AU Optronics Corporation v. State of South Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AU OPTRONICS CORPORATION; AU 
OPTRONICS CORPORATION AMERICA,
Petitioners,
v.  No. 11-254
STATE OF SOUTH CAROLINA,
Respondent.

LG DISPLAY CO., LTD.; LG 
DISPLAY AMERICA, INC.,
Petitioners,
v.  No. 11-255
STATE OF SOUTH CAROLINA,
Respondent.

On Petitions for Permission to Appeal
from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(3:11-cv-00731-JFA; 3:11-cv-00729-JFA)
Argued: September 18, 2012
Decided: October 25, 2012
Before KING, DUNCAN, and KEENAN, Circuit Judges.
2 AU OPTRONICS v. SOUTH CAROLINA
Petitions for permission to appeal granted and remand deci-
sions affirmed by published opinion. Judge King wrote the
opinion, in which Judge Duncan and Judge Keenan joined.
ARGUED: William Walter Wilkins, NEXSEN PRUET,
Greenville, South Carolina, for AU Optronics Corporation
and AU Optronics Corporation America. Henry L. Parr, Jr.,
WYCHE, PA, Greenville, South Carolina, for LG Display
Co., Ltd., and LG Display America, Inc. Susan Campbell,
MCGOWAN, HOOD & FELDER, LLC, Columbia, South
Carolina, for State of South Carolina. ON BRIEF: Christo-
pher Alan Nedeau, Carl Lawrence Blumenstein, Veronica
Lashawn Harris, NOSSAMAN, LLP, San Francisco, Califor-
nia; Kirsten E. Small, NEXSEN PRUET, Greenville, South
Carolina, for AU Optronics Corporation and AU Optronics
Corporation America. Wallace K. Lightsey, Sarah S. Batson,
Wade S. Kolb, III, WYCHE, PA, Greenville, South Carolina;
Michael R. Lazerwitz, CLEARY GOTTLIEB STEEN &
HAMILTON, LLP, New York, New York, for LG Display
Co., Ltd., and LG Display America, Inc. Alan M. Wilson,
Attorney General, C. Havird Jones, Jr., Assistant Deputy
Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Columbia, South Carolina; Chad A. McGowan,
MCGOWAN, HOOD & FELDER, LLC, Rock Hill, South
Carolina, for State of South Carolina.
OPINION
KING, Circuit Judge:
Defendants AU Optronics Corporation and AU Optronics
Corporation America (together, "AU Optronics") and LG Dis-
play Co., Ltd., and LG Display America, Inc. (together, "LG
Display"), seek to appeal the district court’s rejection of their
AU OPTRONICS v. SOUTH CAROLINA 3
assertions of federal court jurisdiction under the Class Action
Fairness Act of 2005 ("CAFA"). The State of South Carolina
initiated these cases in state court, alleging violations of the
State’s Antitrust Act and its Unfair Trade Practices Act
("SCUTPA"). AU Optronics and LG Display removed the
cases to the District of South Carolina, invoking CAFA and
general diversity principles. By virtually identical opinions of
September 14, 2011, the district court remanded the proceed-
ings to the state court. See South Carolina v. AU Optronics
Corp., No. 3:11-cv-00731 (D.S.C. Sept. 14, 2011); South Car-
olina v. LG Display Co., Ltd., No. 3:11-cv-00729 (D.S.C.
Sept. 14, 2011) (collectively, the "Remand Decisions"). The
defendants have filed separate petitions for permission to
appeal the Remand Decisions, contending that the court erred
in deeming CAFA’s jurisdictional requirements not satisfied.
As explained below, we grant the petitions for permission to
appeal, reject the defendants’ contention concerning CAFA
jurisdiction, and affirm the Remand Decisions.1
I.
A.
