Hawaii Ex Rel. Louie v. HSBC Bank Nevada, N.A. ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF HAWAII, ex rel. David M. No. 13-15611
Louie, Attorney General,
Plaintiff-Appellant, D.C. No.
1:12-cv-00263-
v. LEK-KSC
HSBC BANK NEVADA, N.A.,
Defendant in 1:12-cv-00266-LEK- OPINION
KSC; HSBC CARD SERVICES, INC.,
Defendant in 1:12-cv-00266-LEK-
KSC; CAPITAL ONE BANK (USA),
N.A., Defendant in 1:12-cv-00268-
LEK-KSC; CAPITAL ONE SERVICES,
LLC, Defendant in 1:12-cv-00268-
LEK-KSC; CITIGROUP, INC.,
Defendant in 1:12-cv-00271-LEK-
KSC; CITIBANK, N.A., Defendant in
1:12-cv-00271-LEK-KSC;
DEPARTMENT STORES NATIONAL
BANK, Defendant in 1:12-cv-00271-
LEK-KSC; DOE, 1-20,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
2 STATE OF HAWAII V. HSBC BANK NEVADA
Argued and Submitted
June 10, 2014—Honolulu, Hawaii
Filed August 1, 2014
Before: William A. Fletcher, Sandra S. Ikuta,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz
SUMMARY*
National Bank Act / Preemption
Reversing the district court’s denial of a motion for a
remand to state court, the panel held that neither the federal
question statute nor the Class Action Fairness Act provided
the district court with subject matter jurisdiction over the
Hawaii Attorney General’s complaints against six credit card
providers, alleging that each violated state law by deceptively
marketing and improperly enrolling cardholders in add-on
credit card products.
Joining the Fifth Circuit, the panel held that the Attorney
General’s claims were not preempted by National Bank Act
provisions completely preempting state law claims
challenging interest rates charged by national banks. The
panel held that the district court did not err by relying on
declarations submitted by the card providers describing their
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
STATE OF HAWAII V. HSBC BANK NEVADA 3
payment protection plans. The panel declined to decide
whether payment protection plan fees are interest on a loan
under NBA § 85, rather than charges for an independent
service, because the complaints did not allege that the card
providers charged excessive interest rates. The panel held
that NBA §§ 85 and 86 do not preempt only claims that
explicitly invoke a state usury law. Nonetheless, the
complaints’ state law claims were not preempted because
they did not challenge the “rate of interest” that the card
providers charged. Instead, the state law claims were
independent of §§ 85 and 86; the complaints’ unfair and
deceptive practice claims targeted alleged marketing
misrepresentations, and their unjust enrichment claims arose
from the purported failure to obtain consent before enrolling
consumers in debt protection products.
Agreeing with the Second, Third, and Fourth Circuits, the
panel held that CAFA did not provide an alternate basis for
jurisdiction because the Attorney General brought civil
enforcement actions or common law parens patriae suits,
rather than class actions, and the complaints specifically
disclaimed class status.
COUNSEL
Laura J. Baughman, J. Burton LeBlanc, IV, and Sherri Ann
Saucer (argued), Baron & Budd, P.C., Dallas, Texas; Richard
Golomb and Kenneth J. Grunfeld, Golomb & Honik, P.C.,
Philadelphia, Pennsylvania; L. Richard Fried, Jr. and Patrick
F. McTernan, Cronin, Fried, Sekiya, Kekina & Fairbanks,
Honolulu, Hawaii, for Plaintiff-Appellant.
4 STATE OF HAWAII V. HSBC BANK NEVADA
Michael C. Bird, Summer H.M. Fergerstrom, and Tracey
Lynn Kubota, Watanabe Ing LLP, Honolulu, Hawaii; Julia B.
Strickland, David W. Moon, and Jason Sung-Hyuk Yoo,
Stroock & Stroock & Lavan LLP, Los Angeles, California,
for Defendants-Appellees HSBC Bank Nevada, N.A. and
HSBC Card Services, Inc.
James F. McCabe (argued) and James R. McGuire, Morrison
& Foerster LLP, San Francisco, California; Margery S.
Bronster and Andrew L. Pepper, Bronster Hoshibata,
Honolulu, Hawaii, for Defendants-Appellees Capital One
Bank (USA), N.A. and Capital One Services, LLC.
Michael Purpura and Michael J. Scanlon, Carlsmith Ball
LLP, Honolulu, Hawaii; Noah A. Levine and Robert W.
Trenchard, Wilmer Cutler Pickering Hale and Dorr LLP, New
York, New York, for Defendants-Appellees Citigroup Inc.,
Citibank, N.A., and Department Stores National Bank.
OPINION
HURWITZ, Circuit Judge:
The Hawaii Attorney General filed complaints in state
court against six credit card providers, alleging that each
violated state law by deceptively marketing and improperly
enrolling cardholders in add-on credit card products. The
card providers removed the cases to federal court, and the
Attorney General moved to remand. The district court
concluded that the Class Action Fairness Act of 2005
(CAFA), 28 U.S.C. § 1332(d), did not afford a basis for
federal jurisdiction. The court, however, found at least one
of the Attorney General’s claims against each provider
STATE OF HAWAII V. HSBC BANK NEVADA 5
completely preempted by section 30 of the National Bank Act
of 1864, 12 U.S.C. §§ 85–86. The court thus held that it had
jurisdiction over the completely preempted claims under the
federal question statute, 28 U.S.C. § 1331, and elected to
exercise jurisdiction over the remaining claims under the
supplemental jurisdiction statute, 28 U.S.C. § 1367.
