Proctor v. Vishay Intertchnolog

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REBECCA PROCTOR; REX BROOKS; 
JOHN DONOVAN; ROBERT NEEDLES
on behalf of Siliconix, Inc.
themselves and on behalf of all
minority shareholders of Siliconix,
Inc., similarly situated,
No. 07-16527
Plaintiff-Appellant,
v.  D.C. No.
CV-06-04134-JF
VISHAY INTERTECHNOLOGY INC.;
OPINION
VISHAY TEMIC SEMICONDUCTOR
ACQUISITION HOLDINGS
CORPORATION; SILICONIX, INC.;
ERNST & YOUNG LLP; FELIX D.
ZANDMAN,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
February 10, 2009—San Francisco, California
Filed October 9, 2009
Before: David R. Thompson, Marsha S. Berzon, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Berzon
14495
PROCTOR v. VISHAY INTERTECHNOLOGY 14499
COUNSEL
Maxwell M. Blecher and James Robert Noblin, Los Angeles,
California, and James A. Hennefer, San Francisco, California,
for the plaintiffs-appellants.
14500 PROCTOR v. VISHAY INTERTECHNOLOGY
Peter A. Wald and David M. Friedman, San Francisco, Cali-
fornia, and J. Andrew Heaton, Washington, DC, for the
defendant-appellee Ernst & Young LLP.
Alan R. Friedman and Jonathan M. Wagner, New York, New
York, and Daniel H. Bookin and Dhaivat H. Shah, San Fran-
cisco, California, for the defendants-appellees Vishay Inter-
technology, Inc., et al.
OPINION
BERZON, Circuit Judge:
We consider a set of issues concerning the application of
the Securities Litigation Uniform Standards Act of 1998
(“SLUSA”), Pub. L. No. 105-353, 112 Stat. 3227, codified in
relevant part at 15 U.S.C. § 78bb (amending the Securities
Exchange Act of 1934).1 SLUSA provides for the removal to
federal court and then dismissal of certain securities fraud
cases, while allowing others to go forward in state court. In
this case, the scope of both SLUSA’s coverage and of the so-
called “Delaware carve-out” exception is at stake, as is the
delicate relationship between state and federal courts consid-
ering securities fraud questions.
More specifically, at the time this action was first filed in
state court, plaintiffs Rebecca Proctor, Rex Brooks, John
Donovan, and Robert Needles (collectively, “Proctor”) were
minority shareholders in Siliconix, Inc. (“Siliconix”). They
brought suit against Siliconix’s majority shareholder, Vishay
1
SLUSA amended both the Securities Act of 1933 and the Securities
Exchange Act of 1934 “in substantially identical ways.” Merrill Lynch,
Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 82 n.6 (2006). We rely
on the amendments to the latter, as did the parties and the district court,
but throughout this opinion treat case law interpreting amendments to each
of the statutes as transferable.
PROCTOR v. VISHAY INTERTECHNOLOGY 14501
Intertechnology, Inc., and other related defendants, alleging
that over the course of several years Vishay misappropriated
Siliconix’s assets and breached its fiduciary duties to Sili-
conix and to the other shareholders. Vishay later acquired all
the outstanding minority shares in Siliconix through a short-
form merger, allegedly at a price unfair to Proctor and the
other minority shareholders, and Proctor amended her com-
plaint to include allegations related to this merger.
Proctor’s suit thus began as a relatively straightforward
class action and derivative shareholders’ suit, stating claims
under California law. The filing and settlement of a separate
class action lawsuit against Vishay in the Delaware Court of
Chancery, combined with subsequent changes to Proctor’s
own pleadings, have complicated matters substantially.
Reflecting these developments, the federal district court held
that Proctor’s suit was properly removed to federal court
under SLUSA, but then held that the suit was barred by an
injunction filed against the plaintiffs in the Delaware Court of
Chancery and so could not proceed.
We affirm in part, reverse in part, and remand. We agree
with the district court that Proctor’s suit was subject to
removal under SLUSA and that removal was timely and pro-
cedurally proper. We affirm the district court’s dismissal of
Proctor’s second claim on the alternative ground that it was
precluded by SLUSA. But we reverse the district court’s order
granting Vishay’s motion to dismiss and Ernst & Young’s
motion for summary judgment, because the district court erro-
neously gave effect to the Delaware injunction. Once Proc-
tor’s second claim was dismissed, the district court was
required to remand the case to state court.
BACKGROUND
Siliconix was a publicly owned semiconductor manufac-
turer incorporated in Delaware and headquartered in Santa
Clara, California. Vishay, a manufacturer of electronic com-
14502 PROCTOR v. VISHAY INTERTECHNOLOGY
ponents, became Siliconix’s majority shareholder in 1998,
when Vishay acquired control over 80.4% of Siliconix’s
shares. The remaining 19.6% of Siliconix’s shares were held
by approximately 600 minority shareholders, including
Rebecca Proctor and the other named plaintiffs in this action.
Vishay made a tender offer to the minority shareholders in
2001, but the offer was not supported by a majority of the
minority shareholders. According to the plaintiffs’ Second
Amended Complaint, after the failure of its first tender offer,
Vishay “had strong incentives . . . to drain assets from Sili-
conix,” because so doing would both enrich Vishay and “keep
the price of the remaining 19.6% of Siliconix stock as low as
possible, thus reducing the cost of any future acquisition of
the remaining Siliconix shares by Vishay.”2 The complaint
goes on to allege that Vishay did in fact take various actions
that appropriated or depleted Siliconix’s assets while enhanc-
ing Vishay’s financial position.
Concerned about Vishay’s actions as Siliconix’s majority
shareholder, the plaintiffs filed a complaint in California
Superior Court on August 12, 2002, naming Vishay, its sub-
sidiaries, and its chief executive officer Felix Zandman as
defendants (collectively, “Vishay”). Plaintiffs pleaded two
claims for relief: (1) a derivative shareholder claim on Sili-
conix’s behalf for breach of fiduciary duty and waste of cor-
porate assets, and (2) a class action claim on behalf of two
classes of minority shareholders for breach of fiduciary duty.
The complaint also named Vishay’s auditor, Ernst & Young,
LLP, as a defendant, alleging that after Ernst & Young
became Siliconix’s auditor at Vishay’s initiative, the auditing
firm conspired to hide Vishay’s misappropriations from the
minority shareholders and the SEC.
2
Many of the facts alleged by the plaintiffs are disputed. We have no
occasion to resolve any factual disputes here, but instead take the plain-
tiffs’ allegations as true.
PROCTOR v. VISHAY INTERTECHNOLOGY 14503
After filing and service, proceedings in the California
Superior Court were stalled for over two years while the
plaintiffs sought “to obtain corrective action” via “communi-
cations with Siliconix’s counsel, officers and directors, and
. . . formal requests under the Federal Securities Acts and reg-
ulations to Siliconix.” These attempts failed. In January 2005,
the plaintiffs filed a First Amended Complaint containing
more detailed factual allegations and exhibits regarding
Vishay’s alleged unlawful actions.
In March 2005, Vishay announced a plan to make a tender
offer of 2.64 shares of Vishay common stock for each share
of Siliconix stock, an offer later increased to 2.90 Vishay
shares per Siliconix share. Some of the minority shareholders
believed that the tender offer price was unfairly low. Under
Delaware law, however, if Vishay was able to obtain through
such a tender offer enough shares of Siliconix stock to hold
more than 90% in all, Vishay could execute a “freeze-out” or
“short form” merger, forcing the sale of any remaining shares
to Vishay. See 8 Del. C. § 253.