These nearly identical lawsuits were initiated by the State
on February 18, 2011, in the state court of Richland County,
South Carolina. The complaints alleged that the defendants —
generally described as manufacturers of liquid crystal display
("LCD") panels — had engaged in a price-fixing conspiracy
from 1996 through 2006.2 The State sought relief from the
1
After the petitions for permission to appeal were filed in this Court, the
State sought consolidation of the appellate proceedings for oral argument
and disposition. On July 16, 2012, we denied the State’s request. AU
Optronics and LG Display thereafter submitted separate briefs and the
cases were separately argued. Having now fully considered the briefs and
arguments presented by the parties, we consolidate the appellate proceed-
ings for disposition.
2
The complaints differ in one respect. Because LG Display pleaded
guilty to federal criminal charges emanating from the alleged conspiracy,
see 15 U.S.C. § 1, the State’s lawsuit against LG Display contains a para-
graph entitled "Criminal Conspiracy to Fix Prices." No similar allegation
is made in the AU Optronics action.
4 AU OPTRONICS v. SOUTH CAROLINA
defendants in three common respects: civil forfeitures for vio-
lations of the Antitrust Act, see S.C. Code §§ 39-3-130, -180;
statutory penalties for violations of SCUTPA, id. § 39-5-110;
and restitution on behalf of South Carolina citizens for viola-
tions of SCUTPA, id. § 39-5-50.3
On March 25, 2011, the defendants removed these cases to
the District of South Carolina. Each notice asserted three
grounds for removal: (1) that the case is a class action remov-
able under CAFA, 28 U.S.C. §§ 1332(d), 1453; (2) that it is
also a mass action removable under CAFA; and (3) that it is
removable under general diversity jurisdiction, as embodied
in 28 U.S.C. § 1332(a). The common theory underlying
removal is that, even though the State is the only named plain-
tiff, the "real parties in interest" to the restitution claims are
the citizens of South Carolina who purchased products utiliz-
ing LCD panels manufactured by the defendants. More spe-
cifically, the defendants maintained that, when those citizens
are properly viewed as plaintiffs, both cases satisfy CAFA’s
requirements for mass and class actions, and the proper —
albeit unnamed — plaintiffs are completely diverse from AU
Optronics and LG Display.4 On April 24, 2011, the State
moved to remand these cases to state court for lack of subject
matter jurisdiction, contending that CAFA’s requirements for
jurisdiction are not satisfied, and that the State, as the only
named plaintiff, is not a citizen for purposes of diversity juris-
diction.
3
The restitution provision at issue in the complaints is found in
SCUTPA and provides that,
[t]he court may make such additional orders or judgments as may
be necessary to restore to any person who has suffered any ascer-
tainable loss by reason of the use or employment of such unlaw-
ful method, act or practice, any moneys or property, real or
personal, which may have been acquired by means of any prac-
tice declared to be unlawful in this article.
S.C. Code § 39-5-50(b).
4
The AU Optronics defendants are Texas and Taiwan corporations, and
the LG Display defendants are California and Korea corporations.
AU OPTRONICS v. SOUTH CAROLINA 5
B.
On August 22, 2011, the district court heard argument on
the State’s remand motions. Three weeks later, the court
remanded both cases to state court. In so ruling, the court first
decided that the cases failed to satisfy CAFA’s minimal diver-
sity requirement. See Remand Decisions 10. As the court rec-
ognized, class and mass actions are subject to the
jurisdictional dictates of 28 U.S.C. § 1332(d), which provides,
inter alia, that the parties in such actions need only be mini-
mally diverse from one another to justify removal to federal
court. This minimal diversity requirement is satisfied when
"any member of a class of plaintiffs is a citizen of a State dif-
ferent from any defendant." See § 1332(d)(2)(A). Though the
defendants in these cases are citizens of Taiwan, Korea,
Texas, and California, see supra note 4, South Carolina is not
a citizen of any state for purposes of diversity jurisdiction. See
Moor v. Alameda County, 411 U.S. 693, 717 (1973) ("There
is no question that a State is not a ‘citizen’ for purposes of the
diversity jurisdiction."). Thus, minimal diversity does not
exist among the named parties, as the district court explained.
See Remand Decisions 5.