We hold that neither the federal question statute nor
CAFA provides the district court with subject matter
jurisdiction. We therefore reverse with instructions to
remand the actions to state court.
I. Background
A.
In April 2012, the Hawaii Attorney General filed
complaints in state court against six financial institutions—JP
Morgan Chase & Co. and Chase Bank USA, N.A.
(collectively, the “Chase defendants”); HSBC Bank Nevada,
N.A. and HSBC Card Services, Inc. (collectively, the “HSBC
defendants”); Capital One Bank (USA), N.A. and Capital One
Services, LLC (collectively, the “Capital One defendants”);
Discover Financial Services, Inc., Discover Bank, DFS
Services, L.L.C., and American Bankers Management
Company, Inc. (collectively, the “Discover defendants”);
Bank of America Corporation and FIA Card Services, N.A.
(collectively, the “Bank of America defendants”); and
Citigroup Inc., Citibank, N.A., and Department Stores
National Bank (collectively, the “Citigroup defendants”).
Discover Bank is a federally insured, state-chartered bank;
the other defendant banks are nationally chartered.
6 STATE OF HAWAII V. HSBC BANK NEVADA
The complaints, identical as relevant to this appeal,
alleged that the defendants deceptively marketed and enrolled
Hawaii cardholders in various debt protection products.
These products include payment protection plans, extended
warranties for purchased items, identity theft protection plans,
stolen card protection, credit score tracking, and payment
warranties.
The complaints primarily targeted the payment protection
plans. These plans suspend or cancel all or part of a
cardholder’s obligation to repay an outstanding credit card
balance, limit interest charges, or waive late fees upon a
qualifying event, such as disability, death, or unemployment.
A cardholder purchases a payment protection plan by paying
the provider a percentage of the outstanding monthly card
balance.
The complaints alleged that the providers: (1) enrolled
cardholders in protection plans without their consent; (2)
enrolled cardholders who do not qualify for protection plan
benefits; (3) confused plan purchasers with deceptive
marketing, contract language, and billing; and (4) targeted
“vulnerable” populations, including subprime borrowers and
the elderly.
The complaints asserted three state law causes of action.
Count I alleged that the credit card providers violated sections
“480-1 et seq.” of the Hawaii Revised Statutes. Although not
limited to violations of the Uniform Deceptive Trade
Practices Act, Haw. Rev. Stat. ch. 481A, the complaints
specifically averred that defendants engaged in “deceptive
trade practices” forbidden by that statute. See Haw. Rev.
Stat. § 480-2 (declaring “unfair or deceptive acts or practices
in the conduct of any trade or commerce . . . unlawful”); id.
STATE OF HAWAII V. HSBC BANK NEVADA 7
§ 481A-3(a)(2), (5), (9), (12) (listing deceptive trade
practices). Count II contended that the card providers
violated section 480-13.5 of the Hawaii Revised Statutes,
which imposes a penalty of up to $10,000 for each deceptive
act that is “directed toward, targets, or injures” an elderly
person. Count III alleged unjust enrichment because Hawaii
consumers “unknowingly pa[id] unauthorized or otherwise
improper charges to Defendants.”
The complaints requested declaratory and injunctive
relief, civil penalties, disgorgement, restitution, attorneys’
fees, interest, and “other relief as provided by law.” The
actions were “brought by the State of Hawaii in its sovereign
capacity . . . on behalf of the State and its citizens,” as
authorized by sections 480-2(d) and 661-10 of the Hawaii
Revised Statutes, and also under the State’s “parens patriae
authority.” In each complaint, the Attorney General
explicitly disavowed that he filed a class action and
disclaimed “any such claims that would support removal on
the basis of diversity, Class Action Fairness Act of 2005
(28 U.S.C. §§ 1332(d), 1453, 1711–1715), federal question
jurisdiction, or any other basis.”
B.
The defendants filed notices of removal in the district
court, invoking §§ 1331, 1332(d)(2), and 1367 as the bases
for federal jurisdiction. The Attorney General moved to
remand each case.
The district court denied the motions to remand. The
court first held that CAFA did not afford it jurisdiction. The
district court acknowledged that in order to recover damages
on behalf of consumers, subsection 480-14(b) of the Hawaii
8 STATE OF HAWAII V. HSBC BANK NEVADA
Revised Statues likely requires the Attorney General to bring
a class action.1 Hawaii ex rel. Louie v. JP Morgan Chase &
Co., 907 F. Supp. 2d 1188, 1204 (D. Haw. 2012). Relying on
Washington v. Chimei Innolux Corp., 659 F.3d 842 (9th Cir.
2011), however, the district judge held that CAFA requires
that a plaintiff “actually invoke” a class action rule or
“otherwise label the case a ‘class action.’” Louie, 907
F. Supp. 2d at 1205. Because the complaints expressly
disclaimed class status, invoking instead only common law
parens patriae and section 661-10 civil enforcement
authority, the district court concluded that it lacked CAFA
jurisdiction. Id. at 1206–07.
