A Rose by Any Other Name: Why a Parens Patriae Action Can Be a 'Mass Action' Under the Class Action Fairness Act

Abstract

The 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.

Keywords: Class Action Fairness Act, federal courts, federal jurisdiction, diversity of citizenship, removal jurisdiction, mass action, class action, parens patriae, circuit split; real parties in interest