recovery Associates, Inc, 686 F Supp 2d 942, 947 (ED Mo 2010).
16. See, for example, Breakman v AOL LLC, 545 F Supp 2d 96, 101 (DDC 2008).
17. See Alfred L Snapp &Son, Inc v Puerto Rico, 458 US 592, 600 (1982).
18. For an introduction to parens patriae actions, see generally Jack Ratliff, Parens Patriae: An Overview, 74 Tulane L Rev 1847 (2000);
19. Richard P. Ieyoub and Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 Tulane L Rev 1859 (2000).
20. Hawaii v Standard Oil Co of California, 405 US 251, 257 (1972)
21. ("For example, Black-stone refers to the sovereign or his representative as 'the general guardian of all infants, idiots, and lunatics,' and as the superintendent of 'all charitable uses in the kingdom.'").
22. Id.
23. See, for example, Missouri v Illinois, 180 US 208, 241 (1901);
24. Georgia v Tennessee Copper Co, 206 US 230, 237-38 (1907);
25. Pennsylvania v West Virginia, 262 US 553, 591-92 (1923).
26. See text accompanying notes 169-81.
27. See State v City of Dover, 891 A2d 524, 528-30 (NH 2006) (holding that the New Hamp shire attorney general had parens patriae standing to bring a product liability action seeking damages from the manufacturers of a gasoline additive found in the water supply of most counties in the state);
28. State v First National Bank of Anchorage, 660 P2d 406, 420-21 (Alaska 1982) (holding that the Alaska attorney general had authority to bring a parens patriae lawsuit seeking restitution for state citizens who were injured by common law fraud despite the lack of express statutory authorization).
29. For examples of parens patriae statutes, see DC Code § 28-4507(b) (West) ("The Corporation Counsel may bring a civil action ... as parens patriae on behalf of any individual residing in the District of Columbia ... for injury sustained by such individual to such individual's property by reason of any violation of this chapter.");
30. NY Gen Bus Law § 349(b) (McKinney) ("Whenever the attorney general shall believe ... that any person ... has engaged in ... any of the acts or practices stated to be unlawful he may bring an action in the name and on behalf of the people ... to obtain restitution.");
31. Mo Ann Stat § 407.100(4) (Vernon): The court, in its discretion, may enter an order of restitution, payable to the state, as may be necessary to restore to any person who has suffered any ascertainable loss, including, but not limited to, any moneys or property, real or personal, which may have been acquired by means of any method, act, use, practice or solicitation, or any combination thereof, de clared to be unlawful by this chapter. It shall be the duty of the attorney general to distribute such funds to those persons injured.One important variation is whether the statute provides for a private right of action or authorizes recovery only by the attorney general.
32. See NY Gen Bus Law § 353(1) ("Whenever the attorney-general shall believe ... any person ... has engaged in ... fraudulent practices, he may bring an action in the name and on behalf of the people of the state of New York against such person."). The New York attorney general recently relied on this provision to bring a lawsuit against Bank of America.
33. See Complaint, Cuomo v Bank of America Corp, No 4501152010, 8-9 (NY S Ct filed Feb 4, 2010) (available on Westlaw at 2010 WL 430118).
34. S Rep No 109-14 at 4 (cited in note 1).
35. Id ("[C]urrent law enables lawyers to 'game' the procedural rules and keep nationwide or multi-state class actions in state courts whose judges have reputations for readily certifying classes and approving settlements without regard to class member interests.").
36. See also Edward A. Purcell, Jr, The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdiction Reform, 156 U Pa L Rev 1823, 1854 (2008) ("Class action attorneys shopped for the most promising forum, and when they wished to avoid the federal courts in suits raising state law claims they were able to do so by adding diversity-destroying parties.").
37. See Justin D. Forlenza, Note, CAFA and Erie: Unconstitutional Consequences?, 75 Fordham L Rev 1065, 1084-86 (2006).
38. S Rep No 109-14 at 4 (cited in note 1).
39. Purcell, 156 U Pa L Rev at 1854 (cited in note 22).
40. 28 USC § 1332(d)(2).
41. 28 USC § 1332(d)(l)(B).
42. 28 USC § 1332(d)(l1)(B)(i).