But, the district court held that it had jurisdiction over at
least one of the claims in each complaint under the complete
preemption doctrine. The district court reasoned that by
alleging the card providers had charged “significant fees” for
“minimal benefits” and had “increased profits by substantial
sums,” the Attorney General implicitly challenged the “rate
of interest” on outstanding credit card balances. Id. at
1210–12. Because the National Bank Act completely
preempts state laws regulating the interest rates charged by
1
Subsection 480-14(b) states:
The attorney general of the State shall be authorized to
bring a class action for indirect purchasers asserting
claims under this chapter. The attorney general or the
director of the office of consumer protection may bring
a class action on behalf of consumers based on unfair or
deceptive acts or practices declared unlawful by section
480-2. Actions brought under this subsection shall be
brought as parens patriae on behalf of natural persons
residing in the State to secure threefold damages for
injuries sustained by the natural persons to their
property by reason of any violation of this chapter.
STATE OF HAWAII V. HSBC BANK NEVADA 9
nationally chartered banks, Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 10–11 (2003), the district court held
that it had jurisdiction over “at least some” of the claims
against the national defendants, and elected to exercise
supplemental jurisdiction over all other claims. Louie, 907
F. Supp. 2d at 1212–13.
The Attorney General sought leave to file an interlocutory
appeal pursuant to 28 U.S.C § 1292(b), raising two questions:
(1) “Do the fees charged for the payment protection plans and
other ancillary services constitute ‘interest’ under the
National Bank Act?” (2) “Can the Attorney General’s
allegations only be characterized as a usury claim challenging
the rate or amount of interest . . . ?” The district court
certified both questions, Hawaii ex rel. Louie v. JP Morgan
Chase & Co., 921 F. Supp. 2d 1059 (D. Haw. 2013), we
granted permission to appeal, and the Attorney General
timely perfected the appeal.2
II. Standard of Review
“We review de novo a district court’s denial of a motion
to remand to state court for lack of federal subject matter
jurisdiction.” Chapman v. Deutsche Bank Nat’l Trust Co.,
651 F.3d 1039, 1043 (9th Cir. 2011) (per curiam). Removal
and subject matter jurisdiction statutes are “strictly
construed,” and a “defendant seeking removal has the burden
2
The district court also held that section 521 of the Depository
Institutions Deregulation and Monetary Control Act of 1980, 12 U.S.C.
§ 1831d, completely preempted at least some of the claims against the
state-chartered Discover defendants. The Discover defendants settled
while this appeal was pending (as did the Chase and Bank of America
defendants). Because the remaining defendant banks are nationally
chartered, the preemptive effect of the 1980 act is no longer at issue.
10 STATE OF HAWAII V. HSBC BANK NEVADA
to establish that removal is proper and any doubt is resolved
against removability.” Luther v. Countrywide Home Loans
Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008).
III. Complete Preemption
The general removal statute, 28 U.S.C. § 1441(a), grants
district courts jurisdiction over state court actions that
originally could have been brought in federal court. Section
1331 provides district courts original jurisdiction over “civil
actions arising under the Constitution, laws, or treaties of the
United States.”
Under the canonical well-pleaded complaint rule, “a suit
‘arises under’ federal law for 28 U.S.C. § 1331 purposes
‘only when the plaintiff’s statement of his own cause of
action shows that it is based upon federal law.’” Vaden v.
Discover Bank, 556 U.S. 49, 60 (2009) (alteration omitted)
(quoting Louisville & Nashville R.R. Co. v. Mottley, 211 U.S.
149, 152 (1908)). Notwithstanding this rule, when a federal
statute wholly displaces state law and provides the exclusive
cause of action for a plaintiff’s requested relief, we must
“recharacterize a state law complaint . . . as an action arising
under federal law.” Metro. Life Ins. Co. v. Taylor, 481 U.S.
58, 64 (1987). In such cases, federal law “completely
preempts” the state law claims. Franchise Tax Bd. v. Constr.
Laborers Vacation Trust, 463 U.S. 1, 24 (1983).
Two provisions in the National Bank Act, 12 U.S.C.
§§ 85–86, completely preempt state law claims challenging
interest rates charged by national banks. Beneficial Nat’l,
539 U.S. at 10–11. Section 85 allows a national bank to
impose interest at the rate authorized by the state in which the
bank is “located” or “at a rate of 1 per centum in excess of the
STATE OF HAWAII V. HSBC BANK NEVADA 11
discount rate on ninety-day commercial paper in effect at the
Federal reserve bank in the Federal reserve district where the
bank is located, whichever may be the greater.” If a national
bank knowingly charges a rate that exceeds this limit, section
86 authorizes the borrower to recover double damages on the
excess interest paid, and the lender forfeits any right to
outstanding interest payments.
A.
The Attorney General first contends that in finding
complete preemption, the district court erred by relying on
declarations submitted by the card providers describing their
payment protection plans.3 We disagree.