In light of the defendants’ contention that South Carolina
citizens are real parties in interest in these cases, the district
court also recognized the proposition that "a federal court
must disregard nominal or formal parties and rest jurisdiction
only upon the citizenship of real parties to the controversy."
Remand Decisions 5 (citing Navarro Sav. Ass’n v. Lee, 446
U.S. 458, 461 (1980)). Nevertheless, the court determined that
these proceedings were parens patriae lawsuits, and that
South Carolina had asserted a quasi-sovereign interest therein,
as opposed to the private interests of a subset of its popula-
tion. Id. at 9-10.5 That framing of the complaints, the court
5
Parens patriae, literally "parent of the country," is a doctrine that pro-
vides a state with standing to sue as a guardian of its citizens when the
state can "articulate an interest apart from the interests of particular private
6 AU OPTRONICS v. SOUTH CAROLINA
ruled, rendered South Carolina more than a nominal party to
these proceedings. Id. at 9-11. The court declined to parse the
complaints on a claim-by-claim basis, and it rejected the
defendants’ contention that the real parties in interest to the
restitution claims are citizens of South Carolina, and not the
State. Thus, the court did not include those citizens in its
diversity analysis. Rather, the court focused on the nature of
the cases as parens patriae actions and distinguished them
from proceedings where a state is pursuing claims on behalf
of private parties. The court explained that,
[u]nder a wholesale approach, the case[s are] parens
patriae action[s], where the State has a clear quasi-
sovereign interest in enforcing its own antitrust and
consumer protection laws. Based on this recognized
quasi-sovereign interest, the State is a real party in
interest to the action[s], and there is no need to
pierce the pleadings. As such, minimal diversity
does not exist.
Id.
Finally, the district court acknowledged that, in addition to
seeking civil forfeitures and statutory penalties, which South
Carolina is unquestionably entitled to do, the State was also
seeking restitution on behalf of individual citizens. Remand
Decisions 10-11. The court declined, however, to permit the
restitution claims to transform these cases into proceedings
parties." LG Display Co., Ltd. v. Madigan, 665 F.3d 768, 771 (7th Cir.
2011) (internal quotation marks omitted). A state may sue on behalf of its
citizens as parens patriae when the interests of a group of citizens are at
stake, as long as the state is also pursuing a quasi-sovereign interest. See
United States v. Johnson, 114 F.3d 476, 481-82 (4th Cir. 1997); In re
Edmond, 934 F.2d 1304, 1310 (4th Cir. 1991) ("The state must be more
than a nominal party without a real interest of its own; it must articulate
an interest apart from the interests of . . . particular private parties . . . ."
(internal quotation marks omitted)).
AU OPTRONICS v. SOUTH CAROLINA 7
where South Carolina citizens may be deemed real parties in
interest. The court explained that
it is possible for a State to have multiple interests in
a case, including some that are quasi-sovereign and
some that are not. While individual consumers may
benefit from the restitution sought by the State in
[these cases], the remedies sought in [these cases]
also generally inure to all residents of South Carolina
by making it less likely these defendants will engage
in future price-fixing and by recovering taxpayer
money paid to the defendants as overcharges.
Id. Concluding that South Carolina was properly pursuing
these parens patriae lawsuits under its own antitrust and
unfair trade practices laws, the court remanded them to the
state court in Richland County.6
After the Remand Decisions were rendered, the defendants
petitioned our Court for permission to pursue appeals under
CAFA, which specifically authorizes a court of appeals to
"accept an appeal from an order of a district court granting or
denying a motion to remand a class [or mass] action." 28
U.S.C. § 1453(c)(1).7 By Order of December 2, 2011, we
6
Other states have pursued or are pursuing similar actions against LCD
panel manufacturers, predicated on conduct similar to that alleged here.
For example, multi-district litigation being pursued in a California federal
court involves such cases. See In re TFT-LCD (Flat Panel) Antitrust Litig.,
No. 3:07-md-01827-SI (N.D. Cal.). According to the Remand Decisions,
most of those cases allege violations of federal law, and the parties in
those matters have not contested federal jurisdiction. See Remand Deci-
sions 2.