43. 28 USC § 1332(d)(n)(B)(i).
44. 28 USC § 1332(d)(n)(B)(ii).
45. 28 USC § 1332(d)(n)(B)(ii)(III).
46. Of course, there are compelling arguments against the use of legislative history in interpreting statutes. See, for example, Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Law, in Amy Gut-mann, ed, A Matter of Interpretation: Federal Courts and the Law 3, 29-37 (Princeton 1997).
47. S Rep No 109-14 at 35 (cited in note 1).
48. Id. It should be noted that the Senate committee report was not issued until after CAFA was enacted, so some courts have given it very little weight. Compare Blockbuster, Inc v Galeno, 472 F3d 53, 58 (2d Cir 2006) ("[T]he Senate report was issued ten days after the enactment of the CAFA statute, which suggests that its probative value for divining legislative intent is minimal.")
49. With Lowery v Alabama Power Co, 483 F3d 1184, 1206 n 50 (11th Cir 2007) ("While the report was issued ten days following CAFA's enactment, it was submitted to the Senate on February 3, 2006-while that body was considering the bill.").
50. See also Guyon Knight, Note, The CAFA Mass Action Numerosity Requirement: Three Problems with Counting to 100, 78 Fordham L Rev 1875, 1891-92 (2010) (concluding that "there is no clear answer to the question of the Report's timing").
51. S Rep No 109-14 at 46 (cited in note 1).
52. Id at 47. The California Unfair Competition Law allows an injured party to "pursue representative claims or relief on behalf of others." Cal Bus &Prof Code § 17203 (West). The law was amended by Proposition 64 in 2004 to require that plaintiffs have suffered injury-in-fact and to impose class action-type procedural requirements. See 2004 Cal Legis Serv Prop 64 (West), amending Cal Bus &Prof Code §
53. 17203. See also John H. Beisner, Matthew Shors, and Jessica Davidson Miller, Class Action "Cops": Public Servants or Private Entrepreneurs?, 57 Stan L Rev 1441, 1459 (2005).
54. It is unclear whether the Senate committee report is referring to the law as it existed before or after this amendment. Because the report was issued on February 28, 2005, the most natural interpretation would be that it is referring to the law as amended, because Proposition 64 was approved on November 2, 2004. Either way, the Senate committee report suggests that the mass action exception for claims brought on behalf of the general public was designed to exclude private attorney general actions from CAFA's scope.
55. S Rep No 109-14 at 47 (cited in note 1).
56. 151 Cong Rec S 1158 (daily ed Feb 9, 2005) (Sen Pryor).
57. Id at S 1157-58 ("My amendment simply clarifies that State attorneys general should be exempt from [CAFA] and be allowed to pursue their individual State's interests as determined by themselves and not by the Federal Government.").
58. 151 Cong Rec at S 1164-65 (cited in note 38).
59. Id at S 1163 (Sen Grassley).
60. Id at S 1161-62 (Sen Cornyn) (commenting on the clarity of the bill and the potential for misinterpretation of any law, as well as expressing confidence in the courts to rectify any potential future misinterpretation).
61. Id at S 1164 (Sen Hatch).
62. 151 Cong Rec at S 1164 (cited in note 38) (Sen Hatch).
63. Id.
64. Id at S 1159 (Sen Pryor). This Comment argues that lawsuits brought under a state's normal class action procedures are "class actions" under CAFA. See text accompanying notes 105-07.
65. 151 Cong Rec at S 1163 (cited in note 38) (Sen Grassley).
66. See id at S 1161 (Sen Carper); id at S 1163 (Sen Grassley).
67. As Senator Thomas Carper explained: I did not support this amendment because I think it would simply invite the adoption of other amendments and, frankly, put us in the situation which will end in a conference with the House of Representatives with a bill that is frankly far different than this one and will provide an end product not to my liking and I suspect even less to the liking of those who are opposed to this compromise. I reluctantly oppose this amendment with that in mind, but it is not something I do easily or lightly.
68. Id at S 1161 (Sen Carper).
69. The Fifth Circuit is the only court of appeals to address the topic of this Comment so far. The Tenth Circuit, however, recently granted leave to appeal in a case considering whether parens patriae actions can be removed under CAFA.