Federal courts typically may only look to the plaintiff’s
complaint to determine federal question jurisdiction. See
Coleman v. Estes Express Lines, Inc., 631 F.3d 1010, 1016
(9th Cir. 2011). However, when a defendant asserts that a
claim is completely preempted, examination of extra-pleading
material is permitted. See Aetna Health Inc. v. Davila,
542 U.S. 200, 211 (2004) (reading the complaint and “various
plan documents” to determine if a claim was completely
preempted); Schroeder v. Trans World Airlines, Inc.,
702 F.2d 189, 191 (9th Cir. 1983) (reviewing “additional
facts in the petition for removal” to find a claim completely
preempted), overruled on other grounds by Moore-Thomas v.
Alaska Airlines, Inc., 553 F.3d 1241, 1246 (9th Cir. 2009).
3
The Attorney General also argues that only the three banks that
submitted declarations can rely on them. But, the district court did not
abuse its discretion in finding that “Defendants have presented joint
arguments regarding the nature of the plans offered by all of the banks.”
Louie, 907 F. Supp. 2d at 1211.
12 STATE OF HAWAII V. HSBC BANK NEVADA
This makes doctrinal sense—the complete preemption
doctrine is “an exception . . . to the well-pleaded complaint
rule.” Davila, 542 U.S. at 207.
In any event, the supposed error was harmless; the
declarations restated facts already recited in the complaints.
Cf. H.K. Supermarket v. Kizer, 830 F.2d 1078, 1080 n.1 (9th
Cir. 1987) (considering extra-pleading material is harmless if
dismissal under Federal Rule of Civil Procedure 12(b)(6)
would be proper when reviewing the complaint alone).
B.
The Attorney General next argues that payment protection
plan fees are not “interest” on a loan under § 85, but rather
charges for an independent service. This argument has
somewhat more purchase.
The Office of the Comptroller of the Currency (OCC) has
defined “interest” in § 85 as:
any payment compensating a creditor or
prospective creditor for an extension of credit,
making available of a line of credit, or any
default or breach by a borrower of a condition
upon which credit was extended. It includes,
among other things, the following fees
connected with credit extension or
availability: numerical periodic rates, late
fees, not sufficient funds (NSF) fees charged
when a borrower tenders payment on a debt
with a check drawn on insufficient funds,
overlimit fees, annual fees, cash advance fees,
and membership fees. It does not ordinarily
STATE OF HAWAII V. HSBC BANK NEVADA 13
include appraisal fees, premiums and
commissions attributable to insurance
guaranteeing repayment of any extension of
credit, finders’ fees, fees for document
preparation or notarization, or fees incurred to
obtain credit reports.
12 C.F.R. § 7.4001(a). The Supreme Court approved this
definition in Smiley v. Citibank (South Dakota), N.A., holding
that the examples in § 7.4001(a) drew a reasonable distinction
between (a) expenses that “are assessed for simply making
the loan, or for the borrower’s default,” and (b) fees
“specifically assigned” to services incidental to the loan, such
as reimbursements for processing an application, premiums
tied to loan insurance, and appraisal costs. 517 U.S. 735,
741–42 (1996).
Like the Fifth Circuit and the OCC, we doubt that
payment protection plan fees are interest. See Hood ex rel.
Mississippi v. JP Morgan Chase & Co., 737 F.3d 78, 90–92
(5th Cir. 2013) (per curiam) (suggesting that payment
protection plan fees are not interest); Debt Cancellation
Contracts and Debt Suspension Agreements, 67 Fed. Reg.
58,962, 58,694 (Sept. 19, 2002) (“The OCC’s regulations
reflect the fact that national banks may set [payment
protection plan] fees . . . . Section 7.4002 of our rules
authorizes national banks to establish non-interest charges
and fees ‘according to sound banking judgment and safe and
sound banking principles.’” (emphasis added) (quoting
12 C.F.R. § 7.4002)). But we leave this question for another
day. Even assuming that protection plan fees are interest, the
complaints here did not allege that the card providers charged
excessive interest rates.
14 STATE OF HAWAII V. HSBC BANK NEVADA
C.
For the complete preemption doctrine to apply, one of the
Attorney General’s state law claims must be governed by
§§ 85 and 86. Beneficial Nat’l, 539 U.S. at 7–8. The
Attorney General argues this is not the case here, because
those sections only preempt claims that explicitly invoke a
state usury law.
At first glance, this argument has some attraction. In
Beneficial National, the plaintiffs “expressly charged” that a
national bank violated state usury laws. 539 U.S. at 9. The
Supreme Court held that §§ 85 and 86 “supersede both the
substantive and the remedial provisions of state usury laws
and create a federal remedy for overcharges that is exclusive,
even when a state complainant, as here, relies entirely on state
law.” Id. at 11.
But, on close analysis, the Attorney General’s argument
founders. Section 85, without using the word “usury,” sets
the rate of interest that a national bank may charge. Section
86 uses the word “usurious” to define a limitations period, but
creates a right of action for plaintiffs charged “a rate of
interest greater than is allowed by section 85.” Congress
enacted these provisions so that a national bank could “charge
its out-of-state credit-card customers an interest rate on
unpaid balances allowed by its home State, when that rate is
greater than that permitted by the State of the bank’s
nonresident customers.” Marquette Nat’l Bank of Minn. v.