Shortly after the tender offer announcement, several class-
action shareholder suits against Vishay, later consolidated,
were filed in the Delaware Court of Chancery, all alleging
that the tender offer was unfair and that Vishay had breached
its fiduciary duties to the minority shareholders. See In re Sili-
conix, Inc. Shareholders Litig., C.A. No. 1143-N (Del. Ch.
filed Apr. 18, 2005). The class representatives in the Dela-
ware litigation soon reached an agreement in principle with
Vishay to settle the class action in return for additional disclo-
sures and an increase in the tender offer share price from 2.90
shares of Vishay stock per Siliconix share to 3.075. The par-
ties executed a Memorandum of Understanding with Vishay
late in April 2005, and the final settlement agreement was
filed with the Delaware Court of Chancery in September. The
stipulation of settlement filed with the chancery court speci-
fied that the Delaware class action should be dismissed with
prejudice and provided for the release of liability (“the
14504 PROCTOR v. VISHAY INTERTECHNOLOGY
Release”) as to a broad swath of other existing and potential
claims:
Any known or unknown claims that have been,
could have been, or in the future can or might be
asserted in any court . . . by on or behalf of any
member of the class, whether individual, class,
derivative, representative, legal, equitable, or any
other type or in any other capacity against defen-
dants or any of their . . . affiliates or subsidiaries and
each and all of their respective past, present or future
officers, directors, stockholders, principals . . .
employees, attorneys, financial or investment advi-
sors, insurers, consultants, accountants . . . advisors
or agents, heirs, . . . predecessors, successors and
assigns (collectively, the “Released Persons”) which
have arisen, arise now or hereafter may arise out of
or relate in any manner to the allegations, facts,
events, transactions, acts, occurrences, statements,
representations, omissions or any other matter what-
soever set forth in or otherwise related, directly or
indirectly to (i) the allegations in the complaints in
the Action, (ii) the Tender Offer (including all
amendments and supplements) (iii) the Short-Form
Merger, or (iv) the fiduciary obligations or disclo-
sure duties of any of the Released Persons in connec-
tion with the Tender Offer of Short-Form Merger,
but excluding any claims to enforce the Settlement
or any claims by Siliconix stockholders for appraisal
pursuant to 8 Del. C[ode] § 262, are hereby released,
discharged and settled . . . .
Meanwhile, Vishay’s tender offer closed in May after attract-
ing enough sales of shares to allow the short-form merger,
with the result that each remaining Siliconix share was con-
verted into the right to receive 3.075 Vishay shares.
The Delaware court issued an order and final judgment in
October 2005. The order certified a class under Court of
PROCTOR v. VISHAY INTERTECHNOLOGY 14505
Chancery Rules 23(b)(1) and (b)(2) as “consisting of all
record and beneficial owners of the common stock of Sili-
conix during the period beginning on and including the close
of business on March 3, 2005[,] through and including May
16, 2005 (the date of the consummation of the Merger),
including any and all of their respective successors in interest,
predecessors, [and] representatives . . . .” The same order also
approved the settlement, finding that the notice of the pen-
dency of the class action and proposed settlement had been
“adequate and sufficient” and that the terms of the settlement
were “fair, reasonable, and adequate and in the best interests
of the Class.” Finally, the order adopted the settlement’s
release of liability stipulation language, quoted above, verba-
tim.
Although members of the Delaware class, none of the
named plaintiffs in the California action participated in the
Delaware proceedings or appealed the Delaware judgment.
Instead, the present plaintiffs filed a Second Amended Com-
plaint in their California state court action. In addition to the
original two causes of action, the Second Amended Com-
plaint stated a third, class-action claim for so-called “quasi-
appraisal.”3 This cause of action alleged that the notice of
3
“Quasi-appraisal” is a term of art under Delaware corporations law.
Under Delaware’s short-form merger statute, 8 Delaware Code § 253,
a majority stockholder who owns at least 90% of a company’s
shares can eliminate the minority stockholders [via a short-form
merger pursuant to 8 Del. Code § 253] without notice, vote, or
other traditional indicia of procedural fairness. Absent fraud or
illegality, the exclusive remedy of a minority stockholder is
appraisal [pursuant to 8 Del. Code § 262]. In an appraisal action,
minority stockholders are entitled to the pro rata fair value of
their shares as of the merger date [as assessed by the Chancery
Court, in place of the exchange rate offered by the majority
shareholder in the tender offer].
Gilliland v. Motorola, Inc., 873 A.2d 305, 310 (Del. Ch. 2005) (internal
citations, quotation marks, and footnotes omitted). “[T]he right to an
appraisal,” however, “is a narrow statutory right, and dissenting stockhold-
14506 PROCTOR v. VISHAY INTERTECHNOLOGY
appraisal rights in the Delaware litigation was inadequate and
that the terms of the settlement were unfair. Vishay and Ernst
& Young filed demurrers to the Second Amended Complaint
in early 2006, arguing, among other points, that the Delaware
judgment precluded the plaintiffs’ suit. Although the Califor-
nia court rejected most of the demurrers,4 it sustained Ernst &
Young’s demurrer as to the first and second causes of action
(the derivative shareholder claim and the class action claim
for breach of fiduciary duty) because of inadequate factual
pleadings. The plaintiffs subsequently filed an Amendment to
their Second Amended Complaint, adding specific facts rele-
vant to Ernst & Young’s alleged false statements and conceal-
ment.
Meanwhile, Vishay sought an injunction against the Cali-
fornia litigation from the Delaware Court of Chancery, which
ers must comply strictly with [§ 262’s procedural requirements] in making
their demand.” Id. Delaware law requires that stockholders be given notice
in advance of the merger so they may perfect their appraisal rights. 8 Del.
C. § 262.
Where the statutory appraisal remedy will not make a plaintiff whole—
for example, when a plaintiff has been “wrongfully deprived, even indi-
rectly, of the statutory remedy of appraisal” under 8 Delaware Code § 262
—Delaware courts fashion an equitable remedy of quasi-appraisal. Gilli-
land, 873 A.2d at 311. “Quasi-appraisal originated . . . as a non-statutory
remedy for minority stockholders who, by tendering their shares on a
materially uninformed basis, were prevented from seeking appraisal. The
doctrine was later expanded to include situations in which minority stock-
holders may have been prevented from demanding appraisal due to a fail-
ure to comply fully with the notice provisions of the appraisal statute
itself.” Id. (internal citations omitted); see also Weinberger v. UOP, Inc.,
457 A.2d 701, 714-15 (Del. 1983) (creating the quasi-appraisal remedy).
4
The California judge explained that “because of the nature of the
pleading I am not going to find res judicata bars this action on those
facts.” He then stated, “I think it’s not appropriate for the court to fore-
close this action based upon taking judicial notice of facts [about the Dela-
ware litigation] that are not clear, circumstances that are not clear . . . . So
I’m going to overrule the demurrer . . . [as to] res judicata . . . .”
PROCTOR v. VISHAY INTERTECHNOLOGY 14507
was granted. The Delaware court’s injunction, dated June 13,
2006, ordered “that Plaintiffs, their successors and assigns,
agents, attorneys, and all persons in active concert or partici-
pation with any of them, including but not limited to all mem-
bers of the class certified in the [Delaware] Court’s October
25, 2005 Order and Final Judgment, are permanently enjoined
from prosecuting the action pending in the Superior Court of
California, County of Santa Clara, Proctor v. Vishay Intert-
echnology, Inc., Case No. 1-04-CV-018977.”
Vishay presented the Delaware injunction to the California
court at a case management conference, stating its intention
to file a motion to dismiss if the plaintiffs continued to litigate
their case in spite of the injunction. Ernst & Young took the
position that the Delaware injunction precluded the plaintiffs’
claims against it as well, even though it was not a named
party in the Delaware action. The California judge instructed
plaintiffs to “get [their] papers together [and] decide” whether
to challenge the injunction in the Delaware court, and ordered
the defendants to file their answers or demurrers to the plain-
tiffs’ most recent filing on schedule.5 The judge further noted:
5
The California plaintiffs did not challenge the Delaware injunction in
Delaware court. A challenge to the injunction was filed, however, by Ray
Fitzgerald, a former Siliconix shareholder who is not a named plaintiff in
the California action. Fitzgerald’s letters to the Siliconix board of directors
appear as exhibits attached to the plaintiffs’ Second Amended Complaint,
and he provided the California plaintiffs with an affidavit in support of
their motion in opposition to the defendants’ demurrer to the Second
Amended Complaint.