7
Generally, a district court’s remand to state court of a removed case is
not appealable. See 28 U.S.C. § 1447(d) (providing that "[a]n order
remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise"). CAFA, however, creates an excep-
tion to this general proposition and permits a court of appeals to consider
an appeal from a remand order. See id. § 1453(c)(1).
8 AU OPTRONICS v. SOUTH CAROLINA
deferred ruling on the defendants’ petitions for permission to
appeal pending full briefing and argument.
II.
We review de novo the question of whether a district court
possessed subject matter jurisdiction under CAFA and, thus,
whether a remand to state court was appropriate. See Moffit
v. Residential Funding Co., LLC, 604 F.3d 156, 159 (4th Cir.
2010); In re Celotex Corp., 124 F.3d 619, 625 (4th Cir. 1997).
The burden of establishing federal jurisdiction for a class or
mass action under CAFA is on the removing party. See
Strawn v. AT&T Mobility LLC, 530 F.3d 293, 298 (4th Cir.
2008).
III.
In their petitions for permission to appeal, the defendants
have abandoned all but one of their grounds for removal. That
is, they maintain only that federal jurisdiction is proper
because their cases qualify as mass actions under CAFA. A
mass action is defined in CAFA as
any civil action . . . in which monetary relief claims
of 100 or more persons are proposed to be tried
jointly on the ground that plaintiffs’ claims involve
common questions of law or fact, except that juris-
diction shall exist only over those plaintiffs whose
claims in a mass action satisfy the jurisdictional
amount requirements under subsection (a) [that the
matter in controversy exceed $75,000].
28 U.S.C. § 1332(d)(11)(B)(i).8 To proceed as a mass action,
8
The CAFA definition of a class action is codified in 28 U.S.C.
§ 1332(d)(1), and the jurisdictional requirements for a class action are set
forth in subsections (2) through (10) thereof. Subsection (d)(11) defines a
mass action, and provides that "[f]or purposes of this subsection and sec-
AU OPTRONICS v. SOUTH CAROLINA 9
a civil action must therefore satisfy CAFA’s minimal diver-
sity requirement, its numerosity requirement of 100 or more
persons, and its amount-in-controversy requirement that all
claims, when aggregated, must exceed $5,000,000 and an
individual claim must exceed $75,000. Defendants contend
that these proceedings satisfy each of the mass action require-
ments.
A.
1.
Relying on Navarro Savings Ass’n v. Lee, 446 U.S. 458(1980), the defendants first urge us to recognize that South
Carolina is a nominal or formal party only. Thus, they assert
that we must, in order to properly decide the remand issue,
look to the citizenship of the real parties in interest (i.e., those
South Carolina citizens who purchased products with LCD
panels made by AU Optronics and LG Display). Indeed, even
when a state is pursuing a parens patriae action, "if the State
is only a nominal party without a real interest of its own —
then it will not have standing." Alfred L. Snapp & Son, Inc.
tion 1453, a mass action shall be deemed to be a class action removable
under paragraphs (2) through (10) if it otherwise meets the provisions of
those paragraphs." 28 U.S.C. § 1332(d)(11)(A). Thus, a mass action is
subject to the same jurisdictional requirements as a class action. As rele-
vant here, the minimal diversity jurisdictional hook is found in
§ 1332(d)(2)(A), which provides:
(2) The district courts shall have original jurisdiction of any civil
action in which the matter in controversy exceeds the sum or
value of $5,000,000, exclusive of interest and costs, and is a class
action in which—
(A) any member of a class of plaintiffs is a citizen of a State
different from any defendant
....
28 U.S.C. § 1332(d)(2)(A).
10 AU OPTRONICS v. SOUTH CAROLINA
v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 (1982). For
a state to be more than a nominal party in a lawsuit pursued
on behalf of its citizens, the complaint must pursue a "quasi-
sovereign" interest, or an interest "that the State has in the
well-being of its populace." Id. at 602.