First of Omaha Serv. Corp., 439 U.S. 299, 301 (1978). Thus,
when a plaintiff alleges that a national bank charged “a rate
of interest greater than is allowed,” the claim falls within the
scope of §§ 85 and 86, regardless of the state law term
invoked.
STATE OF HAWAII V. HSBC BANK NEVADA 15
That the plaintiffs in Beneficial National happened to
invoke “expressly” Alabama’s usury statute does not mean
that the National Bank Act only preempts complaints that cite
a state usury law. Federal courts are not bound by the labels
that litigants attach to completely preempted claims. In
Davila, for example, plaintiffs attempted to evade complete
preemption under section 502(a) of the Employee Retirement
Income Security Act (ERISA), 29 U.S.C. § 1132(a), by
insisting that their actions sounded in tort. 542 U.S. at
214–15. The Supreme Court declined the gambit, holding
that “distinguishing between pre-empted and non-pre-empted
claims based on the particular label affixed to them would
‘elevate form over substance and allow parties to evade’ the
pre-emptive scope of ERISA simply ‘by relabeling their
contract claims.’” Id. at 214 (quoting Allis-Chalmers Corp.
v. Lueck, 471 U.S. 202, 211 (1985)); see also Dishman v.
UNUM Life Ins. Co. of Am., 269 F.3d 974, 983 (9th Cir.
2001) (holding that claimants cannot escape complete
preemption by “dressing up” their claims).
We, therefore, must decide whether the complaints
challenged the “rate of interest” that the card providers
charged, regardless of the state law monikers affixed to the
Attorney General’s claims. We conclude that they did not.
Counts I and II alleged that the card providers violated
sections 480-2(d), 480-13.5, and 481A-3 of the Hawaii
Revised Statutes, which govern business disclosure,
contractual terms, and trade practices. None of these
provisions proscribes the interest that a financial institution
may charge.
Nor did the third count—the unjust enrichment claim—
challenge the card providers’ interest rates. This count
16 STATE OF HAWAII V. HSBC BANK NEVADA
merely alleged that Hawaii residents unjustly enriched their
card providers by “unknowingly paying unauthorized or
otherwise improper charges.” Indeed, the Attorney General
could not, under Hawaii law, assert that the card providers
unjustly charged excessive interest rates. See Caraang v.
PNC Mortg., 795 F. Supp. 2d 1098, 1117–18 (D. Haw. 2011)
(holding that under Hawaii law, “express contracts . . .
preclude an unjust enrichment claim” when plaintiffs alleged
that banks charged excessive interest rates); Porter v. Hu,
169 P.3d 994, 1006 (Haw. Ct. App. 2007) (“[A]n action for
unjust enrichment cannot lie in the face of an express contract
. . . .”).
The monetary remedies requested for these violations—
civil penalties and restitution—may well require the card
providers to disgorge any financial gain from the fees. But if
a plaintiff asserts a usury claim simply by virtue of requesting
damages, the states’ settled authority “to regulate national
banks in areas such as contracts, debt collection, acquisition
and transfer of property, and taxation, zoning, criminal, and
tort law” would be rendered meaningless. Bank of Am. v.
City & Cnty. of S.F., 309 F.3d 551, 559 (9th Cir. 2002).
The defendants nevertheless insist that the complaints
implied that Hawaii consumers were charged excessive
interest rates. They note the complaints alleged that card
holders received “virtually no benefit” from the card
providers’ debt protection products, that the providers
purposefully marketed these products to make “substantial
sums of money,” and that the providers charged “over-the-
limit fees.”
Read in context, however, these allegations are most
consistent with a Uniform Deceptive Trade Practice Act
STATE OF HAWAII V. HSBC BANK NEVADA 17
claim. Subsection 481A-3(a)(5) defines a deceptive trade
practice as “[r]epresent[ing] that goods or services have . . .
uses, benefits or quantities that they do not have.” In
pleading a violation of this subsection, the Attorney General
properly alleged that the card providers represented that their
services would prevent consumers from defaulting, but, in
fact, the plans did not provide that benefit.
The Attorney General could have claimed that the card
providers charged excessive fees. But he did not; even if the
facts in the complaints might support a § 86 claim, that does
not mean the Attorney General pleaded one. Again, Davila
provides useful guidance. The Court there held that ERISA
completely preempts a state law claim “if an individual, at
some point in time, could have brought his claim under” the
federal statute, and “there is no other independent legal duty
that is implicated by a defendant’s actions.” Davila, 542 U.S.
at 210; see also Caterpillar Inc. v. Williams, 482 U.S. 386,
394–95 (1987) (holding the same under section 301 of the
Labor Management Relations Act, 29 U.S.C. § 185).
The state law claims here were independent of and did not
“merely duplicate[] rights and remedies available under”
§§ 85 and 86. Fossen v. Blue Cross & Blue Shield of Mont.,
Inc., 660 F.3d 1102, 1111 (9th Cir. 2011). The unfair and
deceptive practice claims targeted alleged marketing
misrepresentations. The unjust enrichment claims arose from
the purported failure to obtain consent before enrolling
consumers in debt protection products. Regardless of the
rates charged, the banks had independent state law
obligations to obtain consent from and not to deceive
consumers. These claims are not preempted by the National
Bank Act.