The Delaware Supreme Court dismissed Fitzgerald’s challenge to the
injunction for lack of standing:
Fitzgerald was not a named plaintiff either in the Delaware
action or in the California action, did not seek to intervene in
either case, and is not a party in any litigation affected by the
Court of Chancery’s order and final judgment. Fitzgerald argues
that he should be permitted to appeal the Court of Chancery’s
final judgement on the sole ground that he is a member of the
plaintiff class affected by the decision below. He makes this
argument despite his lack of objection to the settlement.
14508 PROCTOR v. VISHAY INTERTECHNOLOGY
“I will tell you this. I think it is rather extraordinary for a
court in one state to tell the parties in litigation in this state
how the court . . . ought to . . . rul[e] on the issue of whether
or not settlement in that other state affects this litigation.”
Ernst & Young’s reaction to these developments was to file
a notice of removal of the action to federal district court pur-
suant to SLUSA. SLUSA places limits on plaintiffs’ ability to
litigate “covered class action[s],” which it defines as private,
state-law-based suits involving a “covered security” (that is,
a nationally traded security such as Siliconix was at the time)
“in which damages are sought on behalf of more than 50 per-
sons or prospective class members.” 15 U.S.C.
§§ 78bb(f)(5)(B)(i)(I), (E). See generally Madden v. Cowen &
Co., 576 F.3d 957, 963-65 (9th Cir. 2009) (explaining the pur-
pose and impact of SLUSA). If such a “covered class action”
contains any allegation of “a misrepresentation or omission of
a material fact” or the use of “any manipulative or deceptive
device . . . in connection with the purchase or sale of a cov-
ered security,” 15 U.S.C. § 78bb(f)(1), it is removable to fed-
eral court and, once removed, must be dismissed,
id.§§ 78bb(f)(1)-(2). See generally Madden, 576 F.3d at
964-65 (discussing SLUSA’s removal and preclusion provi-
sions).
Congress’s purpose in enacting SLUSA was to channel
securities fraud litigation away from state-law class actions
and into the federal courts under the Private Securities Litiga-
In Delaware, a nonparty to an action generally has no standing
to take an appeal to the Delaware Supreme Court . . . . There are
no circumstances in this case that justify departing from this set-
tled principle of Delaware law.
The defendants urge us to defer to language appearing elsewhere in the
Delaware Supreme Court’s order as presuming the validity of the injunc-
tion. We see no reason to consider that language, as, according to its own
ruling, the Delaware Supreme Court had no jurisdiction over the appeal.
PROCTOR v. VISHAY INTERTECHNOLOGY 14509
tion Reform Act of 1995, 109 Stat. 737 (codified at 15 U.S.C.
§§ 77z-1 and 78u-4), which “requir[es] plaintiffs who bring
private securities fraud actions in federal court to surmount a
number of procedural hurdles” not applicable under state law.
Madden, 576 F.3d at 964. There are, however, statutory
exceptions to SLUSA preclusion, one of which is known as
the “Delaware carve-out,”6 which allow certain actions other-
wise coming within SLUSA to go forward. See 15 U.S.C.
§ 78bb(f)(3)(A); see also Madden, 576 F.3d at 962-63; infra,
Part A(1). The In re Siliconix litigation proceeded in the Dela-
ware Chancery Court under the Delaware carve-out. The dis-
trict court here held that Proctor’s action, in contrast, does not
fall within the Delaware carve-out.
Having so decided, the district court denied the plaintiffs’
motion to remand to state court and accepted jurisdiction over
the case, finding that removal was proper under 28 U.S.C.
§§ 1331, 1441(a), and 1446(b). Quoting Metropolitan Life
Insurance Company v. Taylor, 481 U.S. 58, 63-64 (1987), it
noted that “SLUSA completely preempts covered state law
claims,” thereby creating a basis for removal jurisdiction by
“ ‘recharacterizing’ the state law claim as a federal claim for
purposes of the ‘well pleaded complaint’ rule.”
The district court then dismissed the action as to Ernst &
Young under Fed. R. Civ. P. 12(b)(6) and granted summary
judgment as to Vishay under Fed. R. Civ. P. 56. The court
justified both rulings as compelled by the Delaware injunction
and the principle of “federal-state comity”7 :
6
Specifically, SLUSA’s “Delaware carve-out” provision, 15 U.S.C.
§ 78bb(f)(3)(A)(i), preserves any otherwise “covered class action . . . that
is based upon the statutory or common law of the State in which the issuer
is incorporated (in the case of a corporation) or organized (in the case of
any other entity).”
7
The district court therefore had no need to weigh the factual allegations
in Proctor’s complaint to consider Vishay’s motion for summary judg-
ment. We therefore assume, as have the parties, the facts as alleged in the
complaint.
14510 PROCTOR v. VISHAY INTERTECHNOLOGY
While Plaintiffs correctly state the general rule that
a state court may not enjoin proceedings in a federal
court, the injunction at issue here “encompasses,
among other claims, all the claims asserted by the
representative plaintiffs in Proctor v. Vishay Intert-
echnology, Inc., Case No. 1-04-CV-018977,” and
“plaintiffs settled and released, among other claims,
all the claims asserted in [that action] . . . .” The fact
that the case in question has been removed to this
Court because some of the claims asserted are pre-
empted by SLUSA does not entitle Plaintiffs to
ignore the injunction any more than they were enti-
tled to do so while the matter was pending before the
[California] Superior Court. As a matter of federal-
state comity, this Court will not entertain arguments
regarding the jurisdiction of the Delaware Chancery
Court unless and until Plaintiffs first have sought
relief from the injunction in Delaware. Accordingly,
the instant action will be dismissed. In order to per-
mit Plaintiffs to initiate appropriate proceedings in
Delaware, the dismissal shall be effective ninety (90)
days after the date of this order.
(internal citation omitted). The plaintiffs did not initiate pro-
ceedings in Delaware court, and the district court’s dismissal
became effective.
The plaintiffs now appeal the district court’s denial of their
motion to remand, its dismissal of their claims against Ernst
& Young, and its grant of summary judgment for Vishay. We
review a district court’s order denying a motion to remand for
lack of removal jurisdiction de novo. United Computer Sys.,
Inc. v. AT & T Corp., 298 F.3d 756, 760 (9th Cir. 2002). We
also review de novo a district court’s dismissal, Allen v. Gold
Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006), and
grant of summary judgment, Avista Corp., Inc. v. Wolfe, 549
F.3d 1239, 1246 (9th Cir. 2008).
PROCTOR v. VISHAY INTERTECHNOLOGY 14511
ANALYSIS
A. The Remand Motion
Proctor first contends that the district court erred in denying
the motion to remand the case to state court at the outset. For
the reasons below, we affirm the district court.
1. Removability
Proctor now concedes that this lawsuit was SLUSA-
removable, but challenges the district court’s denial of her
remand motion solely on the ground that there were proce-
dural defects in the defendants’ removal notice. Parties “can-
not waive . . . a court’s lack of subject matter jurisdiction.”
Stock West, Inc. v. Confederated Tribes of the Colville Reser-
vation, 873 F.2d 1221, 1228 (9th Cir. 1989) (emphasis omit-
ted). Regardless of the parties’ concessions, therefore, we
must satisfy ourselves that this lawsuit was in fact removable
under SLUSA.
[1] We begin by clarifying the jurisdictional basis of
SLUSA-removable cases. The district court reasoned that
SLUSA completely preempted the state law causes of action,
thereby approving of Ernst & Young’s removal on the basis
of 28 U.S.C. §§ 1331 and 1441. “A case ‘arises under’ federal
law within the meaning of § 1331 . . . if ‘a well-pleaded com-
plaint establishes either that federal law creates the cause of
action or that the plaintiff’s right to relief necessarily depends
on resolution of a substantial question of federal law.’ ”
Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S.
677, 689-90 (2006) (quoting Franchise Tax Bd. of Cal. v.
Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1,
27-28 (1983) (brackets omitted)). One exception to the statu-
tory “well-pleaded complaint” rule is when Congress “so
completely pre-empt[s] a particular area that any civil com-
plaint raising this select group of claims is necessarily federal
in character.” Metro. Life Ins. Co., 481 U.S. at 63-64; see also
14512 PROCTOR v. VISHAY INTERTECHNOLOGY
Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists,
390 U.S. 557, 560 (1968).
This court had suggested that SLUSA completely preempts
state law claims and therefore falls under the complete pre-
emption exception to the well-pleaded complaint rule of 28
U.S.C. § 1331. See, e.g., Falkowski v. Imation Corp., 309
F.3d 1123, 1127-28 (9th Cir. 2002) (recognizing that SLUSA
provides for removal but explaining the basis for federal sub-
ject matter jurisdiction as SLUSA’s complete preemption of
state claims); Patenaude v. Equitable Life Assurance Soc’y of
U.S., 290 F.3d 1020, 1023 (9th Cir. 2002) (noting that
because of the well-pleaded complaint rule, a federal defense
will not ordinarily create subject matter jurisdiction, and that
“the district court had subject matter jurisdiction over Paten-
aude’s complaint if, and only if, SLUSA completely pre-
empted the state law claims . . . assert[ed]”).
[2] After these cases were decided, however, the Supreme
Court made clear in Kircher v. Putnam Funds Trust, 547 U.S.
633, 636 n.1 (2006), that SLUSA “does not itself displace
state law with federal law but makes some state-law claims
nonactionable through the class action device in federal as
well as state court.” In other words, SLUSA does not provide
a federal rule of decision in lieu of a state one, but instead
provides a federal defense precluding certain state law actions
from going forward. Thus, what we termed complete preemp-
tion in pre-Kircher cases,8 by which we are no longer bound
on this issue given the Supreme Court’s more recent pro-
nouncement, see Miller v. Gammie, 335 F.3d 889, 899-900
(9th Cir. 2003) (en banc), is actually a federal preclusion
8
In U.S. Mortgage, Inc. v. Saxton, 494 F.3d 833, 842 (9th Cir. 2007),
decided after Kircher, we again described SLUSA “as an express excep-
tion to the well-pleaded complaint rule.” However, Saxton did not recog-
nize or cite Kircher, and it relied on pre-Kircher case law for this
proposition.
PROCTOR v. VISHAY INTERTECHNOLOGY 14513
defense, and would not fall under the complete preemption
exception to § 1331’s well-pleaded complaint rule.9
We need not consider whether § 1331 applies on some
basis other than complete preemption, as SLUSA itself pro-
vides a basis for federal jurisdiction. SLUSA creates a federal
defense to certain covered class actions, prohibiting those
actions from going forward in state or federal court. 15 U.S.C.
§ 78bb(f)(1). It separately provides for removal jurisdiction
9
Some courts have alternatively determined that SLUSA, while not
completely displacing state law, nonetheless results in complete preemp-
tion, and so is an exception to the well-pleaded complaint rule ordinarily
determinative of “arising under” jurisdiction because “Congress has
expressly provided that a state-law claim be removed to federal court.”
Winne v. Equitable Life Assurance Soc’y of U.S., 315 F. Supp. 2d 404, 409
(S.D.N.Y. 2003); see also Spielman v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 332 F.3d 116, 131 & n.1 (2d Cir. 2003) (Newman, J., concur-
ring) (noting this unique category of “complete preemption” in the context
of SLUSA jurisdiction).
This assertion appears to be based on Beneficial National Bank v.
Anderson, 539 U.S. 1, 8 (2003), in which the Supreme Court stated that
“a state claim may be removed to federal court [on preemption grounds]
in only two circumstances—when Congress expressly so provides . . . or
when a federal statute wholly displaces the state-law cause of action
through complete preemption.” Whatever the outer bounds of this first cat-
egory of cases may be, we very much doubt that SLUSA falls within it.
El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484 n.6 (1999),
from which this category derives, held that the Price-Anderson Act’s
structure, which provided for district court original jurisdiction over and
removal of public liability claims, “resemble[d] what [the Court] ha[d]
spoken of as complete preemption doctrine.” Id. (internal quotation marks
omitted). But the Price-Anderson Act included a provision expressly stat-
ing that public liability actions that were removable “shall be deemed to
be an action arising under [the Act], and the substantive rules for decision
in such action shall be derived from” state law. 42 U.S.C. § 2014(hh)
(emphasis added). SLUSA includes neither anything resembling the El
Paso statutory provision converting state claims into federal ones nor the
explicit reference to “arising under” jurisdiction. We therefore do not see
how the unusual form of congressionally determined “arising under” juris-
diction is applicable here.
14514 PROCTOR v. VISHAY INTERTECHNOLOGY
over those actions. Id. § 78bb(f)(2). Congressional provision
of removal jurisdiction apart from 28 U.S.C. § 1331 is
entirely permissible, so long as the jurisdiction does not
exceed the bounds of Article III and Congress has in fact so
provided by statute. See Verlinden B.V. v. Cent. Bank of Nige-
ria, 461 U.S. 480, 497-98 (1983). SLUSA meets both require-
ments.
[3] SLUSA’s removal provision does not exceed the
bounds of Article III federal question jurisdiction, which is
broader than § 1331 “arising under” jurisdiction. See id. at
495. While the Act’s removal provision, 15 U.S.C.
§ 78bb(f)(2),10 alone is not sufficient to confer jurisdiction
within constitutional bounds, see Verlinden, 461 U.S. at 496,
the separate provision for a preclusion defense requiring the
dismissal of covered class actions, id. § 78bb(f)(1),11 creates
a federal question hook on which removal can hang, see Ver-
linden, 461 U.S. at 496-97. See also Mesa v. California, 489
U.S. 121, 136 (1989) (reaffirming, in a case involving a statu-
tory right of removal to federal court by federal officers, that
an assertion of a federal defense in a removal petition is suffi-
cient for Article III purposes to support jurisdiction). As
SLUSA’s removal provision makes clear, Congress intended
to permit federal court adjudication of such claims. Section
78bb(f)(2) is therefore constitutionally sufficient to support
10
The removal provision, 15 U.S.C. § 78bb(f)(2), states:
Any covered class action brought in any State court involving a
covered security, as set forth in paragraph (1), shall be removable
to the Federal district court . . . .
11
The preclusion provision, 15 U.S.C. § 78bb(f)(1), provides:
No covered class action based upon the statutory or common law
of any State or subdivision thereof may be maintained in any
State or Federal court by any private party alleging a misrepre-
sentation or omission of a material fact in connection with the
purchase or sale of a covered security; or that the defendant used
or employed any manipulative or deceptive device or contrivance
in connection with the purchase or sale of a covered security.
PROCTOR v. VISHAY INTERTECHNOLOGY 14515
removal jurisdiction, and no recourse to another jurisdictional
statute—such as 28 U.S.C. § 1331—is necessary.
Having determined that SLUSA alone could properly con-
fer jurisdiction over this case if a claim is covered by SLUSA,
we next analyze the claims. As currently pleaded, the com-
plaint contains three claims: (1) a derivative claim on Sili-
conix’s behalf for breach of fiduciary duty and waste of
corporate assets; (2) a class action claim on behalf of the puta-
tive class of minority shareholders for breach of fiduciary
duty; and (3) a class action claim on behalf of the putative
class of minority shareholders for quasi-appraisal under 8
Delaware Code § 262. The plaintiffs initially brought all three
claims against all the defendants but later withdrew claim (3)
with regard to Ernst & Young.
