It's been a while since Mississippi found itself in the middle of a full-on fight at the U.S. Supreme Court, but that drought may be destined to come to an end.
Last week, a three-judge panel at the Fifth Circuit held that an antitrust action by the State of Mississippi against several LCD manufacturers was a "mass action" lawsuit under the Class Action Fairness Act and, therefore, could be removed to federal court. That decision reversed a district judge's ruling to the contrary and put the Fifth Circuit squarely in disagreement with at least three circuits.
First, a little background. In 2011, Mississippi Attorney General Jim Hood sued several manufacturers of LCD monitors in state court for engaging in what he alleged to be a price-fixing conspiracy. In Hood's view, that conspiracy resulted in Mississippians being overcharged, and he sought recovery of damages on the citizenry's behalf. When a government figure like Hood brings such a suit, his action is called a parens patriae suit, which is a concept the district judge reviewed in his decision earlier this year:
The concept of parens patriae stems from the English constitutional system, where the King retained certain duties and powers, referred to as the "royal prerogative," which he exercised in his capacity as "father of the country." While the term originally meant the King's power to protect those without the legal capacity to act for themselves, in the United States parens patriae actions were greatly expanded over the 1900s. Today they are an increasingly popular vehicle for state attorneys general to vindicate the rights of their constituents.
Mississippi ex rel. Hood v. AU Optronics Corp., No. 3:11-cv-345, 2012 U.S. Dist. LEXIS 62089, *9-10 (S.D. Miss. May 3, 2012) (citations and quotations omitted).
Although Hood couched his claim as one rooted in state law, the defendants alleged that, in truth, he had pled what is described by the Class Action Fairness Act as a "mass action," which is removable.
And that's where the rubber meets the road: does federal law permit a state-law parens patriae action to be removed to federal court as a "mass action" lawsuit?
In the Fifth Circuit's view, the answer is "yes." Writing for the panel, Judge Jolly said that "this case practically can be characterized as a kind of class action in which the State of Mississippi is the class representative." But as Judge Elrod noted in a reluctant concorrence, that holding is at odds with conclusions reached by the Fourth, Seventh, and Ninth Circuits.
In other words, regardless of what you think the right answer is, one fact is undeniable: we've got a clear, openly acknowledged circuit split on our hands, and a well written cert petition could make this case attractive to the Supreme Court.
Of course, that speculation could be putting the cart before the horse. Hood probably will ask the Fifth Circuit to rehear the case en banc, and if the Court agrees to do so, then several more months will go by before anybody puts pen to paper on a cert petition. Still, for appellate law aficionados, it's something to keep an eye on.