18 STATE OF HAWAII V. HSBC BANK NEVADA
In reaching this conclusion, we join the Fifth Circuit.4 In
Hood, the Mississippi Attorney General alleged that credit
card providers violated the Mississippi Consumer Protection
Act. 737 F.3d at 82–83. The complaints asserted that
payment protection plans “have little value to certain
customers” and that “the Plans can trigger over-the-limit
fees.” Id. at 93 & n.14. The Fifth Circuit held that §§ 85 and
86 did not completely preempt the claims, as “there is a
difference between alleging that certain customers are being
4
A number of district courts also agree. See, e.g., West Virginia ex rel.
McGraw v. JPMorgan Chase & Co., 842 F. Supp. 2d 984, 993 (S.D.W.
Va. 2012) (“[E]very allegation that an interest charge is improper need not
be an allegation that it is usurious; such a rule would consume any state
fraud action involving an ‘interest’ product.”); Young v. Wells Fargo &
Co., 671 F. Supp. 2d 1006, 1021 (S.D. Iowa 2009) (“[T]he basis of the
alleged excessiveness is that Wells Fargo charged fees when they should
not, a wholly different claim from a claim that Wells Fargo applied an
illegal interest rate.”); Anderson v. Ocwen Fin. Corp., No. CIVA
4:05CV243 MB, 2006 WL 1515682, at *1 (N.D. Miss. May 26, 2006)
(“[A]llegations of ‘[e]xcessively high and/or false points, closing costs and
service charges’ with no mention of ‘usury’ does not constitute a state law
usury claim for complete preemption purposes.” (second alteration in
original)); Cortazar v. Wells Fargo & Co., No. C 04-894 JSW, 2004 WL
1774219, at *1, *4–5 (N.D. Cal. Aug. 9, 2004) (holding that unjust
enrichment and consumer protection claims, which alleged banks
“induced borrowers to enter into unfavorable loans with ‘above-market
interest rates’ and ‘exorbitant’ points and fees,” were not completely
preempted); Cross-Cnty. Bank v. Klussman, No. C-01-4190-SC, 2004 WL
966289, at *6 (N.D. Cal. Apr. 30, 2004) (“Plaintiff does not challenge the
legality of the rate of interest charged by Defendants. Rather, Plaintiff
claims that various interest fees were not disclosed, were unwarranted,
were based on charges that were themselves improper, and in short, should
never have been charged at all.”).
STATE OF HAWAII V. HSBC BANK NEVADA 19
charged too much, and alleging that they should have never
been charged for the service in the first place.” Id. at 93.5
We conclude that the Attorney General did not plead a
completely preempted claim and that the district court
therefore erred in finding federal question jurisdiction. We
now turn to whether CAFA provides an alternative basis for
jurisdiction.
IV. CAFA
A.
The Attorney General’s certification motion raised two
questions, neither of which concerns CAFA. Section
1292(b), however, grants appellate jurisdiction over
interlocutory orders, not questions, and we “may address any
issue fairly included within the certified order.” Yamaha
5
The district court decisions marshaled by the card providers are not to
the contrary. In those cases, the complaints expressly alleged that
financial institutions had charged excessive interest rates. See, e.g.,
Forness v. Cross Country Bank, Inc., No. 05-CV-417-DRH, 2006 WL
240535, at *3 (S.D. Ill. Jan. 13, 2006) (noting Plaintiffs admitted “that
they do, in part, challenge the amount of Defendants’ fees”); Austin v.
Provident Bank, No. CIV.A.4:04 CV 33 P B, 2005 WL 1785285, at *1, *5
(N.D. Miss. July 26, 2005) (finding a claim alleging a bank provided
“overpriced loans at interest rates which were outside the reasonable
commercial standards of appropriate risk-based pricing” completely
preempted (internal quotation marks omitted)); Santos v. Household Int’l,
Inc., No. C03-1243 MJJ, 2003 WL 25911112, at *3 (N.D. Cal. Oct. 24,
2003) (holding a cause of action asserting an “over limit fee was
unconscionable because it was a flat rate fee that was too high”
completely preempted); Hill v. Chem. Bank, 799 F. Supp. 948, 950, 954
(D. Minn. 1992) (holding a claim alleging excessive late fees and over
limit fees completely preempted).
20 STATE OF HAWAII V. HSBC BANK NEVADA
Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).
Because the certified order denied the motions to remand for
lack of subject matter jurisdiction, we may affirm if the
district court had any basis of jurisdiction. See Lumber Prod.
Indus. Workers Local No. 1054 v. W. Coast Indus. Relations
Ass’n, Inc., 775 F.2d 1042, 1047 (9th Cir. 1985). We
therefore exercise our discretion to address CAFA
jurisdiction.
B.
CAFA grants district courts original jurisdiction over “a
class action” if the class has more than 100 members, the
amount in controversy is greater than $5,000,000, and the
parties are minimally diverse. 28 U.S.C. § 1332(d)(2),
(5)(B). A “class action” is defined as “any civil action filed
under rule 23 of the Federal Rules of Civil Procedure or
similar State statute or rule of judicial procedure authorizing
an action to be brought by 1 or more representative persons
as a class action.” Id. § 1332(d)(1)(B). Because these
complaints were not filed under Federal Rule 23, the issue is
whether the Attorney General filed them under a “similar”
state rule or statute.