[4] To be removable under SLUSA, a complaint must con-
tain at least one precluded claim. See 15 U.S.C. § 78bb(f)(2)
(providing for the removal of “[a]ny covered class action
brought in any State court involving a covered security”);
Falkowski, 309 F.3d at 1131 (allowing the removal of an
entire case where some but not all of the plaintiff’s claims
were precluded by SLUSA). On the basis of this removal, the
district court could have, at least temporarily, exercised juris-
diction over any non-precluded claims as well, as SLUSA
provides for the removal of “[a]ny covered class action,”
§ 78bb(f)(2), not just individual claims.12
12
Because we conclude that the district court had removal jurisdiction
but do not decide whether it would have had original jurisdiction over the
case under 28 U.S.C. § 1331, we do not decide whether the district court
could have relied solely on the supplemental jurisdiction provided by 28
U.S.C. § 1367, which applies only to “civil action[s] of which the district
courts have original jurisdiction.” (emphasis added). See also Exxon
Mobil Corp. v. Allapattah Servs., 545 U.S. 546, 558 (2005) (noting that
“[s]ection 1367(a) is a broad grant of supplemental jurisdiction over other
claims within the same case or controversy, as long as the action is one
in which the district courts would have original jurisdiction”).
14516 PROCTOR v. VISHAY INTERTECHNOLOGY
[5] Proctor’s lawsuit contains one precluded claim: claim
(2), the class action claim for breach of fiduciary duty. This
claim meets all four of SLUSA’s threshold requirements:
First, it is brought in the context of a “covered class action,”
in that the plaintiffs seek a “damages [remedy] . . . on behalf
of more than 50 persons or prospective class members.” 15
U.S.C. § 78bb(f)(5)(B)(i)(I). Second, it is “based upon the
statutory or common law of [a] State,” California. Id.
§ 78bb(f)(1). Third, the Siliconix minority shares at issue are
“covered securit[ies],” id. § 78bb(f)(5)(E), because they were
nationally traded and listed on a national securities exchange,
id. § 77r(b), “at the time during which it is alleged that the
misrepresentation, omission, or manipulative or deceptive
conduct occurred,” id. § 78bb(f)(5)(E). Fourth, and finally,
the claim rests on allegations of “misrepresentation[s] or
omission[s] of a material fact in connection with the purchase
or sale of a covered security,”13 id. § 78bb(f)(1)(A): the alle-
gation that Ernst & Young “made false[ ] or intentionally
13
Misrepresentation need not be a specific element of the claim to fall
within the Act’s preclusion. See Segal v. Fifth Third Bank, ___ F.3d ___,
2009 WL 2958438, at *2, *4 (6th Cir. Sept. 17, 2009) (noting that SLUSA
does not require that “the complaint make[ ] material or dependent allega-
tions of misrepresentation” and affirming the dismissal of the plaintiff’s
claims where covered allegations were incorporated by reference into each
count (internal quotation marks omitted)); Rowinski v. Salomon Smith
Barney Inc., 398 F.3d 294, 300 (3d Cir. 2005) (“Where, as here, allega-
tions of a material misrepresentation serve as the factual predicate of a
state law claim, the misrepresentation prong is satisfied under SLUSA.”
(emphasis added)); Miller v. Nationwide Life Ins. Co., 391 F.3d 698,
701-02 (5th Cir. 2004) (“[T]he only question before us is whether Miller’s
breach of contract claim alleged that Nationwide made untrue statements
. . . . Miller’s complaint clearly does include such allegations . . . . All of
these charges are incorporated by reference into Miller’s breach of con-
tract claim [specifically] . . . . We thus conclude that Miller’s state law
claim falls within the prohibition of [SLUSA].); Prof’l Mgmt. Assocs., Inc.
Employees’ Profit Sharing Plan v. KPMG LLP, 335 F.3d 800, 802-03 (8th
Cir. 2003), cert. denied, 540 U.S. 1162 (2004) (holding that a negligence
claim, which as a legal matter does not require allegations of fraud, none-
theless triggered SLUSA because the complaint incorporated into the neg-
ligence claim the requisite allegations of misrepresentation).
PROCTOR v. VISHAY INTERTECHNOLOGY 14517
incomplete and misleading” statements in several documents
directed at shareholders and at shareholders’ meetings con-
cerning Vishay’s actions with regard to and impact on Sili-
conix “so that Vishay could acquire the stock of Siliconix’s
minority shareholders below the stock’s true value.”
As to this fourth requirement, we note that Ernst &
Young’s alleged misrepresentations and omissions were made
before the announcement of the tender offer and merger. Nev-
ertheless, based on the plaintiffs’ allegations alone,14 these
misrepresentations and omissions were made specifically for
the purpose of masking Vishay’s looting of Siliconix and its
deceptive inflation of the relative value of Vishay’s own
stock, thereby inducing the minority shareholders to sell their
Siliconix stock to Vishay at a disadvantageous exchange rate
once a tender offer was made. These allegations establish a
sufficiently close connection between the misrepresentations
and the sale of Siliconix stock to satisfy SLUSA’s “in connec-
tion with” requirement. See Falkowski, 309 F.3d at 1131
(holding that “[t]he claim that defendant concealed the
impending accounting write-off sufficiently alleges fraud ‘in
connection with’ a contract to sell Imation shares because it
involves a misrepresentation about the value of the options”);
see also Instituto de Prevision Militar v. Merrill Lynch, 546
F.3d 1340, 1348-49 (11th Cir. 2008); Prof’l Mgmt. Assocs.,
Inc., 335 F.3d at 802-03.15
14
SLUSA “authorizes removal and dismissal based on the allegations in
the complaint and does not require any additional evidentiary showing
from either party.” U.S. Mortgage, Inc. v. Saxton, 494 F.3d 833, 842 (9th
Cir. 2007).
15
The plaintiffs’ claim (2) would be saved from preclusion if it fit within
15 U.S.C. § 78bb(f)(3)(A), the “Delaware carve-out,” discussed infra. But
claim (2) plainly does not fit within the Delaware carve-out because it
states a violation of California law—not Delaware law, where Siliconix
was incorporated—and so is not “based upon the . . . law of the State in
which the issuer is incorporated.” Id. § 78bb(f)(3)(A)(i).
14518 PROCTOR v. VISHAY INTERTECHNOLOGY
Moreover, these allegations are sufficiently pleaded to
invoke SLUSA preclusion of claim (2) against Ernst & Young
and Vishay.16 While plaintiffs allege only that Ernst & Young
directly made misrepresentations and omissions, some of the
alleged misrepresentations are in documents issued on behalf
of Vishay and the Amendment to the Second Amended Com-
plaint clearly asserts that Ernst & Young’s misrepresentations
were “among the overt acts, or omissions, in which Ernst &
Young engaged in furtherance of its conspiracy with, and in
aiding and abetting, Vishay and the other defendants.” Thus,
although claim (2) against Vishay does not state that Vishay
itself made misrepresentations or omissions, the plaintiffs’
pleadings implicate Vishay as responsible for Ernst &
Young’s acts and so warrant dismissal of this claim against all
defendants.
Proctor’s claims (1) and (3), in contrast, do not come within
SLUSA’s preclusive scope. Claim (1), a shareholder deriva-
tive action alleging breach of a fiduciary duty, is not a class
claim and so does not satisfy the first requirement for SLUSA
preclusion. See 15 U.S.C. § 78bb(f)(5)(B)(i)(I). Claim (3),
alleging inadequacy of the notice given the minority share-
holders before the merger, was not affected by Proctor’s
Amendment to the SAC, which expressly applied only to
claims (1) and (2), and so, lacking any reference to material
omissions and misrepresentation, does not satisfy the fourth
requirement for preclusion. 15 U.S.C. § 78bb(f)(1)(A). As
already noted, however, only one claim in a complaint needs
to be precluded under SLUSA to make removal to federal
court of the entire action proper.
[6] We therefore hold that the district court correctly
assumed removal jurisdiction over the plaintiffs’ lawsuit
under SLUSA, and now turn to the other grounds upon which
Proctor challenges denial of the motion to remand the case.
16
Again, we use “Vishay” to refer to Vishay Intertechnology, Inc, and
all other defendants. See supra Op. at 14502.
PROCTOR v. VISHAY INTERTECHNOLOGY 14519
2. Timeliness
[7] Under 28 U.S.C. § 1446(b), a defendant sued in state
court must file a notice of removal “within thirty days after
receipt by the defendant . . . of a copy of an amended plead-
ing, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable.” Ernst & Young’s notice of removal was filed on
June 30, 2006. Proctor suggests that the thirty-day clock for
removal began to run when the First or Second Amended
Complaint was served, making Ernst & Young’s removal
notice untimely. Not so.