70. See BP America, Inc v Edmondson, 613 F3d 1029, 1035 (10th Cir 2010)
71. (noting that the "case raises the important and unsettled legal questions whether CAFA's mass action provision applies to suits by a state attorney general; whether the 'general public' exception covers such suits ... ; and how, if at all, the 'real party in interest' analysis pertains to such suits").
72. Another case is pending before the Fourth Circuit. See Defendants-Appellants' Opening Brief, McGraw v CVS Pharmacy, Inc, No 10-267, 3 (4th Cir filed Dec 28, 2010) (available on Westlaw at 2010 WL 5383915).
73. La Rev Stat Ann §§ 51:121-51:152 (West).
74. Caldwell, 536 F3d at 422-23 (claiming that the defendants took actions amounting to horizontal price fixing when, in the wake of Hurricanes Katrina and Rita, they conspired to "deny, delay, and defend" under the advice of a high-profile consulting firm and to use software that manipulated policy values).
75. Id at 423.
76. Id.
77. Id. Under 28 USC § 1453(c), courts of appeals may review district courts' remand orders in cases removed under CAFA.
78. See Caldwell, 536 F3d at 430.
79. Id at 424.
80. Id. See also text accompanying notes 46-48.
81. The court did admit in a footnote, however, that some senators opposed the amendment because they believed it was unnecessary, as CAFA would not affect parens patriae actions.
82. Caldwell, 536 F3d at 424 n 4. See also text accompanying notes 41-45.
83. Caldwell, 536 F3d at 425-29
84. ("Even assuming arguendo that the Attorney General has standing to bring such a representative action, the narrow issue before this court is who are the real parties in interest: the individual policyholders or the State."). For a discussion of parens patriae standing, see text accompanying notes 166-81.
85. 405 US 251 (1972).
86. Id at 262-63 &n 14.
87. 474 F2d 774 (9th Cir 1973).
88. Caldwell, 536 F3d at 427 n 5 (arguing that Congress's emendation of the Clayton Act created a statutory parens patriae right of action that "is broader than the common law right").
89. The legislation authorizing parens patriae actions was the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub L No 94-435, 90 Stat 1383, codified in relevant part at 15 USC § 15c ("Any attorney general of a State may bring a civil action in the name of such State, as parens patriae on behalf of natural persons residing in such State ... to secure monetary relief.").
90. La Rev Stat Ann § 51:137.
91. Caldwell, 536 F3d at 427-28 n 5.
92. See id at 428-29 ("The parties vigorously debate whether the Attorney General's parens patriae authority is extensive enough to allow the State to sue for treble damages in a representative capacity under state law. We need not address that issue.").
93. Id at 429-30 (noting that the "purpose of antitrust treble damages provisions [is] to encourage private lawsuits by aggrieved individuals" and observing that the Attorney General's petition sought to "recover damages suffered by individual policyholders").
94. The court ordered that, on remand, the district court join the real parties in interest. Id at 430. The court did not consider Rule 17 of the Federal Rules of Civil Procedure, however, which states that although actions must generally be brought in the name of the real party in interest, parties authorized by statute to bring representative actions may "sue in their own names without joining the person for whose benefit the action is brought." FRCP 17(a)(1)(G).
95. Caldwell, 536 F3d at 430. The court noted that its holding might have been different if Louisiana were seeking only injunctive relief, and it suggested that on remand the district court consider whether the claim for injunctive relief might be severed and remanded to state court. Id.
96. 28 USC § 1332(d)(11)(B)(ii)(III).
97. Caldwell, 536 F3d at 433 (Southwick dissenting).
98. Id at 434 &n 1.
99. Id at 435. Louisiana's Rule 23 equivalent is La Code Civ Pro Ann arts 591-97 (West).
100. Caldwell, 536 F3d at 434 (Southwick dissenting).
101. Id.
102. Id.
103. Id at 435.
104. Caldwell, 536 F3d at 435
105. (Southwick dissenting). Judge Southwick noted that if the state court then determined that the lawsuit could proceed as a nonclass representative action, it would remain in state court. Consider id at 433 ("[P]erhaps under Louisiana law [the Attorney General] really may pursue the claims just as he asserts them ... . We have no jurisdiction until there is removed to federal court an action brought in the manner that CAFA requires.").