The complaints asserted that the Attorney General
brought these actions under: (1) subsection 480-2(d), which
provides that “[n]o person other than a consumer, the attorney
general or the director of the office of consumer protection
may bring an action based upon unfair or deceptive acts
declared unlawful by this section”; (2) section 661-10, which
allows the Attorney General to “bring and maintain an
action” in order “to collect or recover any money or penalty
. . . or enforce any other right”; and (3) the Attorney
General’s “parens patriae authority.”
STATE OF HAWAII V. HSBC BANK NEVADA 21
These state procedural devices are not similar to a Rule 23
action. Subsection 480-2(d) identifies who may bring an
action; it does not state the form an action must take. Section
661-10 grants the Attorney General the authority to bring
civil enforcement actions, which are not class actions. See
Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 322–25
(1980). And, a common law parens patriae suit is not a
procedural device similar to Rule 23. Chimei Innolux,
659 F.3d at 847–49; see also Mississippi ex rel. Hood v. AU
Optronics Corp., 134 S. Ct. 736, 739 (2014) (holding that a
parens patriae suit is not a CAFA mass action).
The card providers, however, contend that under
subsection 480-14(b), any action brought by the Attorney
General on behalf of consumers is perforce a class action.
That statute provides: “The attorney general . . . may bring a
class action on behalf of consumers based on unfair or
deceptive acts or practices declared unlawful by section 480-
2. Actions brought under this subsection shall be brought as
parens patriae . . . .” Although the complaints “specifically
disclaim[ed]” class status, the card providers insist that we
ignore those disclaimers and transmogrify these suits into
class actions.
We decline the invitation. As the district court noted, the
card providers may well have the better reading of Hawaii
law, and the Attorney General’s attempt to bring these actions
while disclaiming class status may fail under state law.
Nonetheless, we cannot disregard the complaints’
unambiguous class action disclaimers.6 To be removable
6
At oral argument, the Attorney General represented that he will not
attempt to make this case a class action, regardless of how litigation
proceeds on remand.
22 STATE OF HAWAII V. HSBC BANK NEVADA
under CAFA, a “class action” must be “filed under” Rule 23
or a state law equivalent. § 1332(d)(1)(B). The appropriate
inquiry is therefore whether a complaint seeks class status.
Accordingly, we have held that a plaintiff files a class action
for CAFA purposes by invoking a state class action rule,
regardless of whether the putative class ultimately will be
certified. United Steel Workers Int’l Union v. Shell Oil Co.,
602 F.3d 1087, 1091–92 (9th Cir. 2010).
The converse is also true: Failure to request class status or
its equivalent is fatal to CAFA jurisdiction. In Baumann v.
Chase Investment Services Corp., for example, the defendants
argued that California Private Attorney General Act (PAGA)
“actions are ‘class actions’ under CAFA because PAGA is a
state procedural law that would be displaced by Rule 23 in
federal court.” 747 F.3d 1117, 1124 (9th Cir. 2014). We
rejected the argument, holding that the issue “is simply one
of statutory construction—whether the action sought to be
removed was ‘filed under’ a state statute ‘similar’ to Rule
23.” Id. As the plaintiff’s complaint was brought under
PAGA, a statute not similar to Rule 23, it was irrelevant that
the action might later be converted to a class action if
removed. Id.
The Supreme Court’s recent decision in AU Optronics is
also instructive on this point. In interpreting CAFA’s mass
action provisions, the Court cautioned that CAFA largely
incorporates “certain” traditional exceptions to the general
rule that the plaintiff is the master of a complaint for
jurisdictional purposes. 134 S. Ct. at 745–46. For example,
plaintiffs may not fraudulently join a non-diverse party,
Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th
Cir. 2001), collusively assign an interest in a case, Wheeler v.
City & Cnty. of Denver, 229 U.S. 342, 349 (1913),
STATE OF HAWAII V. HSBC BANK NEVADA 23
improperly treat a state as a real party in interest, Mo., Kan.
& Tex. Ry. Co. v. Hickman, 183 U.S. 53, 61 (1901), or avoid
CAFA removal by promising, before class certification, to
seek less than $5,000,000 in damages, Standard Fire Ins. Co.
v. Knowles, 133 S. Ct. 1345, 1350 (2013).
Here, the only relevant exception to the rule that “the
party who brings a suit is master to decide what law he will
rely upon,” The Fair v. Kohler Die & Specialty Co., 228 U.S.
22, 25 (1913), is the complete preemption doctrine. As
CAFA does not completely preempt state law, we cannot
ignore the complaints’ disclaimers and convert these cases
into class actions.
Our sister circuits agree.7 In Purdue Pharma L.P. v.