[8] Again, the sole basis for federal jurisdiction in this case
is SLUSA. It was not ascertainable from either the First or the
Second Amended Complaint that the case came within
SLUSA’s preclusive scope.
The First Amended Complaint contains allegations of loot-
ing, not allegations of misrepresentations made in connection
with the purchase or sale of a security. Indeed, the 2005 ten-
der offer and merger did not happen until after the First
Amended Complaint was filed, so the allegations therein
could not, at the time of service, have put the defendants on
notice of any alleged misrepresentations made “in connection
with the purchase or sale” of Siliconix stock. 15 U.S.C.
§ 78bb(f)(1)(A).
Nor would the Second Amended Complaint have supported
removal under SLUSA. The only allegation in that complaint
that could be construed as an allegation of material misrepre-
sentation is the assertion that in 2004, Ernst & Young “obvi-
ously knew” that Siliconix was guaranteeing Vishay’s line of
credit and that “Ernst & Young’s allegiance to Vishay . . .
affected its good judgment.” But the Second Amended Com-
plaint does not specifically allege that Ernst & Young omitted
or represented any material information “in connection with”
the 2005 tender offer and merger, and so, without amendment,
14520 PROCTOR v. VISHAY INTERTECHNOLOGY
that complaint would not have supported removal under
SLUSA. In fact, as the district court noted, “the state court . . .
sustained [Ernst & Young’s] demurrer[ ] [to the Second
Amended Complaint] on the basis that Plaintiffs had set forth
insufficient facts to link Ernst & Young to [their claim for
breach of fiduciary duty].”
In short, the basis for federal removal under SLUSA was
not ascertainable “on the face of” either the First or Second
Amended Complaint. See Harris v. Bankers Life & Cas. Co.,
425 F.3d 689, 695 (9th Cir. 2005). That the defendants might
have guessed that the plaintiffs would amend their pleadings
to put forward sufficient facts to support removal is not suffi-
cient to start the thirty-day clock. “[W]e don’t charge defen-
dants with notice of removability until they’ve received a
paper that gives them enough information to remove.” Dur-
ham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir.
2006).
[9] The Amendment to the Second Amended Complaint,
filed and served on the defendants on May 31, 2006, did pro-
vide that information. The Amendment contained specific
allegations that Ernst & Young “concealed” or “made false[ ]
or intentionally incomplete and misleading” statements in var-
ious reports and filings, and at shareholders’ meetings, con-
cerning Vishay’s misappropriation of Siliconix’s software
systems and sales subsidiaries, Vishay’s impact on Siliconix’s
indebtedness and borrowing capabilities, and Vishay’s other
actions affecting Siliconix’s financial position, “so that
Vishay could acquire the stock of Siliconix’s minority share-
holders below the stock’s true value.” These allegations of
false statements or omissions “in connection with the pur-
chase or sale” of Siliconix stock met the SLUSA requirements
for federal jurisdiction. Following the rule laid out in Harris,
the start-date for purposes of 28 U.S.C. § 1446(b)’s thirty-day
clock was the date of service of the Amendment to the Second
Amended Complaint. See Harris, 425 F.3d at 695. Ernst &
Young’s removal notice was filed within thirty days of that
PROCTOR v. VISHAY INTERTECHNOLOGY 14521
date. The district court’s holding that the removal notice was
timely was therefore correct.
3. Joinder
Plaintiffs next argue that Ernst & Young’s notice of
removal was procedurally improper because Ernst & Young’s
co-defendant Vishay did not provide timely written notice of
its joinder. In a case involving multiple defendants, “[a]ll
defendants must join in a removal petition.” Hewitt v. City of
Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986). Ernst &
Young’s notice of removal represented that “[a]ll defendants
consent to the removal of this action” (emphasis added), but
Vishay itself did not submit a written notice stating its joinder
until September 15, 2006, well outside the thirty-day window
for removal.
[10] The circuits are divided as to what form a co-
defendant’s joinder in removal must take. We have not yet
decided the matter. The Sixth Circuit requires only that “at
least one attorney of record” sign the notice and certify that
the remaining defendants consent to removal; it does not
insist that each defendant submit written notice of such con-
sent. See Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195,
201-02 (6th Cir. 2004). In contrast, the Fifth, Seventh, and
Eighth Circuits have adopted the more demanding require-
ment that each co-defendant must submit a timely, written
notice of consent to joinder. See Getty Oil Corp. v. Ins. Co.
of N. Am., 841 F.2d 1254, 1262 n.11 (5th Cir. 1988); Roe v.
O’Donohue, 38 F.3d 298, 301 (7th Cir. 1994), abrogated on
other grounds by Murphy Bros., Inc. v. Michetti Pipe String-
ing, Inc., 526 U.S. 344 (1999); Pritchett v. Cottrell, Inc., 512
F.3d 1057, 1062 (8th Cir. 2008).
[11] We adopt the Sixth Circuit’s position as fully suffi-
cient to implement the unanimous joinder rule. The so-called
“rule of unanimity,” announced by the Supreme Court in Chi-
cago, Rock Island, & Pacific Railway Co. v. Martin, 178 U.S.
14522 PROCTOR v. VISHAY INTERTECHNOLOGY
245, 248 (1900), as an interpretation of a predecessor removal
statute, merely says that “all the defendants must join in the
application” for removal. See also Lapides v. Bd. of Regents
of Univ. Sys. of Ga., 535 U.S. 613, 620 (2002) (citing Chicago
only for the proposition that “removal requires the consent of
all defendants”). Chicago does not specify how defendants
must join in removal. Nor does any federal rule or statute spe-
cifically prescribe a particular manner in which co-
defendants’ joinder must be expressed. In the absence of any
rule governing joinder in removal, we turn to the general prin-
ciples that govern procedures for removal and for attorney
representations to district courts generally. Under 28 U.S.C.
§ 1446(a), “[a] defendant or defendants desiring to remove
any civil action” must file a “notice of removal signed pursu-
ant to Rule 11 of the Federal Rules of Civil Procedure.” Rule
11, in turn, provides that “[e]very pleading, written motion,
and other paper must be signed by at least one attorney of
record,” Fed. R. Civ. P. 11(a), and that “[b]y presenting to the
court a pleading, written motion, or other paper—whether by
signing, filing, submitting, or later advocating it—an attorney
. . . certifies that . . . the factual contentions [therein] have evi-
dentiary support . . . .” Id. 11(b).
[12] Applying these general principles, we conclude that
the filing of a notice of removal can be effective without indi-
vidual consent documents on behalf of each defendant. One
defendant’s timely removal notice containing an averment of
the other defendants’ consent and signed by an attorney of
record is sufficient. Ernst & Young submitted such an aver-
ment under threat of sanctions pursuant to Rule 11; the other
co-defendants were notified of the removal notice and had an
opportunity to object to it. These two considerations—the
availability of sanctions and of objection—mitigate concerns
that one defendant might falsely state the other defendants’
consent, or that one defendant might game the system by
silently allowing another to remove and, if the federal forum
proves disadvantageous, belatedly object that he had not con-
sented.
PROCTOR v. VISHAY INTERTECHNOLOGY 14523
We emphasize that Chicago’s requirement that all co-
defendants “join” in requesting removal remains binding.
Like the Sixth Circuit, however, we interpret that requirement
as met if, as here, one defendant avers that all defendants con-
sent to removal. See Harper, 392 F.3d at 201-02.
[13] As the removal notice was timely and procedurally
proper, the district court properly denied Proctor’s motion to
remand.
B. The Merits
Having established that this case is properly in federal
court, we now address the merits—or more precisely, whether
this case should have been dismissed in its entirety, as it was,
because of the Delaware injunction or for another reason. We
affirm the district court’s dismissal of Proctor’s claim (2), on
which SLUSA removal was predicated, as it should have been
dismissed as precluded by SLUSA. We reverse the district
court’s dismissal of claims (1) and (3): Once Proctor’s second
claim was dismissed, the district court was required by
SLUSA to remand the remaining claims to state court. The
Delaware injunction did not bind the district court.