106. If, however, the state court determined that the attorney general could maintain the suit only by either complying with Louisiana's class action procedures or joining the real parties in interest, the attorney general could then decide whether to drop the claims for treble damages or make the action removable under CAFA by refiling it as a class action or by joining the injured parties as plaintiffs.
107. See id.
108. Id at 435 ("I can perceive no reason to rush questions of state law into the federal courts.").
109. 545 F Supp 2d 96 (DDC 2008).
110. DC Code § 28-3901 et seq.
111. Breakman, 545 F Supp 2d at 99-100. The DCCPPA authorizes "[a] person, whether acting for the interests of itself, its members, or the general public" to bring an action "seeking relief from the use by any person of a trade practice in violation of a law of the District of Columbia" and to recover restitution for the consumers as well as either treble damages or $1,500, whichever is greater. DC Code § 28-3905(k)(1).
112. Breakman, 545 F Supp 2d at 100.
113. Id at 102.
114. Id at 101. As the comment to DC Rule 23 explains, "[DC] Rule 23 is identical to Fed[eral] Rule of Civil Procedure 23 except for certain changes in subsections (c)(1) and (c)(2) which specifically authorize the judge to shift the costs of notice to the defendant, in whole or in part, under limited circumstances." DC R Civ Pro 23, comment.
115. Breakman, 545 F Supp 2d at 101.
116. Id. Although this was technically not a parens patriae action because it was brought by a private party and not by a state, the holding would likely apply to parens patriae actions authorized by statute given that a representative action brought by an attorney general is more likely to be considered "on behalf of the general public" than representative actions brought by private parties.
117. See id ("[E]ven AOL concedes that this DCCPPA case falls squarely within the definitional exclusion of mass action.") (quotation marks omitted).
118. 686 F Supp 2d 942 (ED Mo 2010).
119. Mo Ann Stat § 407.010 et seq.
120. Koster, 686 F Supp 2d at 943.
121. Id at 943-44.
122. Id at 945. The court later noted that even if the defendants had claimed that the action was a mass action, it would have rejected this argument because the Missouri attorney general had not joined ninety-nine additional plaintiffs. Id at 947.
123. Id at 945-46.
124. Koster, 686 F Supp 2d at 945.
125. Citing Syngenta Crop Protection, Inc v Henson, 537 US 28, 32 (2002);
126. Healy v Ratta, 292 US 263, 270 (1934).
127. Koster, 686 F Supp 2d at 945.
128. Id at 946.
129. Id at 947 &n 3.
130. 705 F Supp 2d 441 (ED Pa 2010).
131. Id at 443.
132. See id at 447-52.
133. Id. See also Part II.B.
134. McGraw, 705 F Supp 2d at 452, citing S Rep No 190-14 at 35 (cited in note 1).
135. McGraw, 705 F Supp 2d at 452.
136. Id at 454.
137. 28 USC § 1332(d)(1)(B).
138. 524 F3d 700 (5th Cir 2008).
139. Id at 703-04.
140. Id at 705.
141. 28 USC § 1332(d)(1)(B) (emphasis added).
142. According to the Oxford English Dictionary, "similar" means "[o]f the same substance or structure throughout" or "[h]aving a marked resemblance or likeness." Oxford English Dictionary 490 (Clarendon 2d ed 1989).
143. Webster's Dictionary defines "similar" as meaning "alike in substance or essentials" or "having characteristics in common: strictly comparable." Webster's Third New International Dictionary 2120 (Merriam-Webster 2002).
144. See also Payless Shoesource, Inc v Travelers Companies, Inc, 585 F3d 1366, 1373 (10th Cir 2009) (using these definitions to interpret the use of the word "similar" in a contract).
145. Even if the statute were deemed ambiguous, the federalism canon of construction introduced in Part IV.B would nonetheless suggest that parens patriae actions are not class actions.
146. In particular, most parens patriae statutes do not include a predominance requirement, a requirement that prevents many class actions from being certified.