Kentucky, the Kentucky Attorney General brought various
state law claims on behalf of Kentucky consumers, invoking
the State’s “parens patriae authority” but not a class action
rule. 704 F.3d 208, 211 (2d Cir. 2013). The defendants
urged the court to pierce the pleadings and recognize that “the
Attorney General [was] actually relying, albeit
surreptitiously, on [Kentucky’s class action rule] to assert
representative claims for restitution on behalf of individual
consumers.” Id. at 216 n.7. The Second Circuit rejected the
argument. Even if the Attorney General “could have utilized
some other statutory or procedural mechanism,” the court was
“hard pressed to understand how a suit may be ‘filed under’
7
So do a number of district courts. See, e.g., Nat’l Consumers League
v. Flowers Bakeries, LLC., No. CV 13-1725 (ESH), --- F. Supp. 2d. ---,
2014 WL 1372642, at *6 (D.D.C. Apr. 8, 2014); In re Vioxx Prods. Liab.
Litig., 843 F. Supp. 2d 654, 663–64 (E.D. La. 2012); Arizona ex rel.
Horne v. Countrywide Fin. Corp., No. CV-11-131-PHX-FJM, 2011 WL
995963, at *3 (D. Ariz. Mar. 21, 2011).
24 STATE OF HAWAII V. HSBC BANK NEVADA
a statute or rule that does not even appear on the face of the
complaint.” Id. As we do here, the Second Circuit noted that
the Attorney General’s claims might fail without class status,
but nonetheless refused to imply that the complaint was “filed
under” a state rule similar to Rule 23. Id. at 220 (“Whether
Plaintiffs may proceed and ultimately recover on their claims
presents complex questions of Kentucky law, which we only
see through Erie’s glass darkly, and upon which we express
no opinion.”).
The Third Circuit followed this line of reasoning in Erie
Insurance Exchange v. Erie Indemnity Co., 722 F.3d 154 (3d
Cir. 2013). Erie Insurance Exchange asserted state law
claims “in the name of” its members, invoking Pennsylvania
Rule of Civil Procedure 2152. Id. at 157. Because
Pennsylvania law prohibits insurance exchanges from suing
under Rule 2152, the defendants argued that the Exchange
actually had brought a class action. Id. at 158–59. The Third
Circuit refused to “rewrite the Complaint to create
jurisdiction under the pretense of correcting a state-law
error,” holding that plaintiffs “are the masters of their
complaints and are ‘free to choose the statutory provisions
under which they will bring their claims.’ If the case is
procedurally unsound under Pennsylvania’s rules, the
Commonwealth’s courts are best suited to correct the
problem.” Id. at 159 (citation omitted) (quoting Purdue
Pharma, 704 F.3d at 216 n.7).
The Fourth Circuit also agrees. In West Virginia ex rel.
McGraw v. CVS Pharmacy, Inc., the West Virginia Attorney
General filed a parens patriae suit against several
pharmacies, alleging violations of state law. 646 F.3d 169,
171–72 (4th Cir. 2011). The dissent would have found the
action removable under CAFA because the Attorney General
STATE OF HAWAII V. HSBC BANK NEVADA 25
had not asserted a valid parens patriae claim and “because
the essential requirements of a class action [were] met.” Id.
at 183 (Gilman, J., dissenting). The panel majority, however,
explained that the relevant question is not whether the suit
could be sustained as a parens patriae action under state and
federal law. Id. at 176 n.2. Rather, the “separate, and more
meaningful determination” was if the action was “brought
under a procedure ‘similar’ to Rule 23.” Id. (emphasis
added).8
Indeed, were we—as the card providers request—to
evaluate the “substance” of the pleadings, the result would be
the same. “To maintain a class action, the existence of the
class must be pleaded and the limits of the class must be
defined with some specificity. The grant, sua sponte, of class
action relief when it is neither requested nor specified, is an
obvious error.” Wilson v. Zarhadnick, 534 F.2d 55, 57 (5th
Cir. 1976) (citations omitted); see also 7AA Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 1785 (3d ed. 2005) (“[A court]
cannot convert an individual action into a class action on its
own motion.”). Moreover, a plaintiff who denies having
8
Addison Automatics, Inc. v. Hartford Casualty Insurance Co., 731 F.3d
740 (7th Cir. 2013), is not to the contrary. In Addison, a plaintiff filed a
class action against Domino Plastics. Domino stipulated to liability and
assigned its claims against its liability insurer to the lead plaintiff as class
representative. Id. at 741. The lead plaintiff then filed suit against the
liability insurer in state court but explicitly disclaimed class status. Id. at
742. The Seventh Circuit held that the plaintiff had filed a class action
because he remained “the representative of a class that was actually
certified ‘under Rule 23 or the state equivalent,’” and any ruling would
necessarily be in “in favor of the Class.” Id. at 742, 744 (internal
quotation marks omitted) (quoting LG Display Co. v. Madigan, 665 F.3d
768, 772 (7th Cir. 2011)).
26 STATE OF HAWAII V. HSBC BANK NEVADA
brought a class action surely cannot adequately represent the
purported class, see E. Tex. Motor Freight Sys. Inc. v.
Rodriguez, 431 U.S. 395, 405 (1977), and “the named
plaintiff’s and class counsel’s ability to fairly and adequately
represent unnamed [plaintiffs are] critical requirements in
federal class actions under Rules 23(a)(4) and (g),” Baumann,
747 F.3d at 1122.
Because the complaints unambiguously disclaimed class
status, these actions cannot be removed under CAFA. There
is therefore no basis for federal jurisdiction, and the cases
should have been remanded to state court.
V. Conclusion
For the foregoing reasons, the judgment of the district
court is REVERSED, and we REMAND with instructions to
remand these actions to state court.