1. Preclusion under SLUSA
The district court dismissed plaintiffs’ claims on the basis
of “federal-state comity.” On appeal, however, we may affirm
the district court’s holding on any ground raised below and
fairly supported by the record. See Washington v. Confed.
Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 477
n.20 (1979) (stating that a prevailing party is “free to defend
its judgment on any ground properly raised below whether or
not that ground was relied upon, rejected, or even considered
by the District Court”); Atel Fin. Corp. v. Quaker Coal Co.,
321 F.3d 924, 926 (9th Cir. 2003) (per curiam) (providing that
this court may affirm on any ground fairly supported by the
14524 PROCTOR v. VISHAY INTERTECHNOLOGY
record). We therefore begin by considering which of Proctor’s
claims, if any, are subject to dismissal by virtue of SLUSA.
[14] As discussed above, one of Proctor’s claims—claim
(2), the class action claim for breach of fiduciary duty—
qualifies under SLUSA as a precluded class action claim
alleging “misrepresentation[s] or omission[s] of . . . material
fact in connection with the purchase or sale of a covered
security.” 15 U.S.C. § 78bb(f)(1)(A). Although the district
court did not rely on SLUSA to dismiss this claim, we do so
now. SLUSA permits nothing less, because “[n]o covered
class action [that alleges a misrepresentation of material fact
in connection with the sale of a covered security] based upon
the . . . law of any State . . . may be maintained in . . . Federal
court.” Id. § 78bb(f)(1).
That leaves claim (1), the derivative claim on Siliconix’s
behalf for breach of fiduciary duty against Vishay and Ernst
& Young, and claim (3), for quasi-appraisal, against Vishay
only. As explained, these claims were not themselves subject
to removal and preclusion under SLUSA, but were removed
along with claim (2) and came within the federal court’s juris-
diction authorized by SLUSA.
[15] SLUSA unquestionably requires the dismissal of the
precluded claim (2), but does it require the dismissal of the
other, non-precluded claims as well? Our decision in Fal-
kowski assumed that it does not,17 but “unstated assumptions
17
Falkowski affirmed the district court’s holding that the plaintiffs’
fraud claims were precluded under SLUSA and had to be dismissed, but
reversed the district court’s dismissal of the plaintiffs’ “garden variety
state law claims” for breach of contract, which were not covered class
actions under SLUSA and which it held should not have been dismissed
on a 12(b)(6) motion. 309 F.3d at 1131. By doing so, Falkowski necessar-
ily assumed that the district court had jurisdiction to entertain claims other
than the precluded fraud claims. Falkowski did not, however, acknowledge
or discuss the issue specifically raised before us, namely, whether SLUSA
preclusion applies to an entire action.
PROCTOR v. VISHAY INTERTECHNOLOGY 14525
on non-litigated issues are not precedential holdings binding
future decisions,” Sakamoto v. Duty Free Shoppers, Ltd., 764
F.2d 1285, 1288 (9th Cir. 1985), and our subsequent decision
in Saxton treated the issue as an unsettled one. See Saxton,
494 F.3d at 846. Other courts of appeals have directly consid-
ered the question and held that dismissal of the entire com-
plaint is not required. See In re Lord Abbett Mut. Funds Fee
Litig., 553 F.3d 248, 255-56 (3d Cir. 2009) (considering com-
plaint with SLUSA-precluded state law claims and non-
precluded federal claims); Dabit v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 395 F.3d 25, 47 (2d Cir. 2005) (“Dabit
I”), rev’d on other grounds by 547 U.S. 71 (2006) (“Dabit II”)
(considering complaint with SLUSA-precluded and non-
SLUSA precluded state law claims).18 Today we, too, clarify
that SLUSA does not require the dismissal of non-precluded
claims along with precluded claims.
Looking first to the statutory language, we find no indica-
tion that the dismissal of the entire action is required. True,
SLUSA’s preclusion provision speaks of “actions” and “law-
suits,” not of individual claims. See 15 U.S.C. § 78bb(f)(1)
(“No covered class action . . . may be maintained . . . .” ); id.
§ 78bb(f)(5)(B) (defining “covered class action” as “any sin-
gle lawsuit” or “group of lawsuits”). But Congress’s use of
the term “action” in SLUSA is not alone determinative as to
whether the entire case must be dismissed based on the pres-
ence of one precluded claim. The Supreme Court made this
much clear in the context of the Prison Litigation Reform
Act’s 42 U.S.C. § 1997e(a), which provides that “[n]o action
shall be brought with respect to prison conditions . . . until
such administrative remedies as are available are exhausted.”
See Jones v. Bock, 549 U.S. 199, 221 (2007). In doing so, it
stated that
18
The Eleventh Circuit has affirmed, without discussion of this point,
the dismissal of an entire action where one claim was SLUSA-precluded.
In that case, the individual claims that were not precluded by SLUSA were
dismissed without prejudice. See Behlen v. Merrill Lynch, 311 F.3d 1087,
1095-96 (11th Cir. 2002).
14526 PROCTOR v. VISHAY INTERTECHNOLOGY
As a general matter, if a complaint contains both
good and bad claims, the court proceeds with the
good and leaves the bad. Only the bad claims are
dismissed; the complaint as a whole is not. If Con-
gress meant to depart from this norm, we would
expect some indication of that, and we find none.
Id. (internal quotation marks and brackets omitted); see also
In re Lord Abbett, 553 F.3d at 256-57 (applying this PLRA
example in the context of SLUSA); LaSala v. UBS, AG, 510
F. Supp. 2d 213, 242 (S.D.N.Y. 2007) (stating that Jones’s
language “about norms for interpreting statutory language
concerning dismissal of a complaint reinforce[d] [the district
court’s] interpretation of SLUSA” that claims must be consid-
ered separately (internal quotation marks omitted)).
Moreover, once a precluded SLUSA claim is dismissed, the
complaint no longer includes a claim that rests on an allega-
tion of misrepresentation. Requiring the federal court to
refrain from dismissing the non-precluded claims does not
offend SLUSA’s command that “[n]o covered class action . . .
may be maintained in any State or Federal court . . . [if it
alleges] a misrepresentation or omission of a material fact
. . . .” 15 U.S.C. § 78bb(f)(1) (emphasis added). By using the
word “maintained” rather than “filed,” the language focuses
on the content of the action as it goes forward, not as it began,
and so does not require that a federal court dismiss an entire
action where only some claims are precluded by SLUSA. Dis-
missal of precluded claims while allowing the remainder of
the case to remain pending thus fully comports with the statu-
tory language.
Moreover, the purposes of SLUSA would not be served by
the dismissal of entire actions. As the House Report made
clear, among SLUSA’s purposes are (1) to prevent plaintiffs
from “circumvent[ing] the [Private Securities Litigation
Reform] Act’s provisions by . . . filing frivolous and specula-
tive lawsuits in State court, where essentially none of the
PROCTOR v. VISHAY INTERTECHNOLOGY 14527
Reform Act’s procedural or substantive protections against
abusive suits are available” and (2) to prevent a “single state”
from “impos[ing] the risks and costs of its peculiar litigation
system on all national issuers.” H.R. Rep. No. 105-803, at
14-15 (1998) (Conf. Rep.) (internal quotation omitted). Like
the Third Circuit, “[w]e struggle to see how permitting . . .
claims that do not specifically trigger the SLUSA [preclusion
provision] to proceed would lead to either abusive litigation
or to the application of different legal standards to national
securities.” In re Lord Abbett, 553 F.3d at 255. Nothing in
SLUSA’s text or the legislative history suggests that Congress
intended to place roadblocks in the way of federal claims or
non-precluded state law claims; its only discernible intent was
to preclude the use of the class-action device to prosecute cer-
tain state-law class action claims. See Dabit II, 547 U.S. at 87.
