Should they Stay or Should they Go: Can State Attorneys General Avoid Removal of Parens Patriae Suits to Federal Court Under the Class Action Fairness Act?

Authors

Michael Jaeger

Abstract

The Class Action Fairness Act of 2005 (CAFA) allows a defendant to remove a class action filed in state court to federal court if certain requirements are met. There is currently a circuit split as to whether a parens patriae suit—a suit brought by a state attorney general on behalf of the citizens of the state—qualifies as a class action under CAFA. The issue raises serious concerns about federalism and has significant implications for civil procedure, and it could affect the ongoing suits by states against mortgage lenders in the wake of the financial crisis. This Note argues that the circuits that have declined to classify a traditional parens patriae suit as a class action are correct, because they are in line with both the intent of CAFA and longstanding jurisdictional and federalism principles underlying removal. The Note suggests that Congress craft a legislative solution to the split, using as a template an amendment contemplated during CAFA's passage but ultimately not included because it was believed—erroneously, it appears—not to be necessary.

Recommended Citation

Michael Jaeger, Should they Stay or Should they Go: Can State Attorneys General Avoid Removal of Parens Patriae Suits to Federal Court Under the Class Action Fairness Act?, 46 Loy. L.A. L. Rev. 327 (2012).
Available at: https://digitalcommons.lmu.edu/llr/vol46/iss1/8