The defendants find arguable support for their proposition
concerning the interests of individual South Carolina citizens
in Missouri, Kansas, & Texas Railway Co. v. Hickman, 183
U.S. 53 (1901), and Messer v. American Gems, Inc., 612 F.2d
1367, 1370 (4th Cir. 1980). In both matters, the party that ini-
tiated the lawsuit was determined to be a nominal party only,
rather than the real party in interest. In Hickman, the Supreme
Court ruled that there was federal jurisdiction where the plain-
tiff was a state, but also where the real and substantive plain-
tiffs in the controversy were real people who were citizens of
a different state than the defendants. See 183 U.S. at 60-61.
The Court explained that the citizenship of those individuals
counted toward diversity because any recovery in the action
would "not inure to the benefit of the state as a state in any
degree." Id. at 59 (explaining that the state is the real party in
interest when "the relief sought is that which inures to it
alone, and in its favor the judgment or decree, if for the plain-
tiff, will effectively operate").
More recently, in our Messer decision, we explained that,
in a wrongful death action, the citizenship of the beneficiary,
rather than the administrator, must be taken into account in
the diversity analysis. See 612 F.2d at 1370-71. AU Optronics
and LG Display thus contend that the restitution being sought
by the State will inure to the benefit of specific South Caro-
lina citizens and, as in Hickman and Messer, those beneficia-
ries are real parties in interest who must be taken into account
in our diversity analysis.
2.
AU Optronics and LG Display are correct in asserting that
South Carolina seeks restitution on behalf of certain of its citi-
AU OPTRONICS v. SOUTH CAROLINA 11
zens. As the district court recognized in the Remand Deci-
sions, however, the State pursues other remedies authorized
under its Antitrust Act and SCUTPA, each of which inure to
the benefit of the State’s treasury. The court, in the removal
proceedings, analyzed the State’s actions in their entireties,
focusing on its parens patriae role in the claims alleged. The
defendants contend in their petitions that we should now
adopt and apply what is referred to as the "claim-by-claim
approach" — as opposed to the "whole-case approach" — as
the proper analysis for our jurisdictional inquiry. Under the
claim-by-claim approach, a court must dissect the complaint
and decide whether the state is the beneficiary of each basis
for relief. If any party other than the state itself would benefit
from a particular claim — such as restitution — such party
should be deemed a real party in interest and thus a plaintiff.
The whole-case approach, on the other hand, requires the
court to consider the complaint in its entirety and decide from
the nature and substance of its allegations what interest the
state possesses in the lawsuit as a whole.
Our sister circuits have disagreed somewhat on whether to
apply the "whole-case approach" or the "claim-by-claim
approach" to the resolution of similar jurisdictional disputes.
For example, the Ninth Circuit, in Nevada v. Bank of America
Corp., recently held that the State of Nevada was the real
party in interest in its parens patriae action against a mort-
gage lender, even though some relief was being sought on
behalf of individual citizens. See 672 F.3d 661, 670 (9th Cir.
2012). The court of appeals reasoned that "Nevada brought
this suit pursuant to its statutory authority . . . because of its
interest in protecting the integrity of mortgage loan servic-
ing." Id. The court concluded, applying the whole-case
approach, that "Nevada’s sovereign interest in protecting its
citizens and economy from deceptive mortgage practices is
not diminished merely because it has tacked on a claim for
restitution." Id. Similarly, the Seventh Circuit in LG Display
Co., Ltd. v. Madigan, another of the LCD panel price-fixing
cases, rejected the claim-by-claim approach in favor of the
12 AU OPTRONICS v. SOUTH CAROLINA
whole-case approach and held, based on the "essential nature
and effect of the proceeding," that the State of Illinois was the
real party in interest in the lawsuit. See 665 F.3d 768, 772 (7th
Cir. 2011).