In fact, if SLUSA required the dismissal of all claims, pre-
cluded and non-precluded, appearing in the same complaint,
plaintiffs could easily circumvent the statute by dividing their
claims into two separate actions, “one action with the poten-
tially [precluded] state law claims and one or more with the
remaining claims.” In re Lord Abbett, 553 F.3d at 255. Read-
ing SLUSA to allow the survival of non-precluded claims, in
contrast, achieves Congress’s goals without encouraging such
inefficient behavior.
Kircher is not to the contrary. Kircher states in a footnote
that “if a claim is precluded, it may not be maintained, and if
the claim is not [precluded], the federal courts no longer have
any business being involved, as there is no longer any federal
question on which to moor the district court’s jurisdiction.”
547 U.S. at 644 n.12 (internal citation and brackets omitted).
Importantly, in Kircher, the district court concluded that it
lacked SLUSA jurisdiction over the action at the outset
because the plaintiffs’ “claims did not satisfy the ‘in connec-
tion with the purchase or sale’ requirement of the Act’s pre-
clusion provision.” Id. at 638. Nothing in Kircher suggests
that an action over which the district court properly assumed
jurisdiction when the removal notice was filed must be dis-
14528 PROCTOR v. VISHAY INTERTECHNOLOGY
missed in its entirety, rather than—as we next conclude—
remanded to the state court from whence it came. Accord In
re Lord Abbett, 553 F.3d at 256 (distinguishing Kircher).
[16] We therefore join the Second and Third Circuits in
holding that SLUSA does not require the dismissal of all non-
precluded claims appearing in the same complaint as a pre-
cluded claim.
2. Remand under SLUSA
There remains the question to which we just alluded—
whether the district court was required to remand the action
to state court after dismissing claim (2), the SLUSA-
precluded claim. Our case law does not directly govern this
question. We assumed in Falkowski, but did not directly
decide, that a district court could retain jurisdiction over “gar-
den variety state law claims” after a SLUSA-precluded claim
was dismissed. 309 F.3d at 1131. We subsequently stated in
Saxton that “[i]t is not settled whether SLUSA either permits
or requires the remand of particular claims in a single suit that
contains some claims that are preempted, and some claims
that are not.” 494 F.3d at 846.
[17] We now hold that SLUSA requires remand once a fed-
eral court dismisses precluded claims.19 SLUSA contains its
own remand provision, which states that “[i]n an action that
has been removed from a State court pursuant to [SLUSA], if
the Federal court determines that the action may be main-
19
If 28 U.S.C. § 1331 applies to SLUSA-precluded actions, the SLUSA
remand provision, 15 U.S.C. § 78bb(f)(3)(D), would have to be reconciled
with the general supplemental jurisdiction provision of 28 U.S.C. § 1367,
which makes discretionary the remand of claims over which a court exer-
cises supplemental jurisdiction once “the district court has dismissed all
claims over which it has original jurisdiction.” Should both apply, we read
the SLUSA remand provision as a limitation on the discretion accorded
the district court by § 1367, in effect taking away the discretion that
§ 1367 grants.
PROCTOR v. VISHAY INTERTECHNOLOGY 14529
tained in State court pursuant to this subsection, the Federal
court shall remand such action to such State court.” 15 U.S.C.
§ 78bb(f)(3)(D) (emphasis added). Another statute, 28 U.S.C.
§ 1447(c), which applies generally to cases removed from
state court, including SLUSA, see Kircher, 547 U.S. at 641
(applying § 1447(d) to a case involving SLUSA), already
requires remand for wrongful removal. It provides that “[i]f
at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be
remanded.” Thus, we read SLUSA’s remand provision, 15
U.S.C. § 78bb(f)(3)(D), to expand the requirement for remand
to cases in which removal was proper in the first place, but
a federal court has dismissed all SLUSA-precluded claims
and only non-precluded state law claims remain.
[18] In sum, only Proctor’s claims (1) and (3) survive
SLUSA, and the district court should have remanded these
claims to state court after dismissing claim (2).
3. The effect of the Delaware injunction
One possible counter to our analysis in Part B(2) is that the
Delaware injunction may have required the district court to
dismiss claims (1) and (3) rather than remanding them to state
court. We need not decide whether SLUSA requires immedi-
ate remand of non-precluded claims and therefore prevented
the district court from even considering the impact of the Del-
aware injunction at that juncture. As we discuss below, even
if it could entertain the question whether to defer to the Dela-
ware injunction as to the non-precluded claims—claims (1)
and (3)—the district court should not have given effect to the
Delaware injunction. Our conclusion regarding remand is
therefore unchanged.
[19] The district court dismissed the plaintiffs’ action
against Ernst & Young and granted summary judgment
against Vishay solely because of the Delaware injunction. The
district court held:
14530 PROCTOR v. VISHAY INTERTECHNOLOGY
As a matter of federal-state comity, this Court will
not entertain arguments regarding the jurisdiction of
the Delaware Chancery Court unless and until Plain-
tiffs first have sought relief from the injunction in
Delaware. Accordingly, the instant action will be
dismissed.
For the reasons explained below, we hold that in focusing on
the Delaware court’s injunction and in construing the matter
as one of comity, the district court erred.
Under controlling Supreme Court precedent, the district
court was not bound by the Delaware injunction. Donovan v.
City of Dallas, 377 U.S. 408 (1964), held that “state courts are
completely without power to restrain federal-court proceed-
ings in in personam actions.” Id. at 413 (italics added); see
also Hawthorne Sav. F.S.B. v. Reliance Ins. Co. of Ill., 421
F.3d 835, 851 (9th Cir. 2005) (“[S]tate courts may never
enjoin in personam proceedings in the federal courts.”),
amended by 433 F.3d 1089 (9th Cir. 2006). As Donovan elab-
orated, “it does not matter that the prohibition here was
addressed to the parties rather than to the federal court itself.”
377 U.S. at 413.
Nor would the principle of comity allow the district court
to give effect to the Delaware court’s injunction, as the dis-
trict court supposed. The Delaware settlement may have a
preclusive effect on the plaintiffs’ federal action. But the Del-
aware court cannot enforce that preclusive effect via an
injunction that reaches out to constrain the workings of the
federal court. Cf. Baker v. Gen. Motors Corp., 522 U.S. 222,
235 (1998) (“Full faith and credit . . . does not mean that
States must adopt the practices of other States regarding the
time, manner, and mechanisms for enforcing judgments.
Enforcement measures do not travel with the sister state judg-
ment as preclusive effects do; such measures remain subject
to the evenhanded control of forum law.”). As the Delaware
court injunction simply cannot have the effect it purports to
PROCTOR v. VISHAY INTERTECHNOLOGY 14531
have, a federal court has no basis for giving it that effect,
whether as a matter of comity or otherwise. Rather, as in other
circumstances, federal courts are nearly always obliged to
exercise their jurisdiction absent some recognized basis for
not doing so. See New Orleans Public Serv., Inc. v. Council
of New Orleans, 491 U.S. 350, 359 (1989) (noting that “the
federal courts’ obligation to adjudicate claims within their
jurisdiction [is] virtually unflagging” (internal quotation
marks omitted)).
[20] We therefore reverse the district court’s dismissal and
grant of summary judgment as to claims (1) and (3) because
15 U.S.C. § 78bb(f)(3)(D) so required. The Delaware injunc-
tion, even assuming that the district court was bound first to
consider its effect, did not restrict the district court on the
basis of comity or otherwise from considering (and immedi-
ately remanding) the remaining claims. Whether the Delaware
settlement bars these claims in California state court is a mat-
ter for the state court to determine on remand.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
order denying the plaintiffs’ motion to remand the action as
it existed at the time of removal to state court. We AFFIRM
the district court’s dismissal of claim (2), albeit on the alterna-
tive ground of SLUSA preclusion. We REVERSE the district
court’s order granting Ernst & Young’s motion to dismiss and
Vishay’s motion for summary judgment on claims (1) and (3)
and REMAND with instructions to remand this case to state
court now that claim (2) has been dismissed.
AFFIRMED in part; REVERSED in part;
REMANDED.