147. See FRCP 23(b)(3) (stating that "questions of law or fact common to class members" must "predominate over any questions affecting only individual members").
148. See also Amchem Products, Inc v Windsor, 521 US 591, 597, 609 (1997) (affirming the Third Circuit's denial of class certification for failure to show "that questions common to the class 'predominate over' other questions").
149. See Jim Ryan and Don R. Sampen, Suing on behalf of the State: A Parens Patriae Primer, 86 Ill Bar J 684, 688-89 (1998).
150. See McGraw, 705 F Supp 2d at 453 ("In summary, the three baseline requirements necessary to protect the interests of absent class members are: 1) notice, 2) an opt-out opportunity, and 3) adequate representation.").
151. Consider id.
152. due process should not necessarily require that the citizen beneficiaries be given an opportunity to sue separately.").
153. 705 F Supp 2d at 448 &n 6, citing S Rep No 109-14 at 35 (cited in note 1).
154. See text accompanying notes 41-45.
155. 705 F Supp 2d at 448 n 6.
156. See text accompanying notes 46-47.
157. 151 Cong Rec at S 1163 (cited in note 38) (Sen Grassley).
158. 686 F Supp 2d at 947 n 3.
159. 28 USC § 1332(d)(11)(B)(i). This would not apply to statutes that authorize the attorney general to recover restitution or damages but that do not provide for an individual right of action, because the phrase "claims of 100 or more persons" suggests that the persons must have the ability to bring the claims on their own.
160. Consider Knight, 78 Fordham L Rev at 1924 (cited in note 34).
161. This is especially true when state citizens have no ability to opt out of the action and bring the claims separately. The Clayton Act's parens patriae provision states that an affected citizen "may elect to exclude from adjudication the portion of the State claim for monetary relief attributable to him" and provides that the parens patriae action will have a res judicata effect on citizens who do not opt out. 15 USC § 15c(b)(2).
162. y state parens patriae statutes lack this feature, however. See, for example, Mo Ann Stat § 407.100(4). See also Ryan and Sampen, 86 Ill Bar J at 688-89 (cited in note 112).
163. Although CAFA applies only to "civil actions," the analogy to restitution in criminal cases is apt. Parens patriae actions are often a form of civil enforcement, as demonstrated by the fact that parens patriae statutes frequently authorize state attorneys general to collect civil fines.
164. 28 USC § 1332(d)(11)(B)(i).
165. See Knight, 78 Fordham L Rev at 1924 (cited in note 34).
166. S Rep No 109-14 at 46 (cited in note 1).
167. See notes 32 and 34.
168. See, for example, 151 Cong Rec S 1079 (daily ed Feb 8, 2005) (Sen Dodd).
169. See text accompanying notes 41-45.
170. See, for example, Syngenta Crop Protection, Inc v Henson, 537 US 28, 32 (2002) ("[S]tatutory procedures for removal are to be strictly construed.");
171. Healy v Ratta, 292 US 263, 270 (1934) ("Due regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined.").
172. See also Dixon v Coburg Dairy, Inc, 369 F3d 811, 816 (4th Cir 2004) (en banc) ("We are obliged to construe removal jurisdiction strictly because of the significant federalism concerns implicated. Therefore, if federal jurisdiction is doubtful, a remand to state court is necessary.") (quotation marks omitted). This is particularly true when the state is the plaintiff.
173. See Kansas v Bradley, 26 F 289, 292 (CC D Kan 1885): [I]n questions of doubt as to jurisdiction, the federal courts should remand. They should not be covetous, but miserly, of jurisdiction. ... [T]his court should not be loaded with removed cases, unless its jurisdiction is clear and the mandates of the law imperatively require it. Especially is that true of cases in which the state is attempting, in its own courts, to enforce its statutes, designed for the peace and good order of its citizens.
174. See Gregory v Ashcroft, 501 US 452, 460-61 (1991) ("Congress should make its intention 'clear and manifest' if it intends to pre-empt the historic powers of the States.");
175. Pennhurst State School and Hospital v Halderman, 451 US 1, 16-17 (1981) (adopting a plain statement rule for congressional intrusions on state authority pursuant to § 5 of the Fourteenth Amendment).