The Fifth Circuit, on the other hand, has applied the claim-
by-claim approach. See Louisiana ex rel. Caldwell v. Allstate
Ins. Co., 536 F.3d 418, 431 (5th Cir. 2008). The Caldwell
case was an antitrust action brought by Louisiana against sev-
eral insurance companies for conspiring to suppress competi-
tion. As part of the relief sought, Louisiana requested treble
damages on behalf of its citizens. The defendants removed the
case to federal court, arguing that, "although labeled parens
patriae, [the] case [was] in substance and fact a ‘class action’
or a ‘mass action’" under CAFA. Id. at 423. The Fifth Circuit
applied the claim-by-claim approach and determined that
Louisiana’s consumers were the real parties in interest with
respect to the treble damages claim. Id. at 429-30. The court
of appeals reasoned that, even though Louisiana possessed a
quasi-sovereign interest in pursuing the balance of its claims,
individual consumers were properly included in the diversity
analysis because a treble damages award would benefit them.
Id. Concluding that such consumers were Louisiana citizens
and diverse from the insurance companies, the court upheld
diversity jurisdiction and declined to mandate that the case be
remanded to state court. Id. at 430.
B.
We have never directly addressed the issue of whether the
whole-case approach or the claim-by-claim approach should
be utilized in situations such as this. Our recent decision in
West Virginia ex rel. McGraw v. CVS Pharmacy, Inc., how-
ever, is somewhat instructive. See 646 F.3d 169 (4th Cir.
2011). There, West Virginia’s Attorney General initiated a
lawsuit against several pharmacies for their failure to pass
along certain cost savings to consumers on generic prescrip-
tion drugs, in contravention of West Virginia law. The defen-
AU OPTRONICS v. SOUTH CAROLINA 13
dants removed the action under CAFA, and the district court
remanded on the State’s motion. After granting the defen-
dants’ petition for permission to appeal, we affirmed the
remand order. Even though West Virginia’s request for relief
included restitution and repayment of "excess charges" to
affected consumers, we ruled that the proceeding was not
properly a class action under CAFA because it was being pur-
sued under West Virginia statutes that were insufficiently
"similar" to the procedures mandated by Federal Rule of Civil
Procedure 23, as required by CAFA’s class action definition.
See id. at 177-78.9
Our CVS Pharmacy decision involved a dispute regarding
whether the case should be considered as a "class action"
under CAFA, rather than whether a CAFA "mass action" was
alleged, and our decision did not reach or address the issue of
minimal diversity.10 The panel majority, however, recognized
that the case was "essentially a parens patriae type of action
9
As we explained in CVS Pharmacy, CAFA "defines ‘class action’ to
mean ‘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.’" CVS Pharm., 646 F.3d at 174 (citations and emphasis omitted).
10
In response to a dissenting opinion, the panel majority in CVS Phar-
macy specifically declined to reach the issue we face today, explaining
that
[t]he dissent suggests that the Attorney General "does not have
a quasi-sovereign interest" in Count III because the reimburse-
ment sought . . . would flow directly to an identifiable group of
consumers, rather than to the State or its citizens generally. . . .
From this, the dissent concludes that Count III does not state a
valid parens patriae claim and that the action as a whole must be
classified as a class action. . . . [W]hile we conclude that this
action is a parens patriae action, based on the State’s deterrence
and consumer protection interests, that conclusion is not essential
to the separate, and more meaningful determination that the
action in this case was not brought under a procedure "similar"
to Rule 23.
646 F.3d at 176 n.2.
14 AU OPTRONICS v. SOUTH CAROLINA
for enforcement of [West Virginia’s] own laws on behalf of
itself and its citizens," and explained that the State possessed
a quasi-sovereign interest in the right to enforce its own con-
sumer protection laws in its own courts. CVS Pharm., 646
F.3d at 176, 179. Applying the principles of CVS Pharmacy,
South Carolina’s Attorney General is plainly authorized to
pursue a parens patriae action in state court, on behalf of
South Carolina citizens, for violations of the State’s antitrust
laws and SCUTPA. Moreover, like West Virginia in CVS
Pharmacy, South Carolina possesses a quasi-sovereign inter-
est in doing so.