176. See Healy, 292 US at 270 (discussing "[t]he power reserved to the states, under the Constitution, to provide for the determination of controversies in their courts").
177. In other situations, there may be serious questions about whether the attorney general has common law authority to bring a parens patriae action.
178. See notes 76-77 and accompanying text.
179. See Bristol-Myers Squibb Co v Safety National Casualty Corp, 43 F Supp 2d 734, 741 (ED Tex 1999) ("Concerns of comity are particularly significant in diversity cases, since state courts should be allowed to decide state cases unless the action falls squarely within the bounds Congress has created.").
180. Consider Beisner, Shors, and Miller, 57 Stan L Rev at 1456-58 (cited in note 36) (arguing that officeholders should be subject to different class action rules because officeholders are politically accountable, unlike private attorneys);
181. Edward Brunet, Improving Class Action Efficiency by Expanded Use of Parens Patriae Suits and Intervention, 74 Tulane L Rev 1919, 1931-38 (2000)
182. (arguing that government parens patriae suits are not subject to the same costs, such as monitoring and asymmetric stakes, as private attorney general suits).
183. See Beisner, Shors, and Miller, 57 Stan L Rev at 1456
184. (cited in note 36) ("[S]tate attorneys general are politically accountable. Most directly face the ballot box. They may be voted out of office if their constituents disagree with their enforcement decisions.");
185. Cong Rec at S 1159 (cited in note 38) (Sen Pryor) (arguing that attorneys general have a political incentive and a sensitivity to criticism, both from the bench and from the public, that make them more accountable than private lawyers to the interests they represent in suits).
186. Unlike most private plaintiffs' attorneys, state attorneys general do not personally make money from parens patriae actions, so there is less threat of them selling out state citizens. Even when a state attorney general hires private counsel to represent the state, the attorney general's office is in a better position to monitor the counsel than class members would be.
187. See Brunet, 74 Tulane L Rev at 1931-34 (cited in note 138).
188. See notes 24-25 and accompanying text. See text accompanying notes 132-37.
189. 28 USC § 1332(d)(11)(B)(ii)(III). See Part III.A.
190. Perhaps this is the standard implicitly adopted by the Fifth Circuit in Caldwell, for the court did not consider the mass action exception after it determined that the policyholders were the real parties in interest.
191. See Caldwell, 536 F3d at 430; text accompanying note 68.
192. See Katrina Canal Litigation, 524 F3d at 706; Hood v F. Hoffman-La Roche, Ltd, 639 F Supp 2d 25, 33-34 &n 10 (DDC 2009).
193. Hood v F. Hoffman-La Roche, Ltd, 639 F Supp 2d 25, 33-34 &n 10 (DDC 2009).
194. See, for example, Louisiana v Union Oil Co of California, 458 F3d 364, 366 (5th Cir 2006).
195. 183 US 53 (1901).
196. Id at 59.
197. Id at 57.
198. Id.
199. Hickman, 183 US at 59.
200. See id at 59-60.
201. See People v LiveDeal, Inc, 2009 WL 383434, *2-3 (CD Ill) (declining to read Hickman "so narrowly" and instead proposing that the relevant question is whether Illinois has a "substantial stake in the outcome of the suit")
202. citing Wisconsin v Abbott Laboratories, Inc, 341 F Supp 2d 1057, 1061, 1063 (WD Wis 2004); Hood v Microsoft Corp, 428 F Supp 2d 537, 545-56 (SD Miss 2006).
203. 639 F Supp 2d 25 (DDC 2009).
204. Id at 27 &n 2.
205. Id.
206. See id at 31-32.
207. See F. Hoffman-LaRoche, 639 F Supp 2d at 33-34.
208. 28 USC § 1332(d)(2)(A).
209. 28 USC § 1332(d)(11)(B)(ii)(III) (emphasis added).
210. See 28 USC § 1332(d)(11).
211. Ryan and Sampen, 86 Ill Bar J at 688 (cited in note 112).
212. For example, suppose a person is defrauding elderly consumers. An injunction that prevents that person from committing fraud in the future is clearly on behalf of the general public. Yet, the risk of damages liability will also deter the conduct and thus will be equally on behalf of the general public.