Similar to West Virginia in CVS Pharmacy, and also to
Nevada in Bank of America Corp. — and unlike Louisiana in
Caldwell — the State of South Carolina "seeks substantial
relief that is available to it alone." Bank of Am. Corp., 672
F.3d at 672. The statute under which Louisiana sought treble
damages in Caldwell provided, in part, that "[a]ny person
who is injured . . . by reason of any act or thing forbidden by
this Part may sue . . . and shall recover threefold the dam-
ages." La. Rev. Stat. Ann. § 51:137 (emphasis added). The
Caldwell statute "plainly contemplated individual enforce-
ment," something not authorized by the relevant provisions of
South Carolina’s Antitrust Act or SCUTPA. See West Vir-
ginia ex rel. McGraw v. CVS Pharm., Inc., 748 F. Supp. 2d
580, 597 (S.D. W. Va. 2010). In the matters before us, more-
over, "there is no doubt that the Attorney General has statu-
tory authority to pursue such claims." Bank of Am. Corp., 672
F.3d at 670.
South Carolina’s Antitrust Act specifically subjects viola-
tors to civil forfeitures, "to be recovered by an action in the
name of the State, at the relation of the Attorney General."
S.C. Code § 39-3-180. Meanwhile, SCUTPA authorizes the
Attorney General, "acting in the name of the State," to seek
civil penalties and forfeitures, as well as injunctive relief,
when the court finds that a violation of SCUTPA has
occurred. Id. § 39-5-110. SCUTPA also authorizes the Attor-
AU OPTRONICS v. SOUTH CAROLINA 15
ney General to pursue an action in the name of the State seek-
ing injunctive relief if there is reason to believe someone is
violating the Act. See id. § 39-5-50(a). Thus, each of these
statutes is specifically enforceable by the State’s Attorney
General, who is authorized to pursue the claims being alleged
in the name of the State.
As explained by the Ninth Circuit in Bank of America
Corp., "[t]he Complaint, read as a whole, demonstrates that
[the State] is the real party in interest in this action." 672 F.3d
at 672. South Carolina’s claims for relief in these cases are
each unique to the State and are consistent with its role as
parens patriae, inasmuch as the State possesses a quasi-
sovereign interest in enforcing — in state court — its laws
with respect to price-fixing conspiracies. Furthermore, South
Carolina is the sole named plaintiff in these lawsuits. Indeed,
the provisions of the Antitrust Act and SCUTPA invoked in
the complaints designate the State as the proper plaintiff.
We are therefore satisfied to resolve these petitions for per-
mission to appeal by adopting the whole-case approach and
rejecting the claim-by-claim approach. In so doing, we con-
clude that the nature and effect of these actions demonstrate
that South Carolina is the real party in interest, a fact that is
unencumbered by the restitution claims. We therefore agree
with the Ninth and Seventh Circuits that a claim for restitu-
tion, when tacked onto other claims being properly pursued
by the State, alters neither the State’s quasi-sovereign interest
in enforcing its own laws, nor the nature and effect of the pro-
ceedings. The purpose of these cases is the protection of the
State’s citizens and upholding the integrity of South Carolina
law. The State, in these parens patriae actions, is enforcing
its own statutes in seeking to protect its citizens against price-
fixing conspiracies. That the statutes authorizing these actions
in the name of the State also permit a court to award restitu-
tion to injured citizens is incidental to the State’s overriding
interests and to the substance of these proceedings. Those citi-
zens are not named plaintiffs here, and they need not be con-
16 AU OPTRONICS v. SOUTH CAROLINA
sidered in the diversity analysis of the State’s claims. Thus,
CAFA’s minimal diversity requirement is not satisfied in
either of these cases, and the district court properly remanded
them to state court.11
IV.
Pursuant to the foregoing, the petitions for appeal of AU
Optronics and LG Display are hereby granted, and the
Remand Decisions are affirmed.
PETITIONS FOR PERMISSION TO APPEAL GRANTED
AND REMAND DECISIONS AFFIRMED
11
Inasmuch as we resolve these proceedings on the issue of minimal
diversity, we need not address or rule on the other CAFA jurisdictional
requirements.