213. There are differences between damages and injunctions, of course. If only injunctive relief is threatened, then the person can practice fraud with impunity until a lawsuit is filed. But this does not mean injunctive relief is any more "on behalf of" the general public. If anything, it means the opposite-damages liability may be more effective at protecting consumers.
214. S Rep No 109-14 at 46-47 (cited in note 1). Note, however, that the authority of this committee report is debated. See note 34.
215. Cal Bus &Prof Code § 17203.
216. 458 US 592 (1982).
217. Id at 597-98 (claiming in part that the defendants caused irreparable injury to Puerto Rico by harming its efforts to reduce unemployment).
218. Id at 599.
219. See id at 600-01.
220. Snapp, 458 US at 607.
221. Id at 607.
222. Id at 607 &n 14.
223. Id at 609.
224. See, for example, Support Ministries for Persons with AIDS, Inc v Village of Waterford, 799 F Supp
225. See, for example, Pennsylvania v Porter, 659 F2d 306, 318 (3d Cir 1981).
226. See, for example, Vacco v Mid Hudson Medical Group, 877 F Supp 143, 149 (SDNY 1995).
227. See, for example, Abrams v 11 Cornwell Co, 695 F2d 34, 39 (2d Cir 1982)
228. vacd on other grounds, 718 F2d 22 (2d Cir 1983) (en banc);
229. New York v Peter &John's Pump House, Inc, 914 F Supp 809, 813 (NDNY 1996).
230. Several courts have rejected parens patriae actions under RICO. See Abrams v Seneci, 817 F2d 1015, 1017 (2d Cir 1987);
231. Illinois v Life of Mid-America Insurance Co, 805 F2d 763, 766 &n 5 (7th Cir 1986).
232. 458 US at 602.
233. 517 US 544 (1996).
234. Id at 551.
235. Id at 555-56.
236. See Lujan v Defenders of Wildlife, 504 US 555, 560-61 (1992).
237. It may be the case that the state is not even required to prove that its citizens would have Article III standing. Consider Massachusetts v EPA, 549 US 497, 516-21 (2007) (dismissing the argument that widespread harm to Massachusetts's citizens was itself an obstacle to the state having standing to sue the EPA and noting Massachusetts was "entitled to special solicitude in [the Court's] standing analysis" due to its quasi-sovereign interests);
238. id at 538 (Roberts dissenting) (arguing that the majority opinion "takes what has always been regarded as a necessary condition for parens patriae standing-a quasi-sovereign interest-and converts it into a sufficient showing for purposes of Article III").
239. Recall that a mass action by definition must be brought pursuant to a "State statute specifically authorizing such action" in order to fall within the mass action exception for claims brought on behalf of the general public. 28 USC § 1332(d)(11)(B)(ii)(III).
240. 458 US at 607.
241. Federal courts have been reluctant to examine the real motives of state actors in other areas. See, for example, Williamson v Lee Optical of Oklahoma, Inc, 348 US 483, 487-88 (1955) (rejecting an Equal Protection Clause challenge to state interest group legislation designed to benefit optometrists). While removal is not as extreme as declaring a law unconstitutional, there is no reason to think that courts will want to get into the business of deciding which state actions are truly public-regarding and which are designed solely to benefit particular parties.
242. In fact, this Comment argues that parens patriae actions should not be considered mass actions to begin with unless the state attorney general joins at least ninety-nine state citizens as plaintiffs.
243. Snapp, 458 US at 607.
244. Ratliff, 74 Tulane L Rev at 1857 (cited in note 13).
245. 934 F2d 1304 (4th Cir 1991).
246. Id at 1310-13.
247. Id at 1310-11, citing State v Andrews, 533 A2d 282, 287-88 n 7 (Md App 1987).
248. also In re Sclater, 40 BR 594, 597 (Bankr D Conn 1984) ("The Attorney General is thus seeking to protect Michigan residents from fraudulent and deceptive practices under a mandate from the state legislature addressing this specific type of injury.
249. The use of the parens patriae doctrine ... is in direct conformity with [ ] Snapp.").
250. See Part I.C.2. See